Federal Court of Australia

CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellants pay the First Respondent’s costs of the appeal, as agreed or as taxed in default of agreement.

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

REASONS FOR JUDGMENT

KERR J:

1    The Appellants are citizens of Lebanon. The Second Appellant is the wife of the First Appellant. The Third Appellant is one of their children.

2    On 6 April 2011, the Appellants arrived in Australia. At that time, the First Appellant held a student visa.

3    On 27 July 2012, the Appellants applied for Protection (Class XA) visas (Protection Visas).

4    On 26 November 2012, a delegate of the Minister (the Delegate) refused the Appellants’ applications.

5    On 17 December 2012, the Appellants applied for review of the decision of the Delegate in the then Refugee Review Tribunal.

6    On 20 August 2013, the Refugee Review Tribunal affirmed the decision of the Delegate.

7    On 24 September 2014, the Appellants sought judicial review of the decision of the Refugee Review Tribunal in the Federal Circuit Court of Australia (FCCA).

8    On 6 May 2015, the Second and Third Appellants left Australia.

9    On 6 July 2016, the FCCA made orders by consent quashing the Refugee Review Tribunal’s decision and remitting the matter.

10    On 23 May 2017, the Administrative Appeals Tribunal (the Tribunal) affirmed the decision of the Delegate.

11    On 20 December 2018, the Appellants filed an amended application for review of that decision in the FCCA.

12    On 26 November 2019, the FCCA dismissed the Appellants’ application for review: CTK17 & Ors v Minister for Immigration & Anor [2019] FCCA 3385. It is from that decision that the Appellants now appeal in this Court.

The Appellants’ Claims

13    The First Appellant set out his claims in a statement accompanying his application for a Protection Visa (AB75). He claimed to fear persecution in Lebanon on the basis of his religious and political opinions.

14    The First Appellant explained that he and his wife had been engaged in 2007, and married in 2011. They were both Sunni Muslims. His father-in-law was a politician for the Future Movement party, and had represented that party in parliament. Because of the involvement of his father-in-law with the Future Movement, the First Appellant claimed that he himself had become “very involved” with the party. He had attended rallies and meetings.

15    By way of context, the First Appellant then identified that in Lebanon there was “great rivalry between the Sunnis and the Shias”. He explained that the Future Movement was allied to the Sunnis, and that its main political opponent was “the Hezbollah party which was a terrorist organisation and which represented the Shia Muslims”.

16    The First Appellant stated that his father-in-law had signed a document seeking the establishment of a tribunal into the death of former Prime Minister of Lebanon Rafic Hariri. He claimed that Hezbollah had attacked all those members of parliament who had taken that course, and had also attacked their families. While some members of parliament had fled to Egypt, the First Appellant’s family had been unable to do that. He and his wife had therefore been subject to death threats, harassment and physical attacks:

I was harassed and physically assaulted by associates of Hezbollah and I was also targeted because I was a Sunni who expressed political views against Hezbollah. Furthermore, I was quite active in campaigning on behalf of my father-in-law and one of the main points of discussion related to the increasing influence and presence of Hezbollah in the area where we lived … Even after my father-in-law’s tenure as MP ended in 2009, he still remained active within the party and I still strongly supported the party. I was still subjected to constant threats and harassment and I really feared for my life and that was why I then made arrangements to leave the country and come to Australia in April 2011.

17    The First Appellant claimed that the family was also at risk from the poor security situation more generally in Lebanon.

18    On 28 October 2016, the Appellants sent an email to the Tribunal attaching three documents (AB605). The first attachment was a letter from a Mr El Halwi certifying that the First Appellant was a member of Future Movement Australia and providing information as to that circumstance (AB607). The second attachment was a statutory declaration made by the First Appellant on 27 October 2017 addressing in chronological order his background, political activities, the circumstances in which his wife and child had returned to Lebanon and his fears for the future (AB608-618). The third attachment was a statutory declaration made by a Mr Wajde Assaf (AB619-623).

19    The letter from Mr El Halwi relevantly provides as follows:

To whom it may concern

This is to certify that [CTK17] has been a member of Future Movement Australia (Victoria) since 2013.

[CTK17] is a loyal supporter of the Future Movement in Australia as he was in Lebanon.

I am aware that [CTK17] was a member of the Future Movement Party in Lebanon and assisted the party in Akkar and Tripoli and he is also the son in law of a former Future Movement Party Member of Parliament ... I believe that he would continue to be active with the party on return to Lebanon.

[CTK17] has joined Future Movement Australia (Victoria) since 2013 and has been attending and assisting in our activities and events such as the annual commemoration for the martyr Rafik Hariri, annual Ramadan iftar and many other local social and political activities done by the Future Movement.

Should you have any queries regarding [CTK17’s] involvements with the Future Movement Australia (Victoria) please do not hesitate to contact me.

20    The statutory declaration prepared by the First Appellant on 27 October 2016, being his most recent statutory declaration, is also relevant to the present appeal. With respect to his background, the First Appellant stated in that document that:

6.    None of my family were particularly political people. I think my interest in politics came from the fact that I was more educated than all of the others …

…

12.    Throughout my studies, I had always followed politics and current affairs. I was impressed by Rafiq al-Hariri, who had ascended to the post of the Prime Minister of Lebanon, representing the Future Movement Party.

…

15.    I started to become very interested in politics in our area after al-Hariri was assassinated. I began to read all the news about what was happening in our region and what the respective parties were saying.

21    With respect to his political activities, the First Appellant claimed that:

38.    Especially when my father in law was in Cairo [having on the Appellants’ case fled the country after attacks by Hezbollah on MPs who signed the memorandum requesting an investigation into the death of Rafic Hariri], he would call me all the time asking me to carry out work for him on behalf of the party. There are too many examples for me to remember. For example, he would call me and tell me to go to the party headquarters in Tripoli, and pick up a cheque for a scholarship and deliver it to the recipient – or for a family who could not afford medical treatment, and deliver it to them. My father in law had children my age but because they did not have education, he did not trust and respect them – he respected me. I was honoured to do this work for him if it advanced the party.

39.    Other things I can remember he asked me to do included representing my father in law at a wedding and even at a funeral. The functions were always held by people connected with the party. Lebanon is a small place – it did not take a lot of time for me to get from place to place, and I was honoured to do this on my father in law’s behalf.

40.    The things my father in law did were not for himself – but for the legacy of the Hizb (or party) and in the memory of Rafiq al-Hariri. He is not a rich man – even the car that has been given to him is from the Hariri family. He believes, like I believe, that it will take a strong leader to get rid of Syria and these influences from Lebanon once and for all.

41.    General elections were held again in 2009. Despite how dangerous it was, my father in law had to return to Lebanon …

42.    Even though my father in law had not been pre-selected, he was still actively involved in the campaign in 2009. He did the same thing as he did before – he travelled around Akkar going from door to door and talking to people about the party’s platform. He still had his security detail with him at the time.

43.    I was of course keen to continue to do everything I could to support the campaign. My father in law was the one who told me that the party needed me in Tripoli – he said that he had received a call from his party colleagues and someone had mentioned my name to lead the campaign in Tripoli. I was happy to stay in my area and campaign from there.

44.    The 2009 campaign was much more active than the 2005 campaign. This time, it was not for my father in law but for the future of the party. I think at the time there were about four offices set up in Tripoli for the election campaign in 2009. The most important work was happening in the Al-Qubba office, which is where I was based. There were around five of us in that office …

45.    The main task I had been asked to perform was to go around and speak individually to all the voters from Akkar who were living in Tripoli, talk to the [sic] about the party and record how they were going to vote in the elections … As we had been instructed to do, I would then deliver the results to the party’s main office …

…

48.    [CTK17’s father in law] was still active with the party and I continued to support him, particularly at public events. It made him proud to have his son in law with him as a representative of his family. None of his own sons were active in the party and I think he had always wanted them to be. So in a sense I would stand in the shoes of his sons. Because my father in law would have me accompany me [sic] to public meetings, members of the party came to recognise me – I think it would still be the case now. I have met Saad al-Hariri twice I think, his advisor Nader al-Hariri, the Prime Minister Fouad al-Senoura and his advisor Mahmoud Dandash. They would recognise me by face.

…

51.    After this incident [being a physical attack], I returned to Tripoli and my work there. I was on call for my father in law, to accompany him in his work for the Future Movement. As I mentioned, most of my father in law’s role at that stage was to be a public face for the Future Movement Party, and to attend events on behalf of Saad al-Hariri, as he directed. I remember over the next year, I accompanied my father in law to many public functions, and we went to officially open a school …

22    He otherwise detailed the threats and attacks to which he contended that he and his family had been subjected, including his being attacked while in his car by people shouting and throwing rocks that hit and injured him, and his being shot in the shoulder.

