Federal Court of Australia

CDK16 v Minister for Immigration and Border Protection [2020] FCA 1837

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is upheld.

2.    The orders of the Federal Circuit Court of Australia made on 13 December 2018 are set aside and in their place orders are made:

(a)    for the grant of the constitutional writs setting aside the decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 27 June 2016;

(b)    for the remittal of the matter to the Tribunal for determination according to law; and

(c)    that the first respondent pay the costs of the appellant of and incidental to the application made to the Federal Circuit Court of Australia.

3.    The scope of the remittal of the matter to the Tribunal according to Order 2 is to be determined according to the reasons of this Court given in support of the orders made in setting aside the orders of the Federal Circuit Court of Australia and remittal of the matter to the Tribunal to be determined according to law.

4.    The first respondent pay the costs of the appellant of and incidental to the appeal to this Court.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Introductory matters

1    These proceedings are concerned with an appeal from an order, and reasons for judgment explanatory of the order, of the Federal Circuit Court of Australia in dismissing the appellant’s application to that Court for the grant 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 visa under the provisions of the Migration Act 1958 (Cth) (the “Act”).

2    The appellant applied for a protection visa by an application dated 25 November 2013, lodged with the Department of Immigration and Citizenship on 26 November 2013. The appellant contended that he satisfied the criterion for a protection visa in s 36(2)(a) of the Act or, if not, that he satisfied the criterion in s 36(2)(aa) of the Act, and contended that the Minister ought to be satisfied of those matters for the purposes of s 65 of the Act.

3    Because the application was made prior to the commencement of the codified protection regime on 18 April 2015 established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the “2014 Amending Act”), the codified protection regime does not apply to the appellant’s application: Schedule 5, Part 4, Item 28, the 2014 Amending Act.

4    Accordingly, the amendments to the definition of “refugee” (now s 5H) and the introduction into the Act of a definition of a “well-founded fear of persecution” (now s 5J) and related amendments do not apply to a consideration of the appellant’s application.

5    Section 36(2)(a), prior to the 2014 Amending Act, provided that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention (Geneva, 28 July 1951) as amended by the Refugees Protocol (New York, 31 January 1967). The relevant definition of “refugee” is that contained in Article 1A(2) of the Refugees Convention. Although that definition is well-known, it is convenient to note that the term applies to any person who:

… owing to well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

6    As to complementary protection, s 36(2)(aa) provided then, as it does now, that a criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a non-citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

7    Although it will be necessary, having regard to the grounds of challenge to the correctness of the primary judge’s decision, to examine the content of the appellant’s claims before the Tribunal and the reasoning process of the Tribunal in reaching its findings leading to its determination of the statutory review, it is sufficient for present purposes to note that the appellant is an Ethiopian national of Oromo ethnicity. Before the delegate and the Tribunal he claimed to hold a well-founded fear of persecution by Ethiopian authorities should he return to Ethiopia, by reason of his imputed involvement with the outlawed Oromo Liberation Front (“OLF”) and his active membership of a political party described as the Oromo Peoples’ Congress (“OPC”). The Minister’s delegate and the Tribunal accepted that persons with an actual or imputed involvement with either the OLF or the OPC are subject to serious harassment in Ethiopia.

8    The Tribunal affirmed the delegate’s decision on the footing that it could not be satisfied, on the material put before it, including oral evidence and submissions, that the appellant’s “claims and evidence” concerning the OLF were “plausible” and found that they were “lacking in credibility”: Tribunal, 127. As to the claims and evidence concerning the appellant’s membership and engagement with the OPC, the Tribunal did not accept that the applicant had “ever been a member of the OPC as claimed” or that he had “ever been involved in any activity with the OPC including through engagement with committees or involvement in meetings”: Tribunal, 149.

9    A significant aspect of the Tribunal’s difficulty with the evidence of the appellant, and evidence relied upon by the appellant, was an apparent anomaly or inconsistency, in the Tribunal’s view, between the circumstance that persons with an actual or imputed involvement with either the OLF or the OPC were subject to serious harassment in Ethiopia by Ethiopian authorities, on the one hand, and the appellant’s high level of education in Ethiopia, employment and advancement in employment in Ethiopia, on the other hand. At 94, the Tribunal notes these matters:

The applicant’s evidence also indicates that he has been able to obtain a high level of education in Ethiopia and to work in a number of jobs, including jobs in the public sector. The applicant confirmed at the hearing that he studied at Mekelle University from October 1999 to July 2003, and received a Bachelor of Science from Mekelle University. He studied at Haramaya University from October 2009 to November 2011. He got a Master of Science from Haramaya University. The applicant confirmed that, as indicated in his application, he had been an instructor at Alage Atvet College in Zuway from October 2003 to July 2006 and an Assistant Researcher at Oromia Agricultural Research Institute from August 2006 to April 2011 ([t]he Tribunal notes that the applicant later sought to correct this evidence to indicate that he was at the Agricultural Research Centre from 2006 to 2009, and that from 2009 to 2011 he was a full-time student at Haramaya University). He confirmed that he had worked at the CASCAPE Project from May 2011 to September 2013. He indicated that he had come to Australia on a Student visa, indicating that he had applied through an organisation based in Kenya.

