FEDERAL COURT OF AUSTRALIA

BMM18 v Minister for Home Affairs [2020] FCA 785

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent of and incidental to the appeal.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from orders of the Federal Circuit Court of Australia dismissing an application for the issue of the constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) affirming a decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa under the provisions of the Migration Act 1958 (Cth) (the “Act”).

2    Before examining the grounds of appeal from the decision of the primary judge, it is necessary, having regard to the contended errors on the part of the primary judge, to examine in some detail the reasoning process of the Tribunal engaged by the contended errors on the part of the primary judge. I will return to the “correction of error” principle later in these reasons.

3    The appellant is a citizen of Papua New Guinea (“PNG”). She first arrived in Australia on 10 August 2015 and departed in December 2015 before returning to Australia on 16 March 2016. She had previously entered Australia under a tourist visa. At the expiration of her prior visa on 16 June 2016, the appellant lodged an application for a Protection visa which is the subject of these proceedings.

4    The appellant claimed that her parents had passed away in PNG around 22 years ago and her brother “MD” passed away about 20 years ago. She claimed that she had been raised by her maternal aunt until her aunt’s death in 2015 when she went to live with her maternal uncle “JK”. She claimed that she ran away from her uncle in August 2015. She claimed never to have been married, nor to have had any children. The Tribunal observes that in her application for a Protection visa, she claimed to have suffered domestic and family violence including rape by her uncle and cousin; deprivation of basic needs such as further education; constraints upon seeing her boyfriend and other friends; that the police were corrupt and could not help her; that if she returned to PNG her life would be in danger; and that she feared returning to PNG as doing so may lead to her death: paras 4-6, Tribunal decision.

5    At para 7, the Tribunal notes that the delegate found that when the appellant made a previous application for a tourist visa, she had contended that she was married to “SD”; that she had two sons, one named “J” and the other, “B”; and that she, “SD” and the two sons had resided with the appellant’s parents and her siblings, a sister and brother, at the same address.

6    Against the background of those claims, the Tribunal examined whether it could reach a state of satisfaction for the purposes of ss 36(2) and 65(1) of the Act as to whether the appellant held a well-founded fear of persecution for any of the reasons identified in s 5J(1) of the Act and whether the appellant otherwise satisfied the requirements of the Act in relation to her application.

7    At para 18, the Tribunal described the appellant’s evidence at the hearing as “evasive, incomplete, lacking in relevant detail and frequently implausible”.

8    The Tribunal observes at para 18 that the appellant was also given an opportunity to provide further documents. The Tribunal observes, also at para 18, that the appellant did so. The Tribunal observes that the documents included three statements by Ms Bernadette Moses Morris; some email exchanges between Ms Moses Morris and Mr Graeme Tudor and Mr Ting Seng (“Thomas Ting”), relating to the appellant’s claims; and a statement by Mr Tudor and other documents.

9    At para 20, the Tribunal notes the appellant’s claims that she first came to Australia in September 2015 when she travelled to Darwin with her friend, Bernadette, to attend a conference. She returned to PNG after three months, in December 2015. At para 20, the Tribunal notes the evidence given by the appellant that she returned to Australia in March 2016 because she was “terrified of returning to PNG” as she was being “kept as virtually a slave and was beaten and raped by her cousin and uncle”. The appellant applied for a Protection visa in June 2016.

10    At para 21, the Tribunal notes the appellant’s evidence that she returned to PNG from Australia in December 2015 (observing that she did so even though she said that she was “fearful” of her cousin and uncle and had been “raped and beaten” by them), as she had no relatives in Australia and did not know that she could stay in Australia. The Tribunal notes the appellant’s evidence that her friend, Bernadette, filled out the relevant forms for her.

11    At para 22, the Tribunal notes the appellant’s evidence that as to her passport, applied for in 2013, her friend, Bernadette, had applied for the passport and kept it because the appellant’s cousin was a drug dealer and if her cousin or uncle were to find the passport “they would kill her”. At para 22, the Tribunal notes that the appellant had “no evidence of what had happened to her in PNG” and nor were there any police or hospital reports supporting the claimed events. As to applying for a Protection visa under the provisions of the Act, the Tribunal notes, at para 23, the appellant’s evidence that she contacted some members of the Church she attended, who told her what steps she could take.

12    At para 24, the Tribunal notes that it put to the appellant that it found her account of why she returned to PNG from Australia in 2015 “to be implausible”. The Tribunal put to her that if she was in genuine fear of her life and had suffered the harm she claimed, the Tribunal would have expected her to remain in Australia. The Tribunal notes the appellant’s evidence that she had been told that her visa was about to expire so she had to return to PNG. The Tribunal notes the appellant’s claim that it was not until she returned to PNG that she remembered that her Church friend had offered to help her. The Tribunal notes the appellant’s evidence that when she returned to PNG she lived with her friend, Bernadette, for three months before ultimately travelling to Cairns and then to Brisbane. The Tribunal notes the appellant’s evidence that Bernadette helped her to obtain the visa and tickets to travel to Australia. The appellant ultimately sought out “RAILS Refugee and Immigration Legal Service Inc” (“RAILS”). As to that matter, the Tribunal notes the appellant’s evidence in these terms at para 25:

[The appellant] said that she found out about a place to stay in Cairns when she arrived and asked the security guard who gave her some advice. She says that she went to Brisbane the next day and then went to Gatton to [stay] with a PNG lady. She said that after two months she didn’t know what to do and someone told her about RAILS so she went to Brisbane to find them. She met someone on the train who told her where it was but she couldn’t find it. The next day she saw the same person on the train who took her to RAILS.

13    At para 26, the Tribunal notes that after the hearing, the appellant provided the Tribunal with a statement from her friend, Bernadette. At para 26, the Tribunal notes that Bernadette “states that the applicant travelled to Brisbane with a church friend for sightseeing for the duration of her tourist visa before returning to PNG”. The Tribunal notes, at para 27, that Bernadette states that she became aware from friends in PNG that the Australian Government can “assist victims”, such as the appellant, and so she decided to help the appellant to “get to Australia to seek assistance”.