23    With respect to the return of his wife and child to Lebanon, the First Appellant stated that:

64.    Around 2013, my father in law began to get sick in Tripoli. He began to struggle to walk and to breathe, to the extent that he had to get a ventilator to help him. He had so many tests and consultations with doctors in Beirut – they eventually diagnosed him with something called Amyotrophic Sclerosis. It is a terrible disease that kills people slowly, attacking their nervous system and eventually rendering them unable to move, speak or breathe.

65.    By 2014, people from our community were coming from Lebanon, having seen my father in law’s condition, and insisting that she go to Lebanon to see her father. By that time, he could not speak anymore, and a tube had been inserted in his throat so that he could breathe.

66.    Hearing all of this completely changed my wife’s mental condition. Slowly and surely, she became so distressed and guilty. She began to tell me she wanted to go home and see her father - that she could not live with herself. For one year, form [sic] 2014 to 2015, I pressured her to stay. I told her that going back was a threat to her and her children. We began to argue all the time, every day.

67.    Eventually, she began to say frightening things to me. She began to say that, if her father died and I had stopped her from seeing him, she would never forgive me. She told me she was going to end her own life. I could not stop her or control her. I did not know what to do. I had to hope and pray that the security that my father in law had in Tripoli was enough to keep her safe.

68.    I talked to my agent and he said that it would be possible to bring her back on a Visitor visa from Lebanon, or a work visa. I prayed that this would be the case. My wife left Melbourne on 6 May 2015, against my very strong objections. It was heartbreaking for me and I did not know what to do.

69.    By that time, I had lost confidence in my previous agent and so I began to ask around for other advice to bring my wife back. To my dismay I was told that it was basically impossible to get a Visitor visa for my wife and daughters to come back, because they had left on Bridging E visas and there were not genuine Visitors.

70.    My wife has promised me that she will not leave the home, for so long as she is in Tripoli. My eldest daughter is old enough to go to school but I do not let her go. They are basically living in my father in law’s home as prisoners. I regret every day letting them go. Every day I read about attacks in Tripoli and I call my wife to make sure she is in the home.

24    The statutory declaration provided by Mr Assaf is critically relevant to the present appeal. Mr Assaf gave evidence broadly in relation to two issues: the political activities of the First Appellant in connection with the Future Movement Party; and his understanding of the circumstances in which the Second and Third Appellants had returned to Lebanon.

25    Regarding the First Appellant’s political activities, Mr Assaf explained that he himself had been born in Lebanon but had migrated to Australia as a child, where he remained deeply connected to the Lebanese community. He had been heavily involved in the Future Movement in Australia, working with others to establish a chapter in Melbourne. With respect to the First Appellant, Mr Assaf relevantly stated as follows:

16.    Since he has been in Australia, [CTK17] has attended all of the events for the Future Movement Australia. He is deeply knowledgeable about the Future Movement Party and its internal workings. This comes from both his relationship with his father in law, who was a very well-respected MP in the north of Lebanon, but also his own political commitments and involvement with the party.

17.    [CTK17] is a very good, responsible and socially-minded man. I have been in so many discussions with him, where he has expressed his views about how a society should work. He does not believe in any difference between people on the basis of religion or denomination. He believes in free access to education and healthcare for all people, and the advancement of women – he has two daughters and I have heard him speak strongly on this issue. With these views, the Future Movement Party is the only way to express these ideas in Lebanon.

…

20.    I strongly believe that [CTK17] will be active and involved with the Future Movement Party on return to Lebanon – because of his own political commitments, his deep knowledge of the party, but also to keep alive his father in law’s legacy.

…

24.    I do not believe that there anywhere [sic] in Lebanon where [CTK17] would be safe. He has a profile because of his father in law, and this is something that he would build on through his own activities. Things are not safe for him in his own region in the north, like his father in law who is under constant guard. In Beirut and the south, there are reports of violence all the time against Future Movement supporters.

26    With respect to the return of the Second and Third Appellants to Lebanon, Mr Assaf stated that:

19.    I witnessed first-hand the pressure on [CTK17] and his wife when his father in law’s health began to decline. Joint friends of ours would come from Lebanon, having seen [CTK17’s] father in law, and say to [CTK17] and his wife that they must go back and see him as he was in a terrible condition. Although [CTK17] was very attached to his father in law he could not go back because of what he thought would happen to him. His wife was very torn about the decision to go back, and [CTK17] pressured her not to – but in the end, I think she just had to see her father and assist her mother who was very much struggling to give him care. My understanding is that [CTK17’s] wife and daughters are living under armed guard in Tripoli and are limited to the home.

27    It should be noted that in written submissions provided to the Tribunal on 2 November 2016 (AB638), the Appellants’ representatives highlighted this evidence. After outlining the evidence that the First Appellant had given in his 27 October 2016 statutory declaration regarding his political activities in Lebanon, they relevantly stated (AB650):

Further, the [First Appellant] has remained active in his dedication to the Future Movement during his time here in Melbourne. His activities in this regard are confirmed by his friend and community worker, Mr Wajdi [sic] Assaf, and president of the Melbourne chapter of the Future Movement, Hussein el Hawli.

(Emphasis added).

The Administrative Appeals Tribunal decision

28    The Tribunal accepted the Appellants’ claims as to the identity and political involvement of the First Appellant’s father-in-law, being a person who had signed a request that the United Nations convene a special tribunal into the death of Rafic Hariri. It accepted that his father-in-law had considered his own life to be at risk, and at some point had employed 48 security guards. It found however that circumstances had since changed, such that First Appellant no longer had any reason to be concerned for his safety or that of his family.

29    The Tribunal raised significant concerns regarding the credit of the First Appellant, who it identified as having added to his claims of having a political profile in Lebanon over time. It drew on 16 factors in that regard, one of which was the return of his wife and child to that country. It therefore found that the First Appellant had no relevant political profile in Lebanon:

Well-founded fear of persecution

…

101.    The applicant was an ordinary member of the Future Movement since 2005, but after he was engaged to [CTK17’s father-in-law’s] daughter in 2007, he because [sic] a part of her family. He had good reasons to fear for the safety of his father-in-law, his wife and himself, but only to the extent that any member of [CTK17’s father-in-law’s] family could be targeted. By the time the applicant came to Australia, there was no reason for him to be concerned for his safety for any reason to do with his father-in-law or the Future Movement. There was a very small risk, less than a real chance and less than a real risk, of harm because Tripoli was the scene of sectarian fighting. The likelihood of harm has diminished further since Tripoli was pacified in 2015. The Tribunal deals with this issue further below.

102.    For the reasons that follow, while the Tribunal accepts the applicant is the son-in-law of a former politician, it also finds that the applicant does not have a well-founded fear of persecution, nor are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from to [sic] Lebanon, there is a real risk that he will suffer significant harm. His evidence has evolved over time, and the applicant has embellished or exaggerated past facts and circumstances in order to weave a narrative that gives him a political profile within the Future Movement:

   a.    The applicants first came to Australia in April 2011 but did not apply     for protection visas until more than a year later

b.    In his original application for protection, the applicant said that he came to Australia to study, but since then the situation in Syria “reflected” on his country (italics added) [emphasis added by Tribunal]. In other words, his claims were based on events that occurred after he came to Australia, rather than the risks faced by the applicant at the time of his departure for his role in the Future Movement Party generally and [CTK17’s father-in-law] in particular

c.    In a statement accompanying his application, the applicant said that he was engaged to his future wife in 2007 and “because of the involvement of [his] father in law, [he] also became very involved with the Future Movement Party”. In the statement he made no express claim that he was involved in politics prior to 2007

d.    He also said in the 2012 statement: “My wife and I were affected in that Hezbollah not only attacked the [Future Movement] MPs but also members of their families” because a shopkeeper from the area and other neighbours were “well aware of [the applicant’s] family connection to the Future movement”

e.    The Tribunal acknowledges that according to submissions made to the previous Tribunal the applicant was with [his father-in-law] back in 2005 and around election time the applicant “had a position of responsibility that he was in charge / the organiser for the election in certain districts”. But the same submissions also claim that “the applicant’s degree of involvement was that he was well known because of the high profile of his father in law”

f.    During the hearing with the previous Tribunal, when asked about his personal involvement in politics in the election campaign in 2005, the applicant claimed to have been “targeted the most” and “closest” to his father-in-law but all the activities he described to the previously constituted Tribunal were undertaken with other people:

•    “we would go to house [sic] and count the names of people who are for and people who are against” the Future Movement

•    “we would count votes”

•    he would travel with others in a convoy of cars and buses going to protests or demonstrations

•    “we were involved in these movements”

g.    During the hearing with the previous Tribunal, when the applicant was talking specifically about his father-in-law travelling to Egypt to avoid harm, the applicant made no mention of his special role while his father-in-law was out of the country (Lebanon). Instead, he talked about the risks his father-in-law and other MPs from the Future Movement were facing during that time

h.    The letter from the applicant’s father-in-law in support of the application, does not state that the applicant had his own profile in the Future Movement and he was not targeted for this reason. Quite the opposite, it says [CTK17’s father-in-law] that [sic] the applicants had been “target [sic] of assassination because of being members of my family”

i.    The letter from Hussein Al Hawli (Melbourne Coordinator of the Future movement) states that the applicant was the son-in-law [of CTK17’s father-in-law], “assisted the Party” in Akkar and Tripoli. It does not say that the applicant had his own political profile.

j.    The letter from Hussein Al Hawli does not claim that the applicant faces a real chance of serious harm or real risk of significant harm on return

l.    The second and third named applicant as well as the applicant’s second child (who was not included in the application left Australia) [sic] travelled back to Lebanon in 2015, despite the alleged risks e.g. having to live in Tripoli as virtual prisoners

m.    [CTK17’s father-in-law] does not live alone or with his wife at his house. Another 13 people live there, including nine adults who could live elsewhere. The Tribunal considers that if everyone has to live in that house as virtual prisoners, they would move. The Tribunal has considered the possibility that all members of the … family are known and could be targeted anywhere in Lebanon. If that is the case, it would make sense for them to live together in the same house and have at least some security, rather than live separately without any security at all. However, the Tribunal does not accept that this is the reason why the extended family lives in the same house. The Tribunal considers that it would be unsustainable for such a small security detail to protect 15 people, even if they all put their lives on hold and lived like virtual prisoners for years – for example the house could be attacked while one or both of the security people are away from the house to take [CTK17’s father-in-law] to hospital. The Tribunal considers that the number of security personnel was drastically reduced, because the only person who still needed protection was [CTK17’s father-in-law]

n.    In the 2012 statement the applicant said that he met Future Movement MPs at rallies. In the 2016 statutory declaration, the applicant claimed that he accompanied his father-in-law to political meetings where he met senior Future Movement figures who may be able to recognise him even at present

o.    The applicant provided two medical certificates with translations into English. One is dated 6 June 2009, the other one 6 June 2010

p.    There is no legal requirement for an applicant to provide independent evidence in support of their claims for a decision-maker to accept them. However, the applicant did not provide any examples of particular speeches he had allegedly written for [his father-in-law] let alone a copy of any such speech.

103.    Based on the problems with the applicants’ evidence, identified above, the Tribunal finds that the applicant knew [his father-in-law] prior to 2005. During the 2005 election campaign he had some low level involvement in the campaign. When [CTK17’s father-in-law] was elected to Parliament he provided some support to his father-in-law in 2009. The applicant would sometimes attend rallies with his father-in-law; he would travel in a car in a convoy with many others; he would go from door to door with others to canvas votes, and once [his father-in-law] was elected the applicant ran errands such as picking up a cheque from the MP’s office and delivering it to a constituent.

104.    However, the applicant was not “like an adviser” to his father-in-law, he was not his father-in-law’s “representative” when [his father-in-law] was absent (in Egypt or elsewhere), he was not his speech writer, right hand man, or an important person in his electoral office. He did not have his own political profile. He did not write speeches, he did not go to public events or weddings and funerals side-by-side with or even instead of [his father-in-law]. He was not involved in mediating private disputes with or instead of [his father-in-law].

(Emphasis added).

30    The Tribunal accepted that the First Appellant’s father-in-law had previously been subjected to threats and harassment. It further accepted that the First Appellant, while “not singled out for harassment”, had been caught up in this. However, it found that as a terminally ill retired politician the First Appellant’s father-in-law no longer faced a real chance of serious harm. The same applied to his family. The Tribunal in that regard did not accept that the Second and Third Appellants faced any restrictions on their freedom of movement in Lebanon.

31    The Tribunal found that the First Appellant had never suffered physical harm for reason of his political opinion, relationship with his father-in-law, religion, or any other reason. His only injury was having been shot in the shoulder in December 2010, which occurred when he was caught in crossfire in Tripoli. Since 2015 there had been little generalised violence of that kind.

32    With respect to the First Appellant’s likely future involvement with the Future Movement, the Tribunal relevantly referred to oral evidence he had given before it as follows:

82.    When the Tribunal suggested that it might find that the applicant was simply a supporter of the Future Movement, not “like his [father-in-law’s] advisor” and not active in the Future Movement, the applicant responded that had he not come to Australia he would have been someone important in the Future Movement. In the future, on his return he might even stand for Parliament – anything is possible.

33    The Tribunal later found as follows:

116.    The Tribunal finds that the applicant supports the aims and policies of the Future Movement. However, he was one of thousands of ordinary members who did so. While his father-in-law ran for Parliament and was serving in Parliament, the applicant helped him, together with many others. On his return to Lebanon, the applicant will continue to support the Future Movement and vote for it in elections. However, as his father-in-law is no longer directly involved in politics, the applicant’s own involvement will not go beyond attending rallies from time to time and voting for the Future Movement (the March 14 coalition). These activities, considered in combination with his relationship to [his father-in-law] and the fact that he will be living in [his father-in-law’s] house, would not be enough to create a real chance of persecution.

(Footnotes omitted; emphasis added).

34    The Tribunal then addressed the risk to members of the Future Movement more generally, on the basis of country information, as follows:

75.    In relation to the applicant’s political opinion, the Tribunal noted the following information from the 2015 DFAT Country Information Report:

3.47    Overall, DFAT assesses that ordinary March 14/Future Movement supporters are at a low risk of violence. DFAT assesses that March 14/Future Movement supporters who express a direct threat to Hezbollah’s political power face a moderate risk of violence. In practice, this is only likely to affect senior leaders of the Future Movement. For example, Future Movement leader, Saad Hariri, is currently living abroad …

…

123.    For many decades now Lebanese politics has been sectarian. Most political parties are based on religion – there are Shia/Alawite parties, Sunni parties, Christian parties and so on. But it does not follow that supporters and ordinary members of political parties face a real chance of serious harm for reasons of their support for a given political party now or in the reasonably foreseeable future.

…

126.    The Tribunal has carefully considered the applicant’s representative’s submissions in relation to the risk of harm that the applicant faces from other Sunnis and in particular from more radical Sunnis, who oppose Saad Hariri’s recent political decision, in particular his decision to support Michel Aoun. The Tribunal understands the logic behind these alleged fears, but observes that the country information submitted by the representatives does not support the assertion that moderate Sunnis or supporters of the Future Movement or supporters of Saad Hariri face harm at the hands of other Sunnis.

…

131.    There have been no reliable reports that ordinary Sunnis who support Sunni political parties and in particular the Future Movement, the March 14 movement and Saad Hariri, people who are against Sunni extremists, against the Syrian government, against Hezbollah and Alawites are being targeted in Lebanon. In light of the fact that Syria has descended into a protracted and bloody civil war, the situation in Tripoli at present is remarkably stable.

(Emphasis added).

35    The Tribunal accordingly found that there was no real risk of a targeted attack against the Appellants. Accordingly, none of the Appellants faced a well-founded fear of persecution “now or in the reasonably foreseeable future”. They also faced no real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia arising from their connections to the First Appellant’s father-in-law, political views, religion or any other factor. For those reasons the Tribunal affirmed the decision of the Delegate, finding that the Appellants did not satisfy the criteria in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth).

36    With respect to email that the Appellants had sent to the Tribunal on 28 October 2016 and its three attachments, there is no dispute that while the Tribunal in its reasons referred to both the First Appellant’s statutory declaration and the letter from Mr El Hawli it made no express reference to the statutory declaration provided by Mr Assaf.

37    The only express references to Mr Assaf were in respect of his oral evidence; Mr Assaf having appeared before the Tribunal at the hearing:

4.    The applicant appeared before the Tribunal on 4 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Wajde Assaf. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

(Emphasis added).