10    The Tribunal examined a range of country information which, among other things, suggested that the civil service is highly politicised and that obtaining employment is closely linked with membership of the ruling party and that selection for State-sponsored education requires the individual to be a member of, or close to, the ruling party: Tribunal, 98 and 99. The role of country information in the decision-making process of the Tribunal will be examined in these reasons. However, for present purposes, it is sufficient to note that the claimed difficulties of the appellant did not appear to the Tribunal to “sit comfortably”, having regard to country information, with the appellant’s ability to obtain a higher degree and maintain public sector employment over a lengthy period: Tribunal, 100 and 107.

11    As to the proceedings before the Federal Circuit Court, the appellant contends that the primary judge erred by failing to find that the Tribunal, in exercising its statutory review function under the Act, exceeded the limits or constraints upon the exercise of the Tribunal’s powers (thus exceeding its jurisdiction), because, put simply, the Tribunal’s decision is said to have been reached almost entirely on the basis of an adverse credit finding against the appellant in circumstances where: the Tribunal unreasonably refused to seek oral evidence from witnesses corroborating key aspects of the appellant’s account (Ground 1); the Tribunal’s factual findings were irrational and not logically supported by the available evidence (Ground 2); and the adverse credit finding made against the appellant was “exacerbated” by the mistranslation of key aspects of the appellant’s evidence at the hearing before the Tribunal (Ground 3).

The Grounds of Appeal

12    The Grounds of Appeal are lengthy and detailed. They are in these terms:

Grounds of appeal

1.    The Court erred in failing to find there was jurisdictional error in the Administrative Appeals Tribunal’s (Tribunal) decision to refuse to exercise its power under s 426(3), 427(1)(a) and 429A of the Migration Act 1958 (Migration Act) because the Tribunal’s refusal to take evidence on oath or affirmation from one or more of ten witnesses who had given statements in support of the applicant’s claims was unreasonable and irrational, unfair and unjust in breach of s 422B(3) of the Migration Act and/or constituted a constructive failure by the Tribunal to exercise its jurisdiction.

Particulars

a.    In support of his claims, the applicant provided to the Tribunal eleven witness statements corroborating critical aspects of his evidence in support of his claims, inter alia:

i.    the applicant’s brother’s detention in 2000;

ii.    the death of the applicant’s brother in 2003;

iii.    the applicant’s speech at his brother’s funeral; and

iv.    the applicant’s own detention on four occasions.

b.    The Tribunal took evidence from only one of those witnesses, Mr Abdei Etana.

c.    The applicant offered to provide the Tribunal with the contact details of each of the other ten witnesses, to enable the Tribunal to exercise its power to take evidence on oath [or] affirmation from these witnesses.

d.    Nine witnesses confirmed, in their written statements, their willingness to give oral evidence to the Tribunal.

e.    The applicant advised the Tribunal that it would be procedurally unfair for the Tribunal to reject the evidence of the witnesses without providing them with an opportunity to give oral evidence.

f.    In circumstances where the proposed oral evidence of the ten witnesses was highly relevant to the Tribunal’s assessment of the applicant’s credibility, and the Tribunal determined that it would reject the evidence of the applicant in respect of issues addressed by the statements provided by the ten witnesses, it was unreasonable and irrational for the Tribunal to determine that it would not seek to obtain evidence from any one or more of these witnesses.

g.    Further or in the alternative, the following factors relied upon by the Tribunal in making its decision were illogical and unreasonable and did not constitute an evident or intelligible justification for its refusal to exercise its power to obtain evidence:

i.    in relation to two of the witnesses, alleged discrepancies regarding the age of the applicant’s brother and timing of schooling, which neither the applicant nor the witnesses had an opportunity to comment upon;

ii.    in relation to two of the witnesses, the fact that the statements were unsigned;

iii.    in relation to one of the witnesses, the fact that the witness was concerned about the monitoring of his calls by the Ethiopian authorities, even though the witness had still indicated that he was prepared to be interviewed but subject to safety precautions;

iv.    in relation to all of the witnesses, alleged inconsistency between the statements and an unrelated circumstance, namely the education and employment achieved by the applicant;

v.    in relation to all of the witnesses, the fact that their contact detail were not provided on their statement, even though the applicant’s legal representative indicated on more than one occasion that he possessed such information and was willing to provide it to the Tribunal, and eight of the witnesses stated they had given their contact details to the applicant’s legal representative who was authorised to provide it to the Tribunal; and

vi.    in relation to all of the witnesses, the fact that the applicant had himself provided evidence at length at the hearing.

2.    The Court erred in failing to find there was jurisdictional error in the Tribunal’s decision to reject the applicant’s claims in support of his protection visa application, as the Tribunal made findings that were so unreasonable and illogical that no reasonable or logical Tribunal could make on the same evidence.

Particulars

a.    The Tribunal unreasonably and irrationally found, contrary to the overwhelming weight of the evidence, that the applicant’s brother had not been suspected of involvement in the Oromo Liberation Front (OLF), had not been detained by security forces and had not died in prison, despite:

i.    the detailed evidence of the applicant regarding the circumstances of his brother’s detention and death;

ii.    statements and evidence given by nine other witnesses, including a statement given by the applicant’s other brother and oral evidence given by another individual at the hearing, which corroborated the applicant’s evidence that his first brother had been detained as a result of his political activism and had died in prison; and

iii.    the failure of the Tribunal to avail itself of the opportunity to test the evidence of eight of those witnesses.