14    At para 28, the Tribunal says this:

These statements indicate to the Tribunal that the applicant not only knew, but had assistance from friends in Queensland prior to her visit here. The Tribunal does not accept the applicant’s account that she only heard about protection applications when someone directed her to RAILS towards the end of her second trip to Australia in 2016. The Tribunal has formed the view that the applicant’s sole intention upon returning to PNG in December 2015 was to contrive a way of returning to Australia in order to seek protection.

[emphasis added]

15    As to the statements of Bernadette, the Tribunal says this at para 29:

The Tribunal puts very little weight on statements by Bernadette that the applicant is not married and has no children. The Tribunal has formed a view that the applicant and Bernadette have contrived the story of the agent in order to evade responsibility for the false claims and false information they have both provided to the [D]epartment of [I]mmigration.

16    At para 30, the Tribunal observes that despite Bernadette having been given an opportunity to provide information about the alleged agent acting for the appellant, “Bernadette has chosen not to identify him, stating vaguely that the applicant’s [application] was completed by an agent with information that neither she, nor the applicant provided to him”.

17    At para 30, the Tribunal says this:

The Tribunal does not accept that the applicant was or is unaware of the agent’s name, or that she was or is unaware of the information provided to that agent in relation to [the appellant’s] husband and sons.

18    At para 31, the Tribunal notes that it put to the appellant that she had previously provided information to the Department in her tourist visa application that included information that she claimed to have a husband named “S” and two sons, “J” and “B”; that she resided with her parents and her two siblings; and that in the documentation previously provided she, “S”, “J” and “B” all had their dates of birth and each address recorded. The Tribunal notes at para 31 that it asked the appellant whether this information was true. The Tribunal notes the appellant’s response and related matters in the following terms at para 31:

… [S]he claimed that it was not [true]. She said that she just signed the application after she gave the information to Bernadette and her agent. The Tribunal put to her that it seemed [an] extraordinary effort to invent a husband and two sons, along with parents and siblings and she said that she didn’t know anything about it. The applicant strongly denied being married, having children, or that her parents and siblings were alive. The Tribunal put to the applicant that she signed a form with that information and if it were incorrect, false or misleading then she would not pass the PIC4020 [a reference to “Public Interest Criterion 4020” otherwise known as PIC 4020]. Asked for her response she claimed that she didn’t know anything about the forms, but that she provided the correct information to Bernadette and signed the form.

[emphasis added]

19    At para 31, the Tribunal, immediately after the passage quoted above, said this:

The Tribunal put to the applicant that if it formed a view that she did not meet PIC 4020 she would be barred from re-entering Australia for three years. The applicant insisted that she … was not married and did not have any sons. She said she only had a long term friend named Duncan.

20    At para 32, the Tribunal notes that it asked the appellant whether she completed her Protection visa application and she said that she did not. The Tribunal notes that it asked her whether she knew “what the claims were” and she said that she did not. The Tribunal notes that it asked the appellant what protection claims she wished to make. The Tribunal notes the appellant’s responses to that question.

21    As to those responses, the Tribunal notes this at para 33:

The applicant told the Tribunal that she was scared to go back to PNG because her cousin and her uncle would kill her. She said that they would want her dead because she had run away from them. The Tribunal put to her that she did, in fact, return to PNG in 2015 after she was in Australia and [the Tribunal] suggested that she was not harmed at that time and could return [to PNG]. She claimed that she couldn’t go back because she had nowhere to stay. She had no friends or family. Asked if the church would help she said that they would not. Asked why they wouldn’t help she said that they wouldn’t.

22    At para 34, the Tribunal notes that the appellant was asked whether she had any documents or any other evidence to support her claims including, for example, corroborating statements from Bernadette. The Tribunal notes that the appellant said she did not have such statements although the Tribunal says that the appellant subsequently sent several statements to the Tribunal from Bernadette seeking to corroborate the claims of the appellant. At para 34, the Tribunal notes the appellant’s evidence that “the pastor sent a letter saying that she wasn’t married but she didn’t know where that was”. The Tribunal, at para 34, observes that it has located a document on the departmental file from Pastor Perry Noah of Potters House Christian Fellowship stating that the appellant has been known to him since 2009 and the appellant was not married. The Tribunal then quotes from Pastor Noah’s letter (which is undated) in these terms: “[S]he is a young lady not committed to a married life as stated in her visa application done by the agents”.

23    At para 35, the Tribunal asked the appellant if she was in contact with anyone in PNG including her friend, Bernadette, Duncan or any of her relatives “and she claimed that she was not”. At para 35, the Tribunal says this:

The Tribunal put to her that it seemed incredible that she would not remain in touch with Bernadette after all the things that she did for her including getting a passport and tickets and a visa to Australia. The applicant said that she talked to her last year but she was afraid to talk to her in case her cousin found out. She said that if her cousin found out they were talking he would kill her. The Tribunal asked the applicant how her cousin would find out that she and Bernadette were talking. She claimed it was because Bernadette helped her.

24    At para 36, the Tribunal notes that it put its concern about the factual assertions of the appellant to her in this way:

The Tribunal put to the applicant that it was finding her account of what happened to her in PNG and her travel to Australia implausible and without a ring of truth. The Tribunal put to the applicant that despite claiming to be afraid for her life, she nevertheless returned to PNG in 2015. The Tribunal put to her that she claims no knowledge of anything in relation to her visa application and the declaration of a husband, children, parents and siblings. The Tribunal put to her that she nevertheless managed to get herself to Australia a second time and find accommodation and make her own arrangements to travel to Brisbane from Cairns and on to Gatton. The Tribunal put to the applicant that these two parts of her account seemed at odds. The Tribunal asked for her comments and put to the applicant that if it formed a view that her account of events was untruthful it would form a reason or part of the reason for affirming the decision.