38    A transcript of the hearing before the Tribunal is not before the Court. However, the Tribunal summarised the oral evidence given by Mr Assaf as follows:

87.    The Tribunal then took evidence from the witness. Mr Assaf said that in the previous Tribunal hearing he was told by the applicant’s former lawyers not to mention anything about the applicant being shot at.

88.    The witness said that Lebanon was very unstable. That the applicant would be at risk anywhere in Lebanon and anywhere in Tripoli. The applicant would be personally at risk at [sic] harm because of his support for the Future Movement and because of his relationship to his father-in-law. The witness stated that the political rivalries in Lebanon extend to Australia and he (the witness) himself has been threatened, because of his political views.

39    The Tribunal referred to Mr El Hawli’s letter as follows, at paragraphs [50] and [71] of its reasons:

50.    The evidence from third parties does not expressly state that the applicant had a special role in his father-in-law’s political office. On 28 October 2016 the Tribunal received a letter from Mr Hussein El Hawli, Melbourne Coordinator of the Future Movement in Australia in 2013 (the applicant first came to Australia in 2011 and lodged the Protection visa application in 2012); that the applicant was the son-in-law of [a Future Movement politician] and that he had “assisted the Party” in Akkar and Tripoli. The letter does not express any views as to whether the applicant faces a real chance of serious harm or real risk of significant harm on return to Lebanon.

…

71.    The Tribunal observed that that the letter from Hussein Al Hawli, Melbourne Coordinator of Future Movement (Australia) says nothing about the applicant being unable to return to Lebanon. He said that he had asked for a letter which shows his support for the Future Movement. The representative added that they did not ask for a letter to speculate about the risk of future harm.

(Footnotes omitted).

40    The Tribunal also referred to Mr El Hawli’s letter in making its adverse credit finding with respect to the First Appellant (see [29] above).

The Federal Circuit Court of Australia decision

41    Before the FCCA, the Appellants advanced the following ground:

The Tribunal denied the applicants procedural fairness and/or failed to perform its statutory task by failing to consider the first applicant’s evidence and corroborative evidence regard the second applicant’s decision to return to Lebanon.

Particulars

a.    The Tribunal is required to consider the applicant’s claims and evidence to satisfy the statutory criteria in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).

b.    The applicants claimed to have a well-founded fear of serious harm and/or face a real risk of significant harm for reason of his political opinion as a supporter of the Freedom Movement in Lebanon.

c.    The Tribunal relied on a number of problems with the applicant’s evidence referred to at [102] of its reasons, to find at [103]-[106], [116] that the first applicant had exaggerated his role in the Freedom Movement in his evidence to the Tribunal, and the role he would play in the Freedom Movement upon return to Lebanon.

d.    One of the problems relied on by the Tribunal was that the second applicant and third applicant had returned to Lebanon despite the claimed risk of serious and/or significant harm.

e.    The Tribunal accepted that the second applicant’s father was terminally ill. However, the Tribunal did not refer to the first applicant’s specific explanation for the second applicant’s return to Lebanon:

i.    People from the community in Lebanon had placed the second applicant under significant pressure to return to Lebanon to see her father. This was corroborated by a statement of Mr Wajde Wade Assaf;

ii.    Dr Bitar, a neurosurgeon, had provided a note that the second applicant’s father needed his daughter in Lebanon;

iii.    The first applicant had received advice that the second and third applicants could return to Australia on a work or visitor visa.

f.    The Tribunal, by relying on the second applicant’s return to Lebanon without considering the explanation and corroborative evidence, failed to properly consider the first applicant’s claims.

42    As is relevant to this appeal, in the FCCA the Appellants submitted that it could be inferred from the Tribunal’s failure to mention the First Appellant’s explanation for the Second and Third Appellants having returned to Lebanon and the corroborative evidence in that regard (including the evidence of Mr Assaf) that those issues had not been considered and that this constituted jurisdictional error.

43    The primary judge identified the relevance of Mr Assaf to the case advanced in the FCCA as follows:

  15.    The applicant sought to corroborate these matters by two means.

16.    First, Mr Assaf’s statutory declaration stated that mutual friends had placed pressure on the applicant’s wife to return to Lebanon. He stated:

I know that CTK17 is particularly close to his father-in-law. To my knowledge, his father-in-law has been unwell and basically bed-ridden the past few years. It was something that advanced slowly...it is basically at the point now that his father-in-law cannot even speak over the phone, and requires full time care.

I witnessed firsthand the pressure on CTK17 and his wife when his father in-law’s health began to decline. Joint friends of ours would come from Lebanon, having seen CTK17’s father-in-law, and say to CTK17 and his wife that they must go back and see him as he was in a terrible condition...

44    With respect to Mr Assaf, the primary judge relevantly found as follows:

Corroborating evidence

83.    The Minister accepted that neither the declaration of Mr Assaf nor the letter from Dr Bittar were referred to in the Reasons. Earlier, I have referred to the matters which were addressed in those documents.

84.    The statutory declaration of Mr Assaf was one of three documents supplied to the Tribunal on 28 October 2016; the other two documents were the applicant’s statutory declaration and a letter from Mr Hussein El Hawli. The Reasons referred frequently to the applicant’s declaration. They also referred to the letter from Mr Hussein El Hawli.

85.    This invites attention to whether it is likely that the Tribunal, having received three documents as attachments to the one email and having referred expressly to two of them, simply ignored the third; namely, Mr Assaf’s declaration. Mr Assaf’s declaration relevantly confirmed that he witnessed the deterioration in health of the applicant’s father-in-law, the pressure that had been placed on the applicant’s wife to return to Lebanon and that she had encountered great difficulty in making her decision to leave Australia. Critically, the Tribunal acknowledged that it had received evidence from Mr Assaf: [4]. Although the hearing was of four hours’ duration, the applicant did not seek to discharge his onus of proof in part by tendering a copy of the transcript of the Tribunal hearing. Although it is not entirely clear, it appears that Mr Assaf and the applicant were the only witnesses who attended the hearing to give evidence.

86.    As noted, the Reasons at [23] and [80(3)-(4)] implicitly accepted that one reason the applicant’s wife had left Australia for Lebanon was that she had decided to do so because of her father’s grave illness.

87.    Collectively, those matters supported a conclusion that the declaration of Mr Assaf had not been ignored, but that his evidence was not considered sufficiently relevant or material to be mentioned. Having regard to the circumstance that Mr Assaf’s evidence went no further than the applicant’s own evidence relating to the societal pressure that was placed on the applicant’s wife to return to Lebanon, it was open to the Tribunal to rely expressly upon the applicant’s evidence without referring also the corroborative evidence of Mr Assaf.

…

89.    Further, nothing in the Reasons is in any way suggestive of a finding by the Tribunal that it rejected the applicant’s evidence that the father-in-law’s health had deteriorated or of the pressure that had been placed on the applicant’s wife to return to Lebanon. The present case stands in marked contrast, for example, to those in which the Tribunal has expressly rejected a contention made by an applicant but ignored objective independent evidence to the contrary: cf SZSRS; DAO16 v Minister for Immigration and Border Protection;

90.    Seen from this perspective, the corroborative evidence of Mr Assaf and Dr Bittar was not necessary to its finding that the applicant’s wife and child had returned to Lebanon by reason of the applicant’s father-in-law’s ill-health. Nor was it necessary to the implicit finding that the applicant’s wife had been faced with societal and family pressure to return to her father’s side.

 91.    For those reasons also, nor was their evidence material to the findings.

92.    It is useful in the circumstances of the case to employ as a tool of analysis the distinction between a failure to advert to evidence which might have led to a different finding of fact, and a failure to address a contention which, if accepted, might have established that the applicant had a well-founded fear of persecution. The substantive basis upon which the applicant sought review was the absence of direct reference to his evidence about the reasons why his wife and child had left Australia. Accepting that no bright line can be drawn between evidence and claims, the matters upon which the applicant was relying did not rise to the level of constituting a free-standing claim upon which he asserted a well-founded fear of persecution. It follows that, had the material been ignored, this would not of itself found jurisdictional error. Before that conclusion could be drawn, however, it must be demonstrated that a failure to refer to the evidence was critical to the review. In view of the affirmative findings that were made, the evidence was not critical.

93.    Further, I do not consider that the evidence about which complaint is made was cogent and material or critical to the review. The Minister submitted that the applicant overstated the importance of the matters alleged to have been overlooked in the Tribunal’s reasoning. The fact of the second applicant’s return was relied on by the Tribunal in relation to: (1) its finding that the applicant’s evidence had evolved over time and that the applicant had embellished or exaggerated past facts and circumstances in order to weave a narrative that gives him a political profile within the FMP; and (2) its findings regarding the extent of the applicant’s independent political profile within the FMP.