b.    The Tribunal unreasonably and irrationally found, contrary to the overwhelming weight of the evidence, that eight witness statements provided to the Tribunal in support of the applicant’s claims were unreliable [117], despite the fact that all eight witnesses stated that they had knowledge of:

i.    the death of the applicant’s brother; and

ii.    the detention of the applicant’s brother on the grounds that he was a political activist;

in circumstances where:

iii.    the Tribunal had an opportunity to contact the witnesses to test their evidence but did not avail itself of that opportunity; and

iv.    no evidentiary, rational or probative basis for consideration that anything said by any of the witnesses on any fact or matter relevant to the applicant’s claims was identified by the Tribunal as a reason for considering their evidence to be untrue or unreliable; and

v.    the only fact claimed by the Tribunal to contradict the evidence given by the eight witnesses was the applicant’s subsequent education and employment history.

c.    [Ground 2(c) has been abandoned.]

d.    The Tribunal’s finding that the applicant was not a member of the Oromo People’s Congress (OPC) because he did not disclose his membership in his protection visa application dated 25 November 2013 [138] was unreasonable and irrational because it was made contrary to:

iv.    the applicant’s evidence that there was not enough space on the protection visa application form to provide all of the information relevant to his claim;

v.    the applicant’s contemporaneous answers to questions 44, 46, 47 and 48 of Form 866C that he will provide a full statement or detailed information through his legal aid;

vi.    the additional information provided in the applicant’s statement dated 12 March 2014 specifically addressing his membership in and activities with the OPC;

vii.    the additional information contained in the applicant’s supplementary statement dated 28 February 2016 to the effect that OPC membership was not illegal;

viii.    corroborative independent evidence from witnesses and in documentary form detailing the applicant’s OPC membership; and

ix.    the applicant’s evidence at the hearing (if, alternatively to the allegations in paragraph 4(b) below, such evidence were given) that his OPC membership was a serious and important matter to his protection claim because of the current political landscape in Ethiopia, which, as the applicant submitted to the Tribunal, had deteriorated after the applicant made his protection visa application.

e.    [Ground 2(e) has been abandoned.]

f.    The Tribunal unreasonably and irrationally assessed as unreliable the letter of support from the Oromo Federalist Congress (successor organisation to the OPC) dated 25 November 2014 and signed by the chairman Mr Merera Gudina which confirmed the applicant was a member of the OPC [148] because:

i.    the letter did not provide details as to the nature of the committees the applicant coordinated or further detail as to the nature of his involvement;

ii.    the letter did not provide information about specific events relevant to his claims, such as the applicant’s arrest in 2010; and

iii.    the applicant had failed to give a satisfactory explanation as to why the letter had not been included in the submission dated 29 February 2016, despite the applicant’s legal representatives expressly stating that it was due to an oversight on their part that this had occurred [144];

none of which are rational or reasonable grounds for refusing to accept that the information contained in the letter corroborating the applicant’s membership with the OPC since 2008 was reliable.

g.    [Ground 2(g) has been abandoned.]

h.    The Tribunal’s finding that the applicant would have not made a speech about the inhumane treatment of his brother at his brother’s funeral in the presence of police ([194], [114]) was unreasonable and illogical in the context of:

i.    the applicant’s evidence before the Tribunal that he did not have any political affiliation at the time, did not consider that his speech was political in nature and did not, therefore, consider the risk associated with making the speech that he did;

ii.    the Tribunal’s speculative finding that the applicant would have been aware of the presence of the police at the funeral from the outset (and not part way through the applicant’s speech, as contended by the applicant), despite the applicant’s evidence that there were around 250 people at the funeral and that he was grieving the death of his brother;

iii.    the witnesses statement of Mr Berhanu Nono corroborating that there were upwards of 200 people at the applicant’s brother’s funeral and that the applicant made a speech at the funeral about how his brother had been jailed, had suffered and died; and

iv.    the applicant’s submission, relying upon the extensive psychological evidence, that the trauma experienced by the applicant as a result of his brother’s death would be highly likely to have caused diminished cognitive control, impulsive behaviour and anger on the part of the applicant, who was only 21 at the time of the funeral.

3.    The Court erred in failing to find there was jurisdictional error arising out of breach of the requirements of procedural fairness and/or s 425 of the Migration Act, as the applicant was denied a fair hearing and/or the opportunity to appear before the Tribunal to give evidence as a result of errors in the interpretation of the applicant’s evidence at hearing that individually or cumulatively led or might reasonably have led to material adverse findings against the applicant or might reasonably have had such an effect, through their materiality, frequency and/or context, that it cannot be concluded that the hearing before the Tribunal was fair.

Particulars

a.    The interpreter at the Tribunal hearing was in attendance remotely by telephone and interpreted from Oromo to English and from English to Oromo during the entirety of the Tribunal hearing of approximately five and a half hours in length.

(i)    The applicant’s OPC membership

b.    During the Tribunal hearing, the interpreter failed to correctly interpret the applicant’s evidence that the risk to OPC members arose from the current political situation in Ethiopia.

c.    The interpreter’s failure to correctly interpret the applicant’s evidence led or might reasonably have led the Tribunal to make material and adverse findings, including that the applicant did not give a “satisfactory explanation as to why, if [his OPC membership] claims were true, they were not in any way mentioned in response to the questions in the visa application” [138] (see also [145]) and that it did not accept that the applicant had been a member of the OPC [148].