[emphasis added]

25    At para 37, the Tribunal notes that the appellant claimed that she had told the truth. It notes that the appellant contended that “she would die if she was returned to PNG” and that she said that she “felt safe in Australia and it was a good place”.

26    At para 38, the Tribunal observes that it spoke to the appellant’s “support person” who told the Tribunal that he found the appellant to be a reliable, honest and truthful person who would never set out to deceive the Government.

27    The Tribunal, at paras 41 and 43, note that part of its task of fact-finding may involve making an assessment of the credibility of an applicant and that if an applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt. The Tribunal also notes other matters of principle at paras 42 and 44 engaged by the process of making an assessment of whether the account given by an applicant is credible.

28    At para 46, the Tribunal observes that the appellant claims that she has a well-founded fear of persecution from her cousin and her uncle. The Tribunal observes that it has considered the appellant’s claims based upon a contended well-founded fear of persecution “for reasons of her being a woman who has fled an abusive family” and “for reasons of being a woman in Papua New Guinea”. The Tribunal notes again at para 46 that the appellant claims that as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk that she will be killed.

29    At paras 47, 48, 49 and 50, the Tribunal considers aspects of country information.

30    At para 51, the Tribunal says this:

The Tribunal does not accept that the applicant suffered domestic or family violence at the hands of her cousin and uncle, or indeed anyone whilst she lived in PNG.

[emphasis added]

31    At para 52, the Tribunal expressed this observation:

The applicant’s evidence at the hearing was vague and lacked credibility. She claimed that she had been violently raped, kept as a virtual slave and beaten daily by her cousin and uncle. She has provided no corroborating evidence of this in the form of police reports, or hospital admissions.

[emphasis added]

32    On the question of the plausibility of the appellant’s account, the Tribunal said this at para 53:

Despite claiming that she suffered these horrors, when she had a chance to remain in Australia when she travelled here with her friend Bernadette in September 2015 and remained for three months, the applicant did not attempt to seek out ways that she might stay. She claims that she didn’t know anyone and didn’t know how to go about it. And yet, on her second trip she seemed to have developed a clear understanding about how to go about remaining in Australia on her own. Her account of these events was itself implausible. …

[emphasis added]

33    At para 53, the Tribunal also then makes the following observation:

In any case, the applicant nevertheless returned to PNG and remained for several more months, unmolested and undetected prior to returning to Australia. The Tribunal does not accept that someone who claims to have suffered the horrors of abuse that she claims would have returned to PNG under any circumstances.

[emphasis added]

34    As to the Tribunal’s assessment of what might be expected of a person in the circumstances claimed to have occurred in the case of the appellant, the Tribunal said this at para 54:

Despite being in Australia for over two years the applicant has not sought any help in the form of domestic violence counselling, for example, despite [having] access to RAILS. The Tribunal would have expected someone that has suffered as the applicant claims to have suffered, to have sought out and utilised the extensive and free counselling that is available to women in these circumstances in Australia. She did not.

[emphasis added]

35    At para 55, the Tribunal makes observations about its treatment of the letter from Pastor Noah which says that the appellant is not a married woman. The Tribunal observes that “in the context of all the circumstances”, the Tribunal is not minded to give the document “counterbalancing weight”. At para 55, the Tribunal also notes that the appellant and Mr Tudor assert that the appellant is a truthful woman and would not deliberately deceive the Government. The Tribunal says that it notes Mr Tudor’s concern, in particular. The Tribunal observes that the evidence before it is “clearly that the applicant declared a husband, son, parents, siblings and children in her visitor visa application that she signed and submitted and which resulted in the grant of a visitor’s visa”. The Tribunal then says this at para 55:

Mere protestations of innocence are utterly insufficient in these circumstances, particularly as the applicant has provided no reliable evidence to the contrary and no persuasive argument as to why she would unknowingly sign a false document.

36    At para 56, the Tribunal expresses its conclusion concerning the account given by the appellant, in these terms:

The Tribunal finds the account provided by the applicant of her reasons for departing PNG and coming to Australia to seek protection to be fabricated in its entirety.

[emphasis added]

37    In the result, the Tribunal found the chance of the applicant facing significant harm on return to PNG for the reasons claimed, or indeed for any reason, “remote”.

38    Accordingly, the Tribunal affirmed the decision not to grant the appellant a Protection visa.

39    The concluding paragraphs of the decision as published to the parties (paras 58-62) are also important. At para 58, the Tribunal finds that the appellant does not have a well-founded fear of persecution should she return to PNG and, for the reasons given, the Tribunal was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

40    At para 60, the Tribunal observes that “having found the applicant’s account of her reasons for departing PNG and for not pushing to return are entirely fabricated”, the Tribunal was “therefore not satisfied” that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

41    At para 61, the Tribunal observes that the appellant does not satisfy the criterion of s 36(2) of the Act.

42    At para 62, the Tribunal affirmed the decision not to grant the appellant a protection visa.

43    These elements of paras 58-62 are drawn from the text of the “Statement of Decision and Reasons” published to the parties. That “version” of the Statement of Decision and Reasons appeared in the Court Book before the Federal Circuit Court. However, the Statement of Decision and Reasons published by the Tribunal on “Austlii” contains a new paragraph 62 which adds a “finding” in these terms:

62.    The Tribunal also finds that the applicant does not meet PIC 4020.

44    Thus, at some point after publication of the decision (and reasons) to the parties, the decision-maker elected to add another finding presumably on the footing that the decision-maker regarded the additional finding as material to the decision. The addition of this paragraph has been the subject of supplementary submissions on appeal on behalf of the appellant and responsive submissions from the Minister.

45    The appellant sought judicial review before the Federal Circuit Court of the Tribunal’s decision on three grounds of contended jurisdictional error.

46    First, the appellant contended that the Tribunal’s “findings in relation to the jurisdictional facts for the purposes of s 36(2)(a) and s 36(2)(aa) of the [Act] were legally unreasonable or premised on irrational or illogical reasoning”. That ground was said to find expression in a number of ways. The appellant contended that the Tribunal made findings without, or with insufficient, evidence.