94.    Viewed collectively, I am not persuaded that the applicant has discharged the onus of demonstrating that the Tribunal did not consider the matters upon which he relies in contending that there was a failure to consider the reasons why his wife had departed for Lebanon with their child.

(Footnotes omitted).

Ground of appeal

45    On 18 December 2019, the Appellants – who were then unrepresented – filed a Notice of Appeal from the FCCA decision. That document did not identify any appeal grounds with clarity, and appeared primarily to take issue with the merits of the decision of the primary judge.

46    The Appellants subsequently obtained legal representation. On 28 July 2020, the Appellants’ legal representative filed an interlocutory application seeking leave to amend the Notice of Appeal. In an affidavit in support of that application, she relevantly deposed that:

4.    Victoria Legal Aid assisted the Appellant at first instance in the Federal Circuit Court. This application was unsuccessful, with the Court delivering judgment on 26 November 2019 at Melbourne.

5.    On advice of Counsel who ran the matter at first instance, Victoria Legal Aid advised the Appellant that we could no longer act for him.

6.    Victoria Legal Aid were then contact by Nick Wood of Counsel, who advised that he been approached independently by the client for assistance. Mr Wood advised that he had identified a ground of appeal not previously raised in the Court below, which he assessed as having merit.

7.    The Appellant then lodged a further application for aid, and Victoria Legal Aid went on the record for this matter on 10 June 2020.

47    The proposed amended Notice of Appeal advances a single ground. It is in the following terms:

1.    The Court erred in failing to find that the second respondent (the Tribunal) erred in failing to consider the statutory declaration of Mr Wajde Assaf made on 27 October 2016.

a.    The appellant provided the statutory declaration of Mr Assaf in support of his application for a protection visa.

b.    In that statutory declaration, Mr Assaf gave evidence including inter alia that: the appellant “has attended all of the events for the Future Movement in Australia”; “[h]e is deeply knowledgeable about the Future Movement and its internal workings”, which “comes both from his relationship with his father in law … but also his own political commitments and involvement with the party”; the appellant has strong political convictions, and Mr Assad “strongly believe[s] that [the appellant] will be active and involved with the Future Movement Party on return to Lebanon = [sic] because of his own political commitments, his deep knowledge of the party, but also to keep alive his father in law’s legacy”.

c.    The Tribunal did not refer to Mr Assaf’s statutory declaration in its reasons.

d.    It is more probable than not that the Tribunal did not consider Mr Assaf’s statutory declaration.

e.    Failure by the Tribunal to consider Mr Assaf’s statutory declaration, including the information identified in (b) above, involves jurisdictional error.

48    The Appellants accept that they require leave to amend their Notice of Appeal, as sought in their interlocutory application. They do not concede that they further require leave on the basis that the ground they propose to advance was not raised in the court below. They submit however that insofar as such leave is required, it is also sought.

49    The Appellants submit that the proposed appeal ground advances “essentially the same” argument as was put in the FCCA, albeit that “different aspects of Mr Assaf’s evidence are now emphasised”. The amended ground thus merely represents a refinement to what was advanced below. They submit that the Minister is not relevantly prejudiced. They further submit that in view of the asserted merit of the proposed amended ground of appeal, it is in the interests of justice that they be granted leave to rely upon it. Any contingent issues could be sufficiently addressed by an appropriate order for costs.

50    The Minister accepts that the proposed appeal ground “may fairly be described as a refinement of (or at least materially similar to) the argument advanced at first instance”. In any event, the Minister consents to the grant of leave both to amend the Notice of Appeal, and to rely on a ground not raised in the court below if such leave is required: subject only to reserving the Minister’s rights in relation to the question of costs in the court below, should the Appellants succeed on the appeal.

51    There being no opposition to that course, I grant the leave sought.

Appellants’ submissions

52    The Appellants submit that it can be inferred from the Tribunal’s failure to expressly refer to Mr Assaf’s statutory declaration that it failed to consider that document, and that it thereby fell into jurisdictional error. Whereas the primary judge was satisfied that the Tribunal considered Mr Assaf’s evidence but found it to be insufficiently material to warrant mention with respect to the return of the Second and Third Appellants to Lebanon, on appeal:

the appellant[s] emphasis[e] a different feature of Mr Assaf’s corroborative evidence that cannot readily be explained as being “immaterial” to the issues arising on the review. That concerned the nature and extent of the appellant’s political convictions and activities, including as bearing on the likely nature and extent of the [first] appellant engaging in political activities on the basis of his convictions, in the event that he were to be returned to Lebanon.

53    The Appellants in that regard refer to the judgment of the Full Court in BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76; 261 FCR 515 (BXK15). It is convenient to extract the following passages from that decision, on which they place particular reliance:

16.    Whether the Tribunal failed to have regard at all to [sic] the witness statements is a question to be determined in all of the circumstances, including the nature of the appellant’s claims, the materiality of the evidence in question and the conduct of the Tribunal’s proceedings. The manner in which the Tribunal expressed its reasons informs that inquiry, but is not determinative of it. However, as the Full Court said in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 (at [34]):

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

17.    In our view it could not be said that the Tribunal made no mention of the witness statements because the Tribunal considered them to be immaterial. If accepted, the statements were capable of supporting the factual allegations made by the appellant in support of his claim to have a well-founded fear of persecution should he be returned to India. The statements did not go to a peripheral issue. They could not be ignored on the basis that they were irrelevant to the appellant’s claims, nor on the basis that the matters dealt with in the statements were subsumed in findings of greater generality and so rendered unnecessary to consider or decide.

54    With respect to the issue of materiality, the Full Court relevantly stated that:

21.    The primary judge was correct to observe that the Tribunal identified multiple inconsistencies and deficiencies in the appellant’s accounts, both in relation to the factual matters dealt with in the witness statements and in respect of other factual matters to which the statements did not refer. The primary judge was also correct in his assessment of the likelihood that the Tribunal would view the witness statements with some scepticism.

22.    There were multiple factors bearing adversely on the appellant’s credibility. As Logan J has identified, the Tribunal gave detailed reasons for its adverse credibility findings, a summary of which appears at [41] of his Honour’s reasons. Many of the factors bearing adversely on the appellant’s credit could not have been affected by the context of the witness statements. That is particularly so in respect of matters such as the appellant’s delay in making his application for protection, his return to his village in 2011 despite his claimed fear of persecution at the hands of authorities there, and inconsistencies between evidence given by the appellant at the hearing and on his visa application about who had threatened his father. However, other findings affecting the appellant’s credibility did indeed concern factual matters in respect of which the two statements were corroborative. Read as a whole, the Tribunal’s reasons indicated that its conclusion that the appellant was not a credible witness was founded on an accumulation of factors, many of which but not all of which could not have been affected by the content of the statements.

23.    In our view, the critical question is not whether the Tribunal was likely to view the statements with scepticism. Nor is it correct to ask whether the two findings recorded in the witness statements could possibly overcome the significant adverse credibility findings recorded in the Tribunal’s reasons. To approach the appeal in that way is to ignore the circumstance that the Tribunal’s reasons are a record of a reasoning process based on an incomplete assessment of the relevant evidence. The critical questions is whether the Tribunal could possibly have assessed the appellant’s credibility (and hence the substantive issues) differently had it been conscious of the content of the statements at the time that it engaged its own reasoning process.

24.    The order in which the Tribunal decided to deal with the evidence is also significant.

25.    Whilst it may have been open to the Tribunal to first consider the appellant’s evidence in isolation from corroborative evidence, it cannot be said with certainty that the Tribunal would have adopted that method of decision-making had it been conscious of the content of the statements from the outset. Had it been conscious of the existence of the statements, it may instead have adopted what McHugh and Gummow JJ described as the “preferable method of going about the task presented by s 430 of the Act”: Applicant S20/2002 at [49]. Accordingly, it is no answer to the appellant’s arguments on this ground of appeal to say that his credibility was irreparably damaged by the time that the corroborative evidence came to be considered. It is possible that the appellant’s credibility may not have been irreparably damaged at all. There is, accordingly, jurisdictional error.

(Emphasis in original).

55    The Appellants submit that here, the Tribunal was required to conduct a future-focused assessment of whether there was a real chance or risk of the Appellants facing serious or significant harm in Lebanon. In that regard, the First Appellant had contended that he feared harm not only because of his connection with his father-in-law and associated past activities but also on the basis of political activities he would engage in in connection with the Future Movement in the future, having regard to his ongoing commitment to that cause as demonstrated by his activities in Melbourne. Those were matters that Mr Assaf’s statutory declaration directly addressed.