(ii)    The applicant’s return to work [in] in the Gurawa district

d.    During the hearing, the Tribunal asked the applicant questions about his return to work in the Gurawa district between 4 September and 30 September 2013. The applicant’s evidence of the work that he did in the Gurawa district was incorrectly interpreted as “organising meetings with the local farmers”, when the applicant actually stated that his work did not connect him with the farmers and his job was related to organising data and related duties.

e.    The interpreter’s failure to correctly interpret the applicant’s evidence led or might reasonably have led the Tribunal to make material and adverse findings including that:

i.    the applicant returned to Gurawa to do the “same sort of work that [the applicant] claimed caused him the problems in the first place” [155];

ii.    the applicant failed to give any satisfactory explanation as to why, if the events surrounding the applicant’s detention in August 2013 did occur and the applicant was fearful for his life, he went back to Gurawa to continue his work [162]; and

iii.    the applicant’s claims and evidence were “very much lacking in credibility” and his claims concerning his detention in August 2013 should be rejected [162].

(iii)    The letter from the Oromo Federalist Congress

f.    [Ground 3(f) has been abandoned.]

g.    [Ground 3(g) has been abandoned.]

Unfair hearing and failure to provide an opportunity to give evidence

h.    The errors in translation particularised in paragraphs 4(c), (e) and (g) above, individually and cumulatively, resulted in the applicant being denied a fair hearing and/or the opportunity to appear before the Tribunal to give evidence.

i.    Further or in the alternative, the errors in translation referred to in paragraphs 4(b), (d) and (f) above might reasonably have had such an effect, through their materiality, frequency and/or context, that it cannot be concluded that the hearing before the Tribunal was fair and/or resulted in the applicant being denied the opportunity to appear before the Tribunal to give evidence.

Some matters of principle

13    It also 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.

14    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).

15    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) 264 CLR 541, Gageler J, at [30] (“SZVFW”). 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]. In order to decide “for itself” whether the decision of the primary judge was “right or wrong” in relation to each of the matters now the subject of the Grounds of Appeal, “the appellate court must reach its own conclusion as to whether the administrative decision was [legally] unreasonable” (SZVFW, Gageler J at [20]) on the basis contended for by the appellant and whether the Tribunal’s factual findings were irrational and not logically supported by the available evidence.

16    In doing so, it is, plainly enough, not the role of the Federal Court exercising its appellate jurisdiction (nor the role of the Federal Circuit Court in considering an application for the grant of the constitutional writs) to substitute its own view as to the merits of the decision reached by the administrative decision-maker.

17    Focusing upon the notion of “legal” unreasonableness in the Tribunal’s decision in the exercise of the Tribunal’s statutory review function and whether factual findings (or other material findings/conclusions) were irrational or not supported by the available evidence recognises that the legality of the exercise of the jurisdiction conferred upon the repository of the power is to be tested by reference to principled and demonstrated failings in the exercise of the power (that is, conduct going beyond the limits of decisional authority), not by reference to whether the Court takes its own particular view about the merits of the decision reached by the decision-maker.

18    As to the principles informing the question of whether an adverse credit finding reveals jurisdictional error, these matters should be noted.

19    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 that there is a risk that a mechanical use of the phrase “par excellence” as a formula, (or ‘blindly repeating McHugh J’s comments in Ex parte Durairajasingham’), fails sufficiently to appreciate this “important reality”: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, Griffiths, Perry and Bromwich JJ at [83](d); CQG15 at [37].

20    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; or a failure to afford procedural fairness; or 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 are to 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].

21    That, of course, does not mean, as already mentioned, 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. 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].

22    As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [8]:

The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: [see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30], French CJ; [66], Hayne, Kiefel and Bell JJ; [105], Gageler J].

23    It is important to keep in mind that the terms, scope and content of the conferral of the power on the repository are closely examined because the exercise of the power will be conditioned by the express text of the provisions and may be conditioned by obligations which are implicit in the relevant statutory scheme and (or) by obligations which are implied through the operation of common law principles. Although the statutory scheme established by Part 7 of the Act is examined shortly, the following observations of Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (“SZMTA”) at [7], [9] and [11]-[14] ought to be noted (citations omitted):

[7]    Making a valid application for review of a delegate’s decision enlivens an overarching duty on the part of the Tribunal to review the decision under s 414. Performance of that duty is completed on the Tribunal making a valid decision of its own, ordinarily either to affirm the delegate’s decision or to set the delegate’s decision aside and substitute a new decision.

…

[9]    In performing its overarching duty to review the decision of the delegate, the Tribunal “is not bound by technicalities, legal forms or rules of evidence” and is exhorted, as distinct from compelled, to “act according to substantial justice and the merits of the case”. Performance of the overarching duty is nevertheless conditioned on material observance of obligations imposed by Pt 7, some of which are expressed, some of which are implicit in the statutory scheme, and some of which are implied through the operation of common law principles of interpretation.

…

[11]    Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implied through the operation of common law principles of interpretation, however, is an obligation to act reasonably in considering and exercising procedural powers expressly conferred on the Tribunal by other provisions within Div 4 of Pt 7. Those procedural powers of the Tribunal include a power conferred by s 427(1)(c) to “give information to the applicant”, which is expressed to be subject to ss 438 and 440, as well as powers conferred by s 427(1)(a) to “take evidence on oath or affirmation” and by s 427(1)(d) to “require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination”.

…

[13]    Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review “in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself”. That obligation is fundamental to the nature of the review for which Pt 7 provides. Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support for the applicant’s case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case.

[14]    The Tribunal’s decision on completion of the review is ordinarily required by s 430 to be recorded in a written statement which, amongst other things, “sets out the reasons for the decision”, “sets out the findings on any material questions of fact”, and “refers to the evidence or any other material on which the findings of fact were based”. The section “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”.