47    The findings in that category were the finding at para 28 that the appellant’s sole intention upon returning to PNG in December 2015 was to contrive a way of returning to Australia in order to seek protection. The appellant also contended that the finding at para 54 that the Tribunal would have expected the appellant to have sought out and utilised domestic counselling services available to women in Australia if she had suffered domestic violence, was in that category. The appellant also contended that the finding at para 56 that the appellant’s account of her reasons for coming to Australia to seek protection was “fabricated in its entirety”, was also in that category. The appellant contends that the finding at para 56 was made in reliance on the findings at paras 28 and 54, which were challenged before the primary judge, and in reliance upon a consideration, said to be irrelevant to a review of the decision to refuse the appellant’s application for a protection visa, of whether the appellant satisfied the requirements of “Public Interest Criterion 4020” (“PIC 4020”).

48    The second ground of challenge before the primary judge was that the Tribunal took into account whether the appellant satisfied PIC 4020, in making the “fabrication finding” at para 56 as a step along the way to deciding whether it could be satisfied (or not) about the statutory matters relevant to its review of the delegate’s decision.

49    The third ground of challenge before the primary judge was that the Tribunal failed to afford the appellant procedural fairness in that the Tribunal was obliged to comply with s 424A(1) of the Act but failed to do so. That ground was also said to find expression in a number of ways. The appellant contended that the circumstance that the appellant’s application for a visitor’s visa included information about a spouse and children which the appellant confirmed was not true, was “information” that the Tribunal considered would be the reason or part of the reason for affirming the decision (and thus “adverse information”). The appellant contended that that being so, the Tribunal was obliged, but failed, to comply with s 424AA(1) of the Act when it conducted a hearing on 15 February 2018 during which: it invited the appellant to comment on the adverse information stating that “it will form the reason or part of the reason why I will affirm the decision”; failed to correctly explain or ensure, as far as was reasonably practicable, that the appellant understood why the information was relevant; failed to advise the appellant that she could seek additional time to comment; and gave its decision after one business day after the hearing, effectively depriving the appellant of a reasonable opportunity to provide further documents.

50    As to the elements of ground 1, the primary judge found that the challenged finding at para 28 was not supported by evidence and thus not open: primary judge at [11] and [12]. The primary judge found that the challenged finding at para 54 was unsupported by any evidentiary basis: primary judge at [12] and [13]. The primary judge found that the challenged finding at para 56 was open on the evidence. As to the Tribunal’s finding at para 56, the primary judge said this of paras 55 and 56 at [21], [22] and [23] of the reasons:

21.    It is, in fact, the case that, as was common ground at the hearing, the information contained in the tourist application form was false. Paragraph 55 of the reasons refers to that falsity and constitutes a basis upon which an adverse credibility finding might have been made by the Tribunal against the applicant. That was made clear in the last sentence of paragraph 55 of the reasons. Accordingly, there is no demonstrated error on the part of the Tribunal in having made the adverse findings as to credibility, which it did, in those circumstances.

22.    It has not been demonstrated that the AAT fell into error by arriving at a decision which was legally unreasonable or otherwise premised on irrational or illogical reasoning. The AAT, clearly, did not believe the applicant would suffer harm if she was returned to Papua New Guinea (more particularly, Port Moresby). The Tribunal took into account the fact that the applicant had returned to Port Moresby in December 2015 pointing out that someone who expressed the fears which she did, would have been unlikely to do so had those fears been real.

23.    There was evidence upon which to base the findings which were made. The claims made in ground 1 of the application for review have not been made out and are without merit.

51    As to ground 2, the primary judge was taken to the following exchange between the Tribunal and the appellant as set out at [25] of the primary judge’s reasons:

Senior Member: Well, then, you shouldn’t have signed it. Not only do we now have to sort out your protection claims, because you have provided false and misleading information to the department and to me, you fail to meet Public Interest Criteria 4020, which says that if you produce false and misleading information to the department, your visa will be refused and you will be barred from entering Australia for a period of up to three years. So this is important because, in effect, it will prevent you from re-entering Australia for up to three years and will form the reason, or part of the reason, why I will affirm this decision, so I would like to view your comments about that.

Applicant: I didn’t know anything.

52    As to the question of the contended irrelevant consideration of PIC 4020, the primary judge said this at [26]-[29]:

26.    It was submitted on behalf of the applicant that by the senior member having stated in the paragraph attributed to him that the provision of false and misleading information formed the reason, or part of the reason, why he would affirm the decision of the delegate, that the AAT was having regard to an irrelevant consideration. The irrelevant consideration asserted was that regard ought not to have been had to the criteria relating to the issue of a tourist visa, when the subject matter for consideration by the AAT were those criteria relevant to the grant of a protection visa.

27.    It was asserted that because the senior member had said that his consideration of those matters would form the reason, or part of the reason, why he would affirm the decision of the delegate, constituted an error which permeated the whole decision-making process. Had it been the case that under the heading “Findings and Reasons” the AAT had made specific reference to PIC4020, and its breach by the applicant when making her application for a tourist visa, there may have been merit to the submission made on behalf of the applicant in that regard.

28.    However, as referred to earlier, the fact of the making of a false declaration in one application was a matter which was of obvious relevance to the AAT when considering the circumstances surrounding the [applicant] having made [an] application for a protection visa at a later time. It is also relevant that no mention was made of PIC4020 and any breach of its criteria as constituting a basis for the decision to refuse the protection visa.

29.    There is no merit in that claim and ground 2 is dismissed.

53    As to ground 3, the primary judge concluded that the contended “adverse information” was not “information” for the purposes of s 424A or s 424AA of the Act because the relevant subject matter “went to issues of credibility”: primary judge at [39]. In reaching that view, the primary judge accepted, as informative, an illustration by Heerey J in MZXBQ v Minister for Immigration and Citizenship and Anor (2008) 166 FCR 483 at [27] (“MZXBQ”) to the effect that evidence that undermines an applicant’s claims to hold a well-founded fear of persecution for a Convention reason is entirely different in character to evidence (in the illustration) of a third party which goes “only to the applicant’s credibility”. The primary judge concluded that the adverse material went only to the question of the appellant’s credit and was thus not “information” for the purposes of ss 424A and 424AA of the Act.