56    The Appellants submit that Mr Assaf’s statutory declaration had “dual significance” in that regard. First, the evidence Mr Assaf gave as to the First Appellant’s political convictions and activities corroborated his evidence as to what had occurred in the past. It was capable of bearing on an assessment of his credit with respect to his account of political activities he had undertaken in Lebanon. Secondly, Mr Assaf’s evidence was probative of the likely nature and extent of the First Appellant’s political activities were he to return to Lebanon in the future.

57    Those were critical issues. In particular, identifying the precise extent of the First Appellant’s past and/or future involvement with the Future Movement in Lebanon was crucial in determining the risk that he might face. The Appellants submit that Tribunal found that “ordinary members” or “moderate supporters” of the Future Movement were not at risk or did not face a real chance of suffering serious harm in Lebanon (referring to paragraphs [123], [126] and [131] of the Tribunal’s reasons). The Tribunal found that, in view of its adverse credit finding, the First Appellant fell within that category. Notwithstanding his family connections, he was merely an ordinary member of the Future Movement who did not have his own political profile (referring to paragraphs [102]-[105] and [116] of the Tribunal’s reasons). Against that background, Mr Assaf’s statutory declaration was highly significant.

58    The Appellants submit that against those circumstances, it can be inferred from the Tribunal’s failure to refer to Mr Assaf’s evidence that the Tribunal failed to consider it. Given the significance of that evidence, that failure amounted to jurisdictional error. In particular, “applying BXK15, it is possible that the Tribunal would have reached a different decision if it had been conscious of the content of Mr Assaf’s statement”.

59    In oral argument Mr Wood, counsel for the Appellants, adopted the following passage of the Minister’s written submissions as a useful breakdown of the contents of Mr Assaf’s statutory declaration:

25.    The aspects of the Assaf Stat Dec which are now said to have been material were to the effect that the appellant:

   a)    has attended events of the Future Movement in Australia;

b)    is deeply knowledgeable about the [Future Movement Party] and its internal workings as a result of the appellant’s relationship with his father-in-law, and his own political commitments and involvement; and

c)    that he will continue to be active and involved with the FMP if returned to Lebanon, due to his own political commitments, deep knowledge of the party, and to keep his father in law’s legacy alive.

(Footnotes omitted).

60    Mr Wood accepted that Mr El Hawli’s evidence also addressed the matter identified at subparagraph (a). However, he submitted that the matters identified at subparagraphs (b) and (c) were not otherwise addressed in the evidence to which the Tribunal referred in its reasons.

61    The matters identified at subparagraphs (b) and (c) related to a particular aspect of the Appellants’ claims: namely that the First Appellant would be involved in the activities of the Future Movement in the future if retuned to Lebanon. In Mr Wood’s submission this was independent from the claims that the Appellants advanced based on what the First Appellant’s involvement was said to have been in the past. In his submission, the Court should infer that the Tribunal failed to consider those matters in addressing that independent claim.

62    With respect to the Minister’s submission (addressed below) that the aspects of Mr Assaf’s statutory declaration identified at subparagraphs (b) and (c) rose no higher than what the Tribunal ultimately found, Mr Wood submitted that the Tribunal found only that the First Appellant would be an ordinary member of the Future Movement party. Mr Wood submitted that this “de minimis” acceptance of the First Appellant’s likely future involvement with the Future Movement was not consistent with his wider claims, as were corroborated by Mr Assaf’s statutory declaration:

At [82], the Tribunal records that it suggested to the Appellant that he was simply a supporter, not active in the Future Movement. The Appellant responded that, had he not come to Australia, he would have been someone important in the Future Movement. He referred to important people that he knew and he says on his return he might be … stand for Parliament.

63    This, Mr Wood submitted, was “evidence that [the First Appellant] would be someone important emanating from the depth of his convictions”. That was different from what the Tribunal found. It rejected that claim. That reading of the Tribunal’s reasons was supported by its express reference (at [75]) to country information clearly distinguishing the risk faced by ordinary supporters of the Future Movement from that faced by leaders of the party.

64    Mr Wood submitted that the Tribunal drew a distinction between the risk posed to mere supporters of the Future Movement party and the risk posed to those who actively agitated for it, expressing (at [82]) doubt as to the First Appellant’s claim that he would fall into the latter category. Mr Assaf’s statutory declaration was corroborative of that particular claim:

… the Appellant said, “I would have been someone important,” and, in substance, “I’m going to be someone important; I may even stand for Parliament.” Now, the Tribunal clearly had doubts about the Appellant’s credibility and it expressed those doubts largely by reference to the Appellant, in its view, exaggerating aspects of his involvement in the past. Nowhere did the Tribunal expressly explain why the Appellant’s statement as to his intention in the future was not plausible, but perhaps fairly reading the Tribunal’s reasons you might think, well, it disbelieved the Appellant about the past and so it discounted his evidence about the future.

But that’s [why] Assaf matters, your Honour, because Assaf then becomes, in effect, a corroborative witness. Someone who knows the Appellant, has observed him over time, has spoken with him, has been engaged in the Future Movement in Australia with him, and says, “My belief is that this man will be active in the future.”

65    Mr Wood rejected the proposition that it might have been open to the Tribunal to reject the evidence that Mr Assaf gave in his statutory declaration as plausible in view of its adverse finding as to the First Appellant’s credit (at [102]). He submitted that “rejection of claims about past events does not foreclose or does not determine, necessarily, a claim about likely future events”. While the Tribunal found that the First Appellant had “overreached” in telling his story about the past, Mr Assaf was in a position to give direct evidence about his current and (likely) future political activities.

66    With respect to BXK15, the Court put to Mr Wood the proposition that there might be a third possibility in addition to those identified at paragraphs [16]-[17] of that decision. The Tribunal may have omitted to mention Mr Assaf’s statutory declaration because it overlooked it; because it did not consider it to be material; or because its consideration of that evidence was regarded as having been embraced within its discussion of Mr Assaf’s oral evidence.

67    Mr Wood, while noting that the relevant transcript was not before the Court, submitted that there was a significant distinction between Mr Assaf’s oral evidence (as summarised by the Tribunal) and his written evidence. In his statutory declaration, Mr Assaf expressed a view as to the political activities in which the First Appellant was likely to engage despite his father-in-law no longer being directly involved with the Future Movement. His evidence, in Mr Wood’s submission, was that the First Appellant was “going to take up the reins and continue the legacy of the father-in-law, actively.” The Tribunal’s summary of his oral evidence could not be regarded as having embraced that evidence.

68    With respect to the fact that the Tribunal did consider the evidence of Mr El Hawli, which may have suggested that the First Appellant’s level of participation in the activities of the Future Movement in Australia had been relatively modest, Mr Wood submitted that Mr Assaf’s evidence was distinct in that it suggested that he personally had a strong “bond” with the First Appellant. That gave him particular insight into the First Appellant’s political convictions.

69    Regarding the Minister’s submission (addressed below) that Mr Assaf’s evidence with respect to the First Appellant’s likely future activities if he were to return to Lebanon was merely assertion, Mr Wood submitted:

… that sounds to me, your Honour, a little bit like merits review in the sense that it’s identifying a basis upon which the Tribunal might have said, “Well, I know you’ve said that, Mr Assaf, but I don’t accept it for this reason.” But the whole point is it didn’t say that.

70    The evidence that Mr Assaf gave in his statutory declaration was independent evidence that was capable of supporting the First Appellant’s claims. On one level, it might be characterised as assertion. That however is true of all evidence that might be given about the future, which is nonetheless clearly relevant to the future-focused task the Tribunal is required to undertake. If the Tribunal were to reject the evidence that Mr Assaf had given in his statutory declaration, one would therefore expect it to give reasons for doing so.

71    For completeness, I note that Mr Wood also submitted that I would be entitled to infer that the transcript of the Tribunal hearing would not have assisted the Minister: having regard to his failure to adduce it. I declined to draw such an inference, in view of the Minister’s counsel confirming that his instructions were that the Minister did not have a copy of that document in his possession.

Minister’s submissions

72    The Minister accepts that the Tribunal fell into jurisdictional error if it ignored relevant material in such a way as to affect the exercise of its powers (Craig v South Australia [1995] HCA 58; 184 CLR 163). The Minister’s written submissions then identify what he asserts to be the established principles as are relevant to a ground of this nature.