[emphasis added]

24    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), their Honours affirmed earlier statements of principle in the High Court to the effect that one of the presumptions of statutory construction is that Parliament confers power on a repository on the condition (described by Gaudron J in Abebe v The Commonwealth (1999) 197 CLR 510 at 554 [116] as an “essential condition”) that it be exercised reasonably: French CJ at [29]; Hayne, Kiefel and Bell JJ at [63] and Gageler J at [88].

25    As to the standard of legal unreasonableness, Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”) said this:

44    In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ: cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. [See the plurality in Li at [76]]. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]). …

…

48    The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

[emphasis added]

26    The following important observations of Gageler J in SZVFW at [59] ought to be noted (citations omitted):

59    References in Stretton to a conclusion that a decision is legally unreasonable being “evaluative” and to the task being “not definitional, but one of characterisation” were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by “the terms, scope and policy of the statute” but also by “fundamental values” anchored in the common law tradition. Reasonableness is itself a traditional conception of the common law – a translation of “the human into the legal”. Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, “[t]here are no talismanic words that can avoid the process of judgment”.

[emphasis added]

27    There are other aspects of the observations of their Honours in Singh and other matters of legal principle relevant to the Grounds of Appeal to which I will return later in these reasons.

28    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 Tribunal’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]

Aspects of the statutory scheme

29    The relevant provisions are these.

30    A decision to refuse to grant a protection visa is a Part 7 reviewable decision under the Act: s 411.

31    If a valid application for review of such a decision is made under the Act, the Tribunal must review the decision: s 414(1). The Tribunal may, for the purposes of such a review, exercise all the powers and discretions conferred by the Act on the person who made the decision: s 415.

32    The Tribunal, in reviewing such a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to “substantial justice” and “the merits of the case”: s 420. Division 4 of Part 7 of the Act is concerned with the topic of the “conduct of review” by the Tribunal. Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with: s 422B(1). In applying Division 4, the Tribunal must act in a way that is “fair and just”: s 422B(3).

33    An applicant for review by the Tribunal may give the Registrar a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and written arguments relating to the issues arising in relation to the decision under review: s 423(1)(a) and (b).

34    Section 423A was introduced into the Act by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). The section commenced on 18 April 2015. However, the section only applies to an application for a protection visa made on or after that date: Schedule 1, Part 3, Item 15(4) of that Act. Thus, it has no application to the appellant’s application for a protection visa. I mention the section in the context of the grounds of challenge to the primary judge’s decision because s 423A(2), had it applied, might have had some relevance for the present matter. Section 423A(2) provides that “[i]n making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made”. The provision, however, is anomalous because at the relevant time (and now) s 423A refers to an “RRT-reviewable decision” rather than a Part 7 reviewable decision. All other references in the Act to an RRT-reviewable decision have been removed by amended legislation.

35    In conducting the review, the Tribunal may “get” any information that it considers relevant. However, if the Tribunal gets such information, it must have regard to that information in making the decision on review: s 424(1). Without limiting that subsection, the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information: s 424(2). A written invitation under s 424(2) must be given by one of the methods specified in s 441A.

36    If a person is invited in writing under s 424 to give information to the Tribunal, the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers appropriate in the circumstances: s 424B. Subject to s 425(2), the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day, time and place at which the applicant is to appear: s 425A.

37    In the notice under s 425A, the Tribunal must notify the applicant that he or she is invited to appear before the Tribunal to give evidence and give notice of the effect of subsection (2) of s 426: s 426(1). Section 426(2) provides that the applicant may, within seven days after being notified under s 426(1), give the Tribunal written notice that the applicant “wants the Tribunal to obtain oral evidence from a person or persons named in the notice”.

38    If the Tribunal is so notified by an applicant under s 426(2), the Tribunal “must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice”: s 426(3).

39    The conferral of an entitlement upon an applicant to give the Tribunal written notice within the relevant time that the applicant wants the Tribunal to obtain oral evidence from a person nominated in the notice, coupled with an obligation on the Tribunal to have regard to the applicant’s wishes in that regard, might be thought to contain within the two provisions (s 426(2) and s 426(3)), as a matter of construction having regard to the evident purpose of the section in the context of a review of the delegate’s decision, a conferral of power upon the Tribunal to obtain evidence, orally or otherwise, from a person named in the applicant’s notice if the Tribunal, having had regard to the applicant’s wishes, decides that it ought to obtain evidence from the nominated person, either orally or otherwise.

40    However, there is debate in the authorities on the source of the Tribunal’s power to obtain evidence from such a person (as, on one view, the source of the power does not reside in s 426(2) and (3) itself). Section 424(1) and (2) confer power on the Tribunal to get information from “a person”. Apart from that section, s 427(1) confers power on the Tribunal to “take evidence on oath or affirmation” (s 427(1)(a)); power to require the Secretary to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation (s 427(1)(d)); and power to summon a person to appear before the Tribunal to give evidence: s 427(3).

41    Section 428 provides that the evidence power contained in s 427(1)(a) may be exercised on behalf of the Tribunal by a member conducting the review or another person, whether or not a member, authorised in writing by that member: s 428(1)(a) and (b). Moreover, the evidence power may be exercised inside or outside Australia and subject to any limitations or requirements specified by the Tribunal: s 428(2)(a) and (b). Section 428(3) confers powers on a person other than the member conducting the review who is exercising the evidence power on behalf of the Tribunal. Section 429A provides that, for the purposes of the review of a decision, the Tribunal may allow the appearance before the Tribunal of the applicant, or the giving of evidence by the applicant “or any other person” to be by telephone or closed-circuit television or by any other means of communication: s 429A.