54    The grounds of appeal relied upon by the appellant are these:

Grounds of appeal

1.    His Honour erred in failing to find that the second respondent’s finding at paragraph [56] of the second respondent’s reasons for decision, that the account provided by the appellant of her reasons for coming to Australia to seek protection were “fabricated in their entirety”, was irrational, illogical or unreasonable, taking into account his Honour’s findings:

a.    at [11]-[12] of the judgment, that there was no evidence to support the second respondent’s findings at paragraph [28] of the second respondent’s reasons;

b.    at [13] of the judgment, that the second respondent’s finding at paragraph [54] of the second respondent’s reasons was insupportable;

and for that reason erred in failing to set aside the decision of the second respondent on the basis of jurisdictional error.

2.    His Honour erred in failing to find that the “adverse information” referred to in ground 3 of the amended application filed by leave on 12 September 2018 was information attracting the obligations arising pursuant to section s424A or 424AA of the Migration Act 1958 and for that reason erred in failing to set aside the decision of the second respondent on the basis of jurisdictional error.

3.    His Honour erred in failing to find that the decision of the second respondent was affected by jurisdictional error on the ground that the second respondent took into account an irrelevant consideration because:

(a)    The second respondent took into account whether the applicant satisfied PIC4020;

(b)    PIC4020 is not a criterion included in Schedule 2 of the Migration Regulations for a Protection visa (subclass 866).

55    It almost goes without saying that the source of federal jurisdiction exercised by the Federal Circuit Court arises as a statutory conferral by s 476 of the Act of what is expressed to be “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, that is, a jurisdiction in migration decisions to grant the constitutional writs of mandamus or prohibition or both (and a jurisdiction to grant an injunction). Although s 75(v) does not expressly refer to the constitutional writ of certiorari, the conferral of jurisdiction on the High Court carries with it an “ancillary” or “incidental” authority to grant the writ of certiorari: Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82, Gaudron and Gummow JJ at [14]. The constitutional writs are the remedial mechanism by which, as an exercise of the judicial power of the Commonwealth, officers of the Commonwealth are subject to supervision so as to ensure that they stay within the limits of the jurisdiction conferred by the relevant Act as the source of the repository’s power or authority. Thus, the primary judge was called upon to decide whether, according to the grounds of challenge, the Tribunal had engaged in jurisdictional error.

56    When the Federal Court of Australia exercises its appellate jurisdiction to determine whether the primary judge engaged in error, it does so by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth). An appeal by way of rehearing requires the appellate court, unless it dismisses the appeal or remits the matter for further hearing, to give the judgment which, in its opinion, ought to have been given in the first instance, having regard to the contended errors. An appeal by way of rehearing is a procedure for the “correction of error”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”), Gageler J at [30]. The appellate court must decide for itself, within the limits of the grounds of appeal, whether the primary judge’s conclusion on the relevant matters is “right or wrong”: SZVFW, Gageler J at [56].

57    As to ground 1 of the appeal, the appellant contends that the Tribunal’s critical finding as to credibility in para 56 of the Tribunal’s reasons (fabrication of the appellant’s account in its entirety) was underpinned by the findings at paras 28 and 54 of the reasons, and because the primary judge found that neither finding was supported by any evidence (primary judge at [11] and [12] as to para 28; primary judge at [12] and [13] as to para 54), the primary judge ought to have found that the Tribunal, in reaching its decision in circumstances where there was “no evidence” to support those findings and “no logical or rational basis for them”, engaged in jurisdictional error.

58    The appellant contends that that “should have been the end of the matter” and thus, the primary judge erred in concluding that the finding at para 56 was “at least open to the Tribunal on the evidence”. The appellant contends that the finding that the appellant held a “sole intention … to contrive a way of returning to Australia in order to seek protection” (para 28) and the finding that the appellant did not take a step for over two years to seek domestic violence counselling and thus did not act consistently with the basis for her claims of a real risk of serious harm should she return to PNG (para 54), were “significant steps” along the way to the finding at para 56 that the appellant’s account of her asserted grounds was entirely fabricated.

59    Thus, the contention is that the credit finding at para 56 which characterises the appellant’s account of her reasons for departing PNG and returning to Australia to seek protection as an entire fabrication, is properly open to challenge on the basis set out at [57] of these reasons: that is, it is a finding “underpinned” by findings which are said to be susceptible of challenge on a “no evidence” ground and a ground of “illogicality and irrationality”.

60    As to the principles informing the question of whether an adverse credit finding reveals jurisdictional error, these matters should be noted. It is often said, in reliance on the observations of McHugh J sitting as a single judge and exercising the High Court’s original jurisdiction in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] that a finding on credibility (in that case the Tribunal’s finding that the applicant’s claims were “utterly implausible” which was “essentially a finding as to whether the [applicant] should be believed in his claim”), is “the function of the primary decision maker par excellence”. However, the Full Court has observed that “nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds [CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 (“CQG15”), McKerracher, Griffiths and Rangiah JJ at [37]] and there is a risk that a mechanical use of the phrase ‘par excellence’ [or ‘blindly repeating McHugh J’s comments in Ex parte Durairajasingham’: ARG15 and Others v Minister for Immigration and Border Protection (2016) 250 FCR 109, Griffiths, Perry and Bromwich JJ at [83](d)], as a formula, fails sufficiently to appreciate this important reality”: CQG15 at [37].