73    The Minister first sets out the principles relevant to whether the Court should draw an inference that the Tribunal failed to consider Mr Assaf’s declaration from its failure to expressly refer to that document in its reasons. They include the principle that the Tribunal was not required to refer expressly to every item of evidence before it (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE) at [46]), and the principle that the Court is “generally entitled” to infer that the Tribunal did not consider evidence it did not mention in its reasons to be material (citing authorities including Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 209 ALR 67 (SZSRS) at [33]). The Minister submits that the issue is ultimately whether the evidence omitted from the reasons of the Tribunal can sensibly be understood as having been considered but not mentioned because the Tribunal did not understand it to be material (SZSRS at [34]) having regard to all the circumstances of the case (BXK15 at [16]).

74    The Minister then emphasises that even if it can be inferred that the Tribunal failed to consider certain material, the Appellants bear the onus of persuading the Court such a failure went to jurisdiction (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [53]). The Minister notes in that regard that a “fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of the error” (citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [111] and authorities approving that reasoning). The Minister submits that whether the Tribunal was obliged to expressly “deal with” particular evidence will depend on the circumstances of the case and the nature of the material, include its cogency and relevance (SZRKT at [12]). The Minister thus submits that the following passage from BXK15 (at [23]) is applicable in the present case:

the critical question is whether the Tribunal could possibly have assessed the appellant’s credibility (and hence the substantive issues) differently had it been conscious of the [relevant evidence] at the time it engaged in its own reasoning process.

75    In respect of Mr Assaf’s statutory declaration, the Minister advances two submissions. The Minister’s first submission is that the document was not material. It could not have advanced the Appellants’ claims, particularly in a context where the Tribunal had expressly referred to both Mr El Hawli’s letter (including in respect of its adverse credit finding) and Mr Assaf’s oral evidence. That evidence collectively covered the matters raised in Mr Assaf’s statutory declaration.

76    In that regard, the Minister submits that Mr El Hawli was better placed to assess the First Appellant’s involvement with the Future Movement in Australia and gave a more detailed account in that regard than Mr Assaf provided in his statutory declaration. The Minister notes on this point that in his statutory declaration, in describing his involvement with the Future Movement Mr Assaf says of Mr El Hawli (whom he identifies as a friend):

I think it is fair to say that Hussain el Hawli has been much more involved with the activities of the Future Movement in Melbourne than me.

77    The evidence that Mr Assaf gave went no further than what the Tribunal accepted, being that the Appellant had been an ordinary member of the Future Movement (with some increased involvement due to the identity of his father-in-law) who would continue to be involved with the party if he returned to Lebanon. The statutory declaration:

did not suggest that the [first] appellant had his own political profile separate from that of his father-in-law. Although he did say he thought the appellant would build on his profile, he went no further than simply asserting that belief. His concerns about the appellant were premised on reports of violence against [Future Movement] supporters and members, not upon a concern that the appellant would attract adverse attention as someone with a political profile.

(Footnotes omitted).

78    Consideration of Mr Assaf’s statutory declaration could not have affected the Tribunal’s 16 careful reasons for making an adverse credit finding with respect to the First Appellant, specifically that he had “exaggerated past facts and circumstances in order to weave a narrative that gives him a profile within the Future Movement” (see at [102] of the Tribunal’s reasons). That formed the basis for the Tribunal’s finding regarding the First Appellant’s political involvement and profile. Any failure to consider Mr Assaf’s statutory declaration was therefore not jurisdictional.

79    The Minister’s second submission is that in any case, the Court should infer that the Tribunal did in fact consider Mr Assaf’s statutory declaration for the following cumulative reasons:

(1)    The Court can infer that having had regard to Mr Assaf’s oral evidence, the more detailed and authoritative letter from Mr El Hawli and the Appellant’s own detailed statutory declaration, the Tribunal did not consider the statutory declaration to be material and thus concluded that it “did not warrant a mention”. Any findings in relation to the matters it addressed were subsumed within the Tribunal’s findings of greater generality as to the First Appellant’s past and future political involvement and profile, including the finding at paragraph [116] of its reasons (citing WAEE at [46]).

(2)    Mr Assaf’s statutory declaration was submitted to the Tribunal as an attachment to the email dated 28 October 2016 which also attached Mr El Hawli’s letter and the First Appellant’s statutory declaration. The Tribunal expressly referred to the other two attachments in its reasons on multiple occasions. The better inference in those circumstances is that the Tribunal had regard to all three attachments.

(3)    The Tribunal also referred to the submissions prepared by the Appellants’ agents on 2 November 2016, which (as noted above at [27]) expressly referred to the evidence given by Mr Assaf. The Minister submits that the Court should not lightly draw an inference of a failure to consider evidence in otherwise comprehensive reasons, where the evidence has at least been referred to at some point (WAEE at [46]).

80    In oral submissions Mr Grant, counsel for the Minister, focused on the issue of materiality. He submitted in that regard that some analysis of the “quality” of the evidence that Mr Assaf gave in his statutory declaration was required: although noting that he did not wish to invite the Court to engage in merits review. He relied on the following passage from SZRKT:

112.    As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.

81    Mr Grant then closely analysed the terms of Mr Assaf’s statutory declaration. He noted that Mr Assaf’s evidence was that the First Appellant would be “active and involved” in the party on return to Lebanon. He submitted that it was unclear what “active” meant, and further that this general phrase did not identify the particular activities in which the First Appellant might be involved. Mr Grant further submitted that Mr Assaf referred only referred to there being reports of harm to ordinary members and supporters of the party. He did not identify any particular risks to which “active and involved” members might be subject.

82    The Court put to Mr Grant that paragraph [24] of the statutory declaration went further, in referring to the First Appellant building on his existing profile. Mr Grant accepted that, and further accepted that this was a matter not addressed in Mr Assaf’s oral evidence or Mr El Hawli’s letter. He submitted however that nonetheless, it should be noted that Mr Assaf did not actually explain what that meant.

83    Mr Grant also sought to refute the extent to which on the Appellants’ case the Tribunal’s findings were inconsistent with Mr Assaf’s statutory declaration. In that regard, he took particular issue with the Appellants’ contention that the Tribunal drew a distinction between ordinary and active supporters of the party:

… it didn’t draw a distinction between someone who is active and someone who will do the thing that it found the applicant will do. So it didn’t find the applicant will not be active. We can, perhaps, say, if the applicant is only to vote and attend rallies, that is not active. But equally, is capable of being active. It’s, certainly, not a distinction that the tribunal, itself, has drawn.

…

I’m saying that the tribunal’s ultimate conclusions are consistent with Mr Assaf’s statutory declaration or at least the applicant hasn’t proved that Mr Assaf’s statutory declaration was inconsistent. And I submit he needed to prove the evidence was inconsistent to prove it could have made a difference to the tribunal’s decision.

84    With respect to the issue of whether the Court should infer that the statutory declaration was not considered, Mr Grant adopted the Court’s observation that there was not necessarily a strict dichotomy between the circumstances where a tribunal does not mention evidence because it has overlooked that evidence, and where it does not mention evidence because it does not consider that evidence to be material. There was a third possibility, being that the Tribunal’s consideration of Mr Assaf’s statutory declaration may have been “subsumed” within other parts of its reasoning. Specifically, Mr Grant submitted:

I would adopt your Honour’s point put against my friend that the Tribunal’s reference to Mr Assaf’s evidence at [88] was capable of encompassing the evidence at [88] was capable of encompassing the evidence given by Mr Assaf in a statutory declaration. He expressed concerns about the applicant’s safety if he were to return to Lebanon on the basis of his own political commitment which, I would submit, is capable read beneficially and that has evidently been a summary of his oral evidence of encompassing what was contained in this statutory declaration.

Appellants’ reply submissions

85    In reply, Mr Wood submitted that the Minister’s reliance on the submissions that the Appellants’ representatives had provided to the Tribunal was misguided in that those submissions in fact supported the Appellants’ case. He noted that the submissions referred to Mr Assaf’s evidence as follows (AB650):

… the appellant has remained active in his dedication to the Future Movement during his time here in Melbourne. His activities in this regard are confirmed by Mr Assaf and Mr El-Hawli.

86    Mr Wood submitted that that summary gave the impression that Mr Assaf’s evidence did not encompass evidence going to the Appellant’s likely future activities if returned to Lebanon. It “supports the proposition that the Tribunal thought Assaf had not gone further. He had”.