42    Where the Tribunal makes its decision on a review, the Tribunal must make a written statement that sets out the decision, the reasons for the decision and findings on any material questions of fact. The written statement must refer to the evidence or any other material on which the findings of fact are based.

The Tribunal’s reasons for deciding as it did

43    Having regard to the grounds of challenge to the jurisdictional legality of the Tribunal’s decision, the appellant particularly, but also the respondent, took the Court extensively to the factual context of the appellant’s claims to hold a well-founded fear of persecution (and complementary protection claims) so as to identify why it is said that particular findings as to credibility and the Tribunal’s election to not obtain oral evidence from the nominated witnesses, is properly characterised as legally unreasonable or decisions which are irrational, unfair or unjust. Accordingly, in order to do justice to these contentions, it is necessary to examine the factual foundation put to the Tribunal for the claims and then identify the basis upon which the Tribunal found as it did.

The factual matters concerning the appellant’s evidence to which the Court was taken

44    In the application (document) for a Protection visa, the appellant was asked (at Q 44): “Have you experienced harm in that country [Ethiopia]?” In answer, the appellant filled up the available space in the box on the form by writing this:

Since 2004 to 2013, I have experienced significant harm by Ethiopian government authority (secret police) for the reason that they have suspected me to be supporter of Oromo people liberation front which is an organisation struggling to ensure self determination and freedom of Oromo people in Ethiopia.

I was subjected to torture, inhuman treatment, and interrogation at different times.

I will provide my full statement of harms I experienced in that country through my legal aid.

45    The threshold criticism the Minister makes of this answer is that if someone is going to say why he or she fears harm (in his or her country of nationality should they return) or “why someone is chasing you”, the person could have written in the box “and I was a member of a political party called X”. The Minister’s threshold point, going to credibility (looking to the Tribunal’s analysis) is that when the appellant had the chance to say why someone was wishing to harm him, he omitted to say something that later became an important reason supporting a claim to hold a well-founded fear of persecution. The appellant says that his answer made plain that a “full statement of harms” experienced in Ethiopia would be provided once the appellant had access to legal aid and he said so a number of times in his answers on the form: see answers to Questions 44, 46, 47 and 48.

46    In the application document, the appellant was asked the following further questions and gave the following answers in each box on the form:

45    What do you fear may happen to you if you go back to that country?

My fear for my safety is based on the experience of detention, torture and inhuman treatment that I suffered under the hands of the Ethiopian police in the past.

There is also new development [happened] to my wife and children after my arrival in Australia. This development is directly related to my fears to my safety of my life.

A return to Ethiopia present me with [severe] threat on my life. As I know very well that I will face severe consequences of imprisonment, [interrogation], severe torture and eventually death.

46    Who do you think may harm/mistreat you if you go back?

It is Ethiopian authorities that would harm/mistreat me. It is [secret] police that were meant to uphold the law that were treated me inhumanely.

I will provide full detail information through my legal aid.

47    Why do you think this will happen to you if you go back?

- Because of the Ethiopian government authority ([secret] police) are suspicious of me to be supporter Oromo liberation front (OLF).

- Because of my departure to Australia could be seen by those [secret] polices as if I have made contact and information sharing with OLF overseas.

- I was recently advised by my wife that [secret] polices came to my house at 8:30pm and asked her about me and I was informed by my friend the [secret] police looking for my arrest.

I will provide detail statement through my legal aid.

48    Do you think the authorities of that country can and will protect you if you go back?

No     Why not?

Yes     Because up to the date of my departure to Australia, I was subjected to torture, [interrogation] and detention by the Ethiopian government authority so that I do not expect any kind of protection from that government.

I will provide my full statement through my legal aid.

47    Each of the boxes on the form has underneath each box the words “If insufficient space, attach additional details”.

48    The appellant then expanded upon the answers he gave to Questions 44 to 48 in a statement set out in a letter dated 11 March 2014 addressed to the Department. In the letter, he explains that he belongs to the Oromo ethnic group which he describes as the largest ethnic group in Ethiopia representing about 40% of Ethiopia’s 87 million people. In his statement, he says the following things.

49    For the last four decades the Oromo people have been struggling by peaceful means, by many Oromo political organisations, for a fairer level of representation in “governance”. The most “coherent” organisation has been the OLF. The strategy of the government has been to suppress this struggle. Since the Tigrayan People’s Liberation Front (the “TPLF”) came to power in 1991, it has recognised that the vast majority of Oromo people rally behind the OLF and, as a result, the TPLF began imprisoning OLF representatives, members of the OLF and supporters of the OLF. The TPLF has particularly targeted Oromo families committed to the OLF, and the appellant’s family is among this group of families that have faced severe persecution.

50    As to the persecution of his family, the appellant says in his statement that his brother “TG” became the first family member to become a victim of the TPLF’s “brutal rule”. TG was tortured and intimidated due to “being affiliated with OLF members”. Due to the “inhuman punishment” of TG while in custody, TG died on 23 September 2003 in the “Shambu prison centre”. TG’s funeral was conducted on 24 September 2003. The appellant states that 250 people attended the funeral and three policemen were also present “watching the proceedings and the people at [the] memorial [service]”. The appellant spoke at the funeral on behalf of his brother’s wife and children and read background material about his brother. In his speech, the appellant highlighted things his brother had told him, and things the appellant had observed, when visiting his brother in custody. The appellant states that he said these things about his brother in the course of his speech:

You were denied medical attention and your life came to pass after years of suffering. The inhuman treatment and persecution you and other innocent Oromos faced will never be forgotten by your family and millions of Oromos. Dictators will pass and time will come when they will be judged for their human right violations.