61    The Tribunal might engage in errors properly characterised as “jurisdictional” if it reaches findings of fact on the question of whether the applicant should be believed in his claim, “or, indeed, other findings of fact on any basis” (CQG15 at [38]), where there is no logical or probative basis for the finding; a failure to afford procedural fairness; unreasonableness; or any other error not falling within any particular fixed categories or formulas but which upon detailed “case specific” analysis of the decision-maker’s reasons for decision reveals conduct giving rise to a conclusion that the error is truly jurisdictional as conduct going beyond the limits of decisional authority: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (“SZRKT”), Robertson J at [77]. An example of jurisdictional error in fact-finding which may occur and which may fall into the last category just described is where a finding on credit on an objectively minor matter of fact is relied upon as the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim: SZRKT at [78]. Whether the constitutional writs issue in a relevant case might well engage the principles in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Kiefel CJ, Gageler and Keane JJ at [24]-[31], Edelman J at [60]-[74].

62    That, of course, does not mean that findings of the Tribunal about whether the applicant should be believed in his claim, once challenged on the ground of jurisdictional error, fall to be determined as an evaluative judgment of the Federal Circuit Court or the Federal Court on appeal. The question before the primary judge was whether there was “no evidence” to support the findings and whether there was “no logical or rational basis” for the findings. As to the caution to avoid de facto merits review of fact-finding and especially assessments of credit (and related matters): see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), Crennan and Bell JJ at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451, Flick J at [14] and [15]; and [14]-[23].

63    As to findings leading to a conclusion as to whether the decision-maker can reach a state of satisfaction (or not) for the purposes of s 36(2) and s 65(1) of the Act, impugned on grounds of illogicality and irrationality, the following principles identified by Crennan and Bell JJ in SZMDS at [130]-[135] should be noted:

130    In the context of the Tribunal’s decision here [which equally applies to the IAA’s decision in this case], “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of the argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact [the relevant state of satisfaction], it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.

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

132    Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. …

133    … [T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

…

135    On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

[emphasis added]

64    At [15], the primary judge found that the Tribunal’s conclusion at para 56 of the appellant’s entire fabrication of her account of her reasons for departing PNG and returning to Australia to seek protection, was “at least, open to the Tribunal on the evidence” as the finding was supported by adverse findings as to credit which were open to the Tribunal to make. The finding at para 55 that “the evidence is clearly” that in her earlier visitor visa application she “declared” and “signed and submitted” information concerning a husband, children, parents and siblings, which was untrue; which conduct was unanswered by any reliable evidence to the contrary; which conduct was unanswered by any “argument” (that is, any explanation) “as to why she would unknowingly sign a false document”, was open. Moreover, the appellant accepted that the information described in the application form was not true. The Tribunal noted that the explanation offered was that the appellant “just sign the application” having given the information to Bernadette and her agent. It was open to the Tribunal to accept or reject that explanation and even if the Tribunal accepted the explanation, it remained open to the Tribunal to conclude that the explanation did not “answer” the Tribunal’s concern about the appellant’s willingness to sign a tourist visa application in the circumstances she described.

65    Apart from that difficulty, the Tribunal found the appellant’s explanation of her return to PNG in circumstances where she claimed to have suffered domestic and family violence including rape by her uncle and cousin (and harm of the kind described at para 52 of the Tribunal’s decision; see [31] and [32] of these reasons), was “itself implausible”. That finding was based on a consideration of the significant degree of harm claimed to have occurred (the Tribunal having described at para 53, the harm identified at para 52 as the “horrors of abuse”); the opportunity the appellant had to remain in Australia between September 2015 and December 2015 when a protection application might have been made; and, an explanation that she did not know anyone or how to go about making a protection visa application.

66    Thus, it simply cannot be said that there was “no evidence” before the Tribunal to support the adverse credibility findings concerning those matters described at [64] and [65] of these reasons. Those findings provided a proper basis on which the Tribunal could reach a finding that it did not accept the appellant’s claims of harm and that it could not be satisfied that the appellant held a well-founded fear of a real risk of significant harm on the basis claimed. In fact, the Tribunal was satisfied that the claims were entirely fabricated.

67    I accept the submission of the Minister that throughout the reasons the Tribunal describes the questions and propositions put to the appellant reflecting the Tribunal’s concerns about particular matters, and the appellant’s responses, which led the Tribunal to conclude that the appellant’s evidence at the hearing was evasive, incomplete, lacking in relevant detail and frequently implausible.

68    Having regard to the observations of Crennan and Bell JJ in SZMDS quoted at [63], the impugned findings cannot properly be described as illogical or irrational as there was a basis upon which the Tribunal could reach the finding it reached. It was not the position that the conclusion reached by the Tribunal was “simply not open on the evidence” or that there was “no logical connection between the evidence and the inferences or conclusions drawn”.

69    The appellant contends that the primary judge correctly concluded that there was no proper basis for the findings at paras 28 and 54 and those findings “permeated” the finding at para 56. In a sense, the appellant says that the well of fact-finding on the question of credibility was poisoned by those earlier errors. Although the primary judge concluded that the finding at para 28 concerning the appellant’s intention in returning to PNG was to contrive a way of returning to Australia in order to seek protection, and the finding at para 54 about the appellant failing to seek out domestic counselling in Australia, were not supported by evidence, there nevertheless remained an independent basis in the evidence in reliance upon which the Tribunal could properly reach the conclusion at para 56: see [64]-[67] of these reasons.

70    As to ground 2, the appellant contends that the primary judge erred by concluding that the information concerning the circumstance that the appellant had signed a previous tourist visa application containing false information, went only to the question of the credibility of the appellant with the result that information concerning that matter was not “information” for the purposes of s 424A and s 424AA of the Act. At [31], the primary judge noted the following matter:

31.    At the outset, counsel for the [Minister], Ms Forder, properly conceded that had there been a requirement to do so, neither of the obligations prescribed in section 424A or 424AA of the Act had been complied with. Rather, it was submitted by counsel on behalf of the [Minister] that there was no “information” which, relevantly, gave rise to the exercise of the obligations imposed by either such section.