87    Mr Wood also advanced in reply further submissions in respect of materiality. He submitted that the Court should be cautious in dealing with Mr Grant’s submission that regard should be had to the “cogency” of the evidence given in the statutory declaration. He submitted that the Court should prefer the “safer” wording that Robertson J used at paragraph [111] of SZRKT, at which his Honour identified the fundamental question as being “the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error” (emphasis added). Mr Wood submitted that while the persuasiveness of the material was a matter for the Tribunal, the Court was in a position to assess its “importance”. He referred in that regard to the following passage from Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; 264 FCR 249:

54.    It is not for the Court to decide the credibility of the New Raid Information but, on its face, it is cogent and has a logical bearing on the risks he would face if returned to Iraq. It is therefore capable of affecting the Authority’s decision as to whether CQW17 has a well-founded fear of persecution or that there is a real risk he will suffer significant harm in Iraq, his country of origin. Had the Authority properly undertaken its task under s 473DD it would have: (a) turned its mind to whether the information was credible information which may properly have affected the consideration of his claims in that regard; and (b) would have dealt with the New Raid Information that related to Iraq as potentially relevant to its decision.

88    Mr Wood submitted that the Court should not consider the weight that might be accorded to Mr Assaf’s statutory declaration, but could be satisfied that the evidence was credible on its face and had a logical bearing on the risks that the First Appellant would face.

89    Finally, Mr Wood drew the Court’s attention to paragraphs [21]-[25] of the reasons of the Full Court in BXK15 as I have extracted above. He submitted that regardless of the Tribunal’s views concerning the First Appellant’s credit “in a broad sense”, what mattered critically was his credit with respect to his particular claims about his future activities if returned to Lebanon. It would not be open to the Court to find that if Mr Assaf’s statutory declaration – which was corroborative in that specific regard – had been considered, the Tribunal would regardless have inevitably reached the same conclusion given the “broader credit concerns” it had expressed.

Consideration

90    I accept Mr Wood’s submission that the Tribunal was required to conduct a future-focused assessment of whether there was a real chance or risk of CTK17 facing serious or significant harm in Lebanon. I also accept that in that regard, CTK17 contended before it that he feared harm not only because of his connection with his father-in-law and associated past activities but also on the basis of political activities in which he would engage in connection with the Future Movement in the future, having regard to his ongoing commitment to that cause as demonstrated by his activities in Melbourne.

91    I further accept that Mr Assaf’s statutory declaration directly addressed those points. For that reason I accept Mr Wood’s submission that Mr Assaf’s statutory declaration, if the Tribunal had accepted those particular aspects of his evidence, potentially was of “dual significance”. First, the evidence Mr Assaf gave as to CTK17’s political convictions and activities might be concluded to corroborate his evidence as to what had occurred in the past. Secondly, Mr Assaf’s evidence might be concluded to be probative of the likely nature and extent of CTK17’s political activities were he to return to Lebanon in the future.

92    It is common ground that there is nothing in the Tribunal’s reasons that specifically refers to Mr Assaf’s statutory declaration in those regards. I therefore proceed on the basis that the High Court’s statement in Craig v South Australia [1995] HCA 58; 184 CLR 160 that the failure of an administrative tribunal to consider materially relevant evidence can constitute jurisdictional error is potentially engaged.

93    An omission to mention such evidence in its written reasons may reveal that the Tribunal has made an error of law amounting to jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10]. This reflects the fact that written reasons permit scrutiny, enabling the courts to supervise the work of tribunals and ensure they act according to law. As Rares J observed in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 at [86]:

Hence, the importance the courts have placed on the absence from the written statement… of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal's exercise of a power conferred on it by the Parliament. This transparency is essential… to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error

94    However, the difficulty that confronts acceptance of Mr Wood’s further submissions based on those established premises is that it is also uncontentious that the Tribunal was not required to refer expressly to every item of evidence before it (WAEE at [46]).

95    In that regard I place only small weight on Mr Grant’s submission that a reviewing court is “generally entitled” to infer that a tribunal did not consider evidence it did not mention in its reasons to be material: SZSRS at [33]. Such general statements, if applied without regard to context, readily lend themselves to superficial analysis.

96    Instead, I proceed on the basis that whether a factor was not mentioned because the Tribunal did not understand it to be material (SZSRS at [34]) must be resolved having regard to all the circumstances of the case (BXK15 at [16]).

97    Included in the matrix of circumstances of this case is that Mr Assaf gave oral evidence before the Tribunal. I drew Mr Wood’s attention to the fact that the Court did not have the transcript of the hearing before it. I noted that that the Tribunal had recorded (albeit briefly) its findings with respect to the oral evidence Mr Assaf had given. In the context of whether an inference ought to be drawn that the Tribunal had somehow overlooked his statutory declaration in reaching those limited conclusions, I raised with Mr Wood what the Court might or might not draw from the absence of any transcript in the materials before it.

98    In response, Mr Wood accepted that the First Appellant carried the burden of proving that there had been an omission by oversight rather than by an assessed want of materiality. In that regard he then submitted:

Your Honour, the way I analyse that is this. The Minister is in possession of the transcript. The Minister has not put it on. The appellant bears the onus but Jones v Dunkel would suggest that the transcript, therefore, wouldn’t assist the Minister.

99    I declined to accept Mr Wood’s submission so premised after counsel for the Minister assured the Court that no transcription of the hearing was in the possession of the Minister. My refusal to make a Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel) finding against the Minister on that basis however may have been too generous with respect to the Appellants’ case. In that regard I have noted that in the court below, the primary judge rejected a submission pressed in respect of an alleged material omission by the Tribunal to have given consideration to Mr Assaf’s statutory declaration (albeit then pressed on a different premise as to its materiality) inter-alia for the following reasons:

Although the hearing was of four hours’ duration, the applicant did not seek to discharge his onus of proof in part by tendering a copy of the transcript of the Tribunal hearing. Although it is not entirely clear, it appears that Mr Assaf and the applicant were the only witnesses who attended the hearing to give evidence.

100    It may be that in circumstances where Mr Wood accepts that the First Appellant must know what transpired in the hearing before the Tribunal, and where the Appellants had been put on notice by those observations in the court below, in the absence of the Appellants adducing the transcript a Jones v Dunkel finding might be open to made against them rather than against the Minister.

101    However as Mr Grant made no submission to that effect and no argument was had on that premise, I decline to proceed in that manner. I will treat the absence of the transcript as facially neutral.

102    However, that returns me to the question of burden of proof having regard to the circumstances of the Tribunal’s reasons. Its reasons are entitled to be read without an eye attuned to the identification of error. In my view on a fair reading of the Tribunal’s reasons it is perfectly plausible, and entirely understandable, that - having comprehensively dismissed CTK17’s evidence that in the past he had been more than an ordinary supporter of the Future Movement - it viewed as entirely implausible his contention that he would change his spots in the future. It is equally plausible and understandable that in that context the Tribunal had dismissed as immaterial to its conclusion the suggestion to the contrary offered by Mr Assaf in his statutory declaration.

103    In the present case, there is an entirely plausible explanation as to why the Tribunal may have considered, but decided to place no weight on, (or, in other words, treat as material) the relevant aspects of Mr Assaf’s evidence. Those aspects were those which may, had they been accepted, have been taken to corroborate CTK17’s evidence that if he were to return to Lebanon he would take an active role in building on his father-in-law’s political legacy (including possibly by standing for Parliament) rather than simply remaining an ordinary supporter of the Future Movement. That explanation is the Tribunal’s detailed consideration, and convincingly reasoned rejection, of CTK17’s credit.

104    In the actual specific context of what was in issue before it, I am therefore not satisfied that the Appellants have discharged their burden of proof to establish that the preferable inference the Court should draw is that the Tribunal did not consider Mr Assaf’s statutory declaration for the purposes for which Mr Wood submitted it to have been relevant.

105    In that circumstance, no issue of the materiality of the supposed error arises. For completeness however, lest my reasoning be in error, I should say something on that point. Had I accepted that the Tribunal entirely overlooked, rather than discounted the materiality of, Mr Assaf’s evidence then I would have accepted Mr Wood’s submission that that failure was potentially significant. On the premise that the Tribunal actually overlooked those aspects of Mr Assaf’s evidence, that error could have affected the outcome. Although I accept Mr Grant’s observations that it was unlikely to have done so, the task of determining what weight to give to evidence potentially capable of affecting the result was for the Tribunal not the Court. I would have accordingly concluded that the error was a jurisdictional error.

Orders and disposition

106    I would dismiss the appeal.

107    The First Appellant is to pay the Minister’s costs as agreed or, in default, as taxed.

Associate:

Dated:    21 August 2020