51    The appellant states that about four hours after the funeral three police officers came to his brother’s house and took the appellant to the Amuru district police station and questioned him about the speech. The appellant states that the police officers said to him:

You were not allowed to talk about the circumstance[s] of your brother’s death. The content of your speech in public was against the government and has [a] political motive.

52    The appellant states that he was highly saddened by the loss of his brother and by being denied the freedom he needed to mourn his brother’s tragic death. He states that he said to the police:

One day you guys will be judged for treating human being[s] in an inhuman way and for abusing power to threaten [the] lives of innocent citizens.

53    The appellant states that when he said this, one of the officers slapped his face and kicked him repeatedly. He fell to the ground and the officer continued to hit him on the ground until the appellant lost consciousness. He states that on the next day he found himself in another room where police officers continued to “intimidate” him and threaten that they would “kill” him and his family unless he and his family “kept out of supporting the OLF and its political programs”. He states that he was detained for two weeks and during this time he was subjected to having his arms tied and he was forced to sit on a cold concrete floor for extended periods. He states that he was repeatedly interrogated by police to reveal information about the OLF. He states that he was scared that he would be killed if he were to be again discovered speaking against the government. He states that he was finally released from detention.

54    The appellant states that the second family victim of political persecution at the hands of TPLF authorities was his brother “GG”.

55    The appellant states that GG was persecuted for being suspected of having a connection with the OLF. He states that GG was working with his father on a farm they jointly owned. He states that GG was suspected as having a connection with the “chief coordinator of [the] OLF in [the] Amuru district” and police were seeking to arrest him. He states that GG then fled to Kenya in October 2003 “to save his life”. He states that the Ethiopian security police continued to harass the remaining members of the appellant’s family and following TG’s death, the authorities “continued to take my father to Amuru police station, and intimidated him several times”. He states that in December 2003, his father, mother and sister were arrested by “security police” in relation to the disappearance of GG. He states that they were detained for about two months.

56    The appellant states that he suffered persecution in the workplace. He puts it in the following way.

57    In 2004, while working at “Alage ATVET College” (the “College”), a body or organisation called the “Oromo people’s democratic organisation” (the “OPDO”) was making “massive campaigns” for the 2005 national election. The OPDO is described by the appellant in his statement as a “puppet organisation” of the TPLF and thus a “puppet organisation” of the ruling party. The OPDO had “cadres” at the College chaired by a person named “Mr AG”. Four other people were involved in the “cadres”. Their role in the College was to organise members to observe or “spy” on the College community for expressions of political opinion and to provide information to the security police. From 15 to 30 October 2004, the College hosted a meeting of the OPDO party with participants drawn from different parts of the Oromia region. It was mandatory for the Oromo community members in the College to participate in the meeting. At the end of the meeting, the appellant was requested by members of the cadre to be a member of the OPDO and take part in the 2005 national election campaign. The appellant was expected to rally Oromo students in the College to elect members of the OPDO party. He was expected to take part in mobilising the students, disseminating the OPDO’s political program, to become involved in its meetings and to make financial contributions on a monthly basis. He was told that if he abided by these requirements, he would “get position, access to further education, and other benefits from the ruling party”. He refused to be a member because he was not interested in being involved in “the wrong deeds of OPDO which involves arresting, torturing and killing of innocent Oromos”.

58    Following his refusal, Mr AG, who was then the chairperson of the “OPDO cadres” at the College, called the appellant into his office in November 2004 and interrogated the appellant about his reasons for refusing to become involved. The appellant says that Mr AG said this to him:

You have a hidden political agenda against the government and you will experience severe consequences in your life and employment. If you refuse the membership while [the] government is paying [your] salary, you would not get promotion, access to further study and also be fired from your job.

59    The appellant was “quite aware” that the OPDO had been watching “every aspect of my footsteps” and apart from asking him questions in person, the appellant was advised by his students that people were collecting information about what he said to students in the classroom concerning any political attitudes expressed in any class.

60    On 16 June 2005, students at the College and supporters of the opposition party demonstrated over alleged electoral fraud. The appellant participated in the demonstration along with students and College staff. On the same day, security police came to the appellant’s house at 8:00pm, handcuffed and blindfolded him and took him to the “Ziway detention centre”. He was kept there for three weeks and “repeatedly interrogated, beaten, and subjected to starvation”.

61    The appellant says that the government offers further study opportunities every year for College instructors who have rendered service for more than a year. This occurred while the appellant was working at the College. OPDO party membership was the primary criterion for an application to be considered and to receive any increase in salary. The appellant states that due to his refusal to become a party member of the OPDO, he was “specifically targeted and denied long term study [opportunities] and promotion”. Finally, he was obliged to leave the College “in fear of further persecution”.

62    The appellant says that he joined Haramaya University in October 2009 and began a two year course of degree study for a Master of Science degree. During this time, he was an “active member” of the Oromo People’s Congress (the “OPC”) which he describes as a “political party”. He states that the OPC is struggling to create a democratic system in the country so as to ensure the rights of Oromo people to self-determination and to secure other cultural and social objectives.

63    The appellant states that on 25 February 2010, representatives of the OPC party leaders held meetings with its members from the Haramaya University. He says that 150 students and party members participated. He was a “member of the organising committee” for the meeting.