71    Section 424A(1) provides that, subject to subsections (2A) and (3), the Tribunal must give the applicant, in the way the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review; and ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of the relevant information being relied on in affirming the decision under review; and invite the applicant to comment on or respond to it. Section 424A(2A) provides that the Tribunal is not under an obligation under s 424A to give particulars of information if the Tribunal gives clear particulars of the information to the applicant and invites the applicant to comment on or respond to the information under s 424AA. As to subsection (3), it is in the following terms:

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

72    Section 424AA provides that if an applicant is appearing before the Tribunal because of an invitation under s 425, the Tribunal may orally give the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under the review; and if the Tribunal does so, the Tribunal must comply with the obligations at s 424AA(1)(b)(i) to (iv).

73    As the primary judge notes, the Minister conceded at the hearing that the obligations arising under s 424A and s 424AA had not been complied with. The question is whether the sections were engaged in the circumstances.

74    The term “information” is not defined in the Act and thus the Minister correctly observes that the term must be considered in, and derives its content from, the context in which it appears in those sections. The starting point is to note that the obligation is a mandatory requirement that the Tribunal must give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The phrase “the Tribunal considers would be the reason, or a part of the reason, for affirming the decision”, marks out the boundary of the phrase “any information”. The statutory purpose served by s 424A(1) and s 424AA(1) is to provide the applicant with an opportunity to comment on or respond to any such information coupled with an obligation on the part of the Tribunal to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision.

75    The primary judge, as described earlier, reached a conclusion about the question of whether the sections were engaged by concluding that information about the circumstance that the appellant had signed a previous tourist visa application containing false information, was not “information” for the purposes of those sections, having regard to the reasoning of Heerey J in MZXBQ: see [53] of these reasons. In those reasons, Heerey J postulated an illustration which was designed to demonstrate a distinction between information relevant to a question of the credibility of an applicant on the one hand, and information relevant to one of the factors about which the decision-maker must form a view in reaching a state of satisfaction (or not) for the purposes of the statutory integers of the protection application. At [37], the primary judge referred to a passage at [27] in MZXBQ. Before noting the terms of that passage, it should be noted that Heerey J had earlier, at [16], noted a number of observations of the majority (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [15]-[22] including [17] and [18] in these terms:

[17]    Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the tribunal”, or “the tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming the decision under review.

[18]    Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …

If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

[emphasis added]

76    At [27], Heerey J said this:

27    SZBYR … and in particular [17] of the majority judgment, essentially says that the Tribunal must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” [a term drawn from [17] in SZBYR] his claims to have [a] well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. The assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.

[emphasis added]

77    The Minister also draws attention to [29] in the reasons of Heerey J which takes up the observations in SZBYR at [17] concerning the use of the future conditional tense (would be), in this way:

29    It can also be noted that the section speaks of information that “would” be the reason etc, not “could” or “might”. This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant’s claims [a deliberate selection of the language at [17] in SZBYR].

[emphasis added]

78    The construction to be given to s 424A again arose for consideration in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 (“SZLFX”) and the Court (French CJ, Heydon, Crennan, Kiefel and Bell JJ) said this at [20]-[25]:

20    This Court has construed s 424A in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs and in SZBYR v Minister for Immigration and Citizenship. There was no challenge to those authorities or the principles they contain, the emphasis in argument being on whether or not the file note in question was “the reason, or part of the reason, for affirming the decision” under review and how that was to be assessed. Notably, it was contended by the first respondent that upon a proper review of the evidence the Federal Magistrate was correct in his conclusions.

21    In SZBYR it was stated [at [15]] that:

“Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’.”

22    Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a “rejection, denial or undermining” [SZBYR at [17]] of the review applicant’s claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT’s failure to mention the file note.

23    This approach was, with respect, flawed given the following observations in SZBYR [at [18]]:

“[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of para (a) of s 424A(1). … However, broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”

24    As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT’s “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.

25    As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.

79    The Minister also places emphasis upon a decision of the Full Court of this Court in SZVCZ v Minister for Immigration and Border Protection (2017) 252 FCR 540 and the observations of Markovic J at [56] (Siopis J agreeing at [3]). That decision is emphasised because it is said to be a recent example of a decision on appeal in this Court which adopts and applies the principles of construction described above. Of course, the principles in question derive from the observations of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR and the observations of the Court in SZLFX.

80    However, as to SZVCZ, the Full Court had to consider whether s 424A(1) was engaged in the following context. The appellant claimed, among other things, that a fundamental element of his claims was that his family faced a real risk of harm in Pakistan as Christians because, after family members had donated land to a Baptist Mission in 1982, the Muslim community turned against his family. Certain propositions described as the “asserted information” were put to the appellant by the Tribunal at the hearing (said to be information based on evidentiary material and documentation). In summary, the asserted information was that many of Pakistan’s most prominent leaders, including Prime Minister Sharif, the assassinated former Prime Minister Benazir Bhutto, and former President Pervez Musharraf, attended Christian schools; and that among the more than 2,000 guests that attended a celebration of the 150th anniversary of Forman Christian College (attended by the appellant’s maternal grandfather), were two of Pakistan’s five provincial governors.

81    As to that information, Markovic J speaking for the majority, in reliance upon the principles described above derived from the High Court’s observations in SZBYR and SZLFX (affirming the observations of Heerey J in MZXBQ), said this at [56]:

That information was not of dispositive relevance to the claims advanced by the appellant before the Tribunal: see [MZXBQ at [27]]. Rather, it was, in its terms, neutral. It did not contain a rejection, denial or undermining of the appellant’s claims, nor did it support the appellant’s claims, including his claim to fear harm because of his family’s association with Christian educators and because his family donated land to the Baptist mission.