64    The appellant states that on 26 February 2010 at about 7:30pm he was taken from his dormitory by two persons wearing a federal police uniform and taken to a federal police temporary office located in the University. He says this:

They let me kneel down and continued to hit me with long black plastic [sticks]. I was taken to Harari police station and kept in custody for five days where I was subjected [to] interrogations, intimidation and beating and finally I was released on condition to appear wherever summoned by security officials.

65    The appellant states that since that incident, the OPDO have had him under surveillance at Haramaya University. He states that after his employment and placement in a project called the “CASCAPE project” at Haramaya University in May 2011, he used to travel to remote areas for weeks at a time to carry out project activities which involved “working with rural communities, conducting meetings and consultation workshops with farmers for scaling up of improved agricultural technologies”. He states that this gave him the opportunity to establish good links with the farming community in the project sites. He states that this frequent travel for “field work and close contact with the farming community” was seen negatively by “OPDO cadres at the university”.

66    The appellant states that in August 2013, he had been conducting “farm surveying” on 60 farm households in the Gurawa district which he describes as one of the “mandate areas” for the CASCAPE project in which he was working. He states that while he was conducting farm surveys in these locations, a dispute arose between the farming community and government militias due to the circumstance that farmers were forced to participate in extended government political meetings. The appellant was warned by government militias to leave the site. The appellant states that having seen the “unsafe condition” he returned home, terminating the survey work he was undertaking. He states that on 15 August 2013, government secret police came to his house and searched extensively. They “ripped everything apart and threatened to kill me in front of my wife and my two children unless I volunteered to tell them that I was involved in mobilizing farmers against government militias”. He states as follows:

They dragged me into the police pickup truck and took me with them while my children and my wife looked over helplessly. I was detained at Adele detention centre for ten days. During my detention, I was repeatedly beaten up. They said to me that I have got two days to tell them the information they [are] looking for or they would kill me. I begged one of the officers that there was nothing I did with the farming community with regards to political activity. After failing to find solid proof to charge me, I was released on condition that I report to the police on daily basis. I complied with their demand without failing. Every time I went they would humiliate me asking “would it not be better for you to tell us the information and forget about the need to come and report?”

67    In his statement, the appellant also says this:

In my workplace, I continued to suffer persecution in the hands of the government party – OPDO key informants who continued to come and watch everything I do with farming community. I could not even go to target project sites without being followed and harassed by the secret police officers. On September 4, 2013 at about 9:00am, I started to drive from the Hotel I rented in Gurawa district to [a] project site which was about 30 minutes drive from the site. On my way to my work place, two persons wearing civilian clothing followed me with [a] motorbike up to the place of my work. They remained at [a] far distance until I [finished the] consultation meeting with farmers. On the next date, one of the farmers told me that the persons who followed me were security forces in the district and these persons asked him the content of the meeting.

68    The appellant states that his wife completed a Diploma in Clinical Nursing in 2010 but was refused a job because she was not a member of the OPDO. In 2013, she opened a small business in a small shop close to where she lived selling foodstuffs. The appellant says that persons associated with the OPDO sealed up the shop and took away her licence to trade. The family is entirely supported by renting the house they own. The appellant states that his decision to seek protection in Australia is a “very disturbing decision” given his responsibilities to his family in Ethiopia, but a detained father and husband is of “no benefit … to his family”.

69    In September 2012, “AusAID” announced an opportunity to take up a scholarship in Australia. The appellant believed that he would qualify for short term training and he was supported in an application by the project coordinator (of the “CASCAPE Project”). In March 2013, he was notified that he had been selected for the program. He was permitted to leave Ethiopia with a valid exit visa so as to enter into the training program. He says that in October 2013 after his arrival in Australia, his wife told him that security forces came to his house and interrogated his wife about his whereabouts and the date of his return. She was scared by this event. He says that, should he return to Ethiopia, he will suffer “severe consequences of interrogations, intimidation, torture, imprisonment and possibly death in the hands of security [police] due to my departure to Australia without their consent and failing to report on [a] daily basis”. He says that his travel to Australia could be seen by OPDO security police as an attempt to share information with those overseas opposing the Ethiopian government.

70    All of the matters at [48] to [69] of these reasons are contained in the appellant’s statement of 11 March 2014.

Aspects of the approach to Part 7 of the Act

71    The Tribunal, when conducting a review under Part 7 of the Act, is not concerned with the “correction of error” on the part of the Minister’s delegate but is engaged in a de novo consideration of the merits of the decision referred to it. The task of the Tribunal is to consider the application for a protection visa “afresh” and to determine “for itself” whether or not it is satisfied that the criteria for the grant of the visa have been met. The precise character of the review to be undertaken by the Tribunal (or any authority or tribunal undertaking a review of an administrative decision) is ultimately always a function of the statutory context. For example, in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (“ABT17”), the plurality, Kiefel CJ, Bell, Gageler and Keane JJ observe that the nature of the jurisdiction exercised by the Immigration Assessment Authority in conducting a review of a fast track reviewable decision is well settled (having regard to Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226) and observed that when conducting a review, the IAA is not concerned with the correction of error but is engaged in a “de novo consideration of the merits of the decision that has been referred to it” imposing an obligation on the IAA to consider the matter afresh and determine the application for the grant of the visa for itself. However, as to the IAA, Nettle J expressed this observation in ABT17 at [59]: “… [F]or the purposes of assessing whether it was legally unreasonable for the IAA to depart from credibility findings made by the Minister’s delegate pursuant to Subdivs AB and AC of Div 3 of Pt 2 of the Act, the task of the IAA