[emphasis added]

82    As mentioned at [24] of these reasons, the Tribunal at para 36 put its concern to the appellant about particular matters including the Tribunal’s concern that she claimed to have no knowledge of anything in relation to her tourist visa application and her declaration, for the purposes of that application, of having a husband, two boys, parents and siblings. At para 36, the Tribunal explains that it asked the appellant for her comments about these things and put to her that if it formed the view that her account of events was untruthful it would form a reason or part of a reason for affirming the decision. However, it seems clear enough from the Tribunal’s reasons, that that proposition was put to the appellant because it was concerned about whether she could be believed as to her version of events. In other words, the difficulty for the Tribunal of the appellant having said things, in a tourist visa application, entirely unrelated to the factors, integers and criteria relevant to the protection visa application (about which the Tribunal had to consider whether it could reach a relevant state of satisfaction (or not) under the Act), was a matter which went entirely to the credibility of the appellant. That being so, the information about whether she had caused or allowed a tourist visa application to be submitted which contained incorrect information about a husband, two male children, parents, and living with parents and siblings, was a material matter in determining the question of credit.

83    Accordingly, s 424A and s 424AA were not engaged.

84    As to ground 3, the elements of that ground are set out at [54] of these reasons. The appellant’s contention is that the primary judge fell into error in finding that the Tribunal did not take into account in reaching its decision an irrelevant consideration of whether the appellant had complied with PIC 4020. The primary judge at [27] observed that, had it been the case under the heading “Findings and Reasons” that the Tribunal had made specific reference to PIC 4020 and its breach by the applicant when making her application for a tourist visa, there may have been merit to the submission that the Tribunal had regard to an irrelevant consideration in reaching its decision. At [28], the primary judge also observed that it was relevant that no mention was made of PIC 4020 and any breach of its criteria as constituting a basis for the decision to refuse the protection visa.

85    The appellant says that it has since become apparent that the Tribunal has published on the Australian Legal Information Institute (“Austlii”) website a different version of the decision which contains the additional paragraph at [62] in these terms:

The Tribunal also finds that the applicant does not meet PIC 4020.

86    The appellant contends that the introduction of this paragraph into the Statement of Decision and Reasons makes it clear that the Tribunal did have regard to the appellant’s non-compliance with PIC 4020 in deciding to affirm the delegate’s decision to refuse the grant of a protection visa, and thus the Tribunal fell into jurisdictional error because the question of whether the appellant had complied with PIC 4020 is not a criterion relevant to the question of whether the Tribunal could be satisfied (or not) that the appellant held a well-founded fear of persecution for a Convention reason.

87    Section 430 of the Act is, relevantly, in these terms:

430    Tribunal’s decision and written statement

Written statement of decision

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application – indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

(f)    records the day and time the statement is made.

Note: …

How and when written decisions are taken to be made

(2)    A decision on a review (other than an oral decision) is taken to have been made:

(a)    by the making of the written statement; and

(b)    on the day, and at the time, the written statement is made.

Note: For oral decisions, see section 430D.

(2A)    The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement was made.

…

88    Section 430(2A) makes clear that the Tribunal has no power to vary or revoke a decision to which subsection (2) applies, after the day and time the “written statement” comprised of the elements set out at s 430(1)(a) to (f), was made. Subsection (2) of s 430 applies to the decision of the Tribunal in this case. Therefore, to the extent that the Tribunal purported to insert a new para 62 into the written statement required by s 430(1), it simply had no power to do so. Doing so was a nullity. However, the circumstance that the decision-maker purported to insert a new para 62 reciting an additional finding that the applicant did not meet the requirements of PIC 4020 nevertheless indicates that the decision-maker regarded the additional finding as sufficiently significant that it ought to be, although it could not be, included in the written statement. Although the additional paragraph forms no part of the written statement, the purported introduction of the paragraph into the written statement may reveal the thinking of the decision-maker.

89    Section 430A(1) provides that the Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under s 430(1). The copy must be given to the applicant within 14 days after the day on which the decision is taken to have been made; and given by one of the methods specified in s 441A.

90    To the extent that the decision-maker regarded the new “finding”, as to whether the appellant had satisfied the requirements of PIC 4020 in relation to conduct concerning the appellant’s earlier tourist visa application, a criterion which had to be addressed under the Act in deciding whether the decision-maker could reach a state of satisfaction about statutory criteria relating to the appellant’s protection visa application, making a finding about that matter was not a relevant criterion of the protection visa sought by the applicant.

91    However, to the extent that the decision-maker thought that making a finding about the appellant’s compliance with PIC 4020 was consistent with the view formed that the appellant had not been able to properly explain the presence of false information in her earlier tourist visa application (conduct thought to be inconsistent with the requirements of PIC 4020), thus calling into question the credibility of the appellant leading to the conclusion that she could not be believed about the factual foundation for her claims (as earlier described), the operative factor relevant to the Tribunal’s state of satisfaction (or not) about the appellant’s version of the facts central to her claims was whether she should be believed or not, rather than whether she had failed to meet the requirements of PIC 4020.

92    The findings made by the Tribunal were clearly open in relation to the discharge of the statutory review function of the Tribunal in relation to the finding that the appellant could not be believed and the conclusion that the Tribunal could not be satisfied that the criteria relating to s 36(2)(a) and s 36(2)(aa) of the Act had been satisfied.

93    However, to the extent that the Tribunal took into account, in reaching its decision, a consideration of whether the appellant had met the requirements of PIC 4020, or that a “finding” about that matter was a necessary element of the statutory criteria relating to s 36(2)(a) and/or s 36(2)(aa) in connection with the appellant’s application for a protection visa, with the result that such a consideration was an irrelevant consideration, I am nevertheless satisfied that having regard to the matters mentioned at [91] of these reasons and an analysis of the Tribunal’s reasons overall and especially its findings on credit, that any consideration of whether the appellant failed to meet the requirements of PIC 4020 did not cross the “threshold of materiality”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Kiefel CJ, Gageler and Keane JJ at [24]-[31], Edelman J at [60]-[74]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell, Gageler and Keane JJ at [45]-[51]; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151, Kiefel CJ, Gageler and Keane JJ at [10]; Nobarani v Mariconte (2018) 265 CLR 236, Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ at [38].

94    Having regard to all of these considerations, the appeal must be dismissed with costs.

Associate:

Dated:    5 June 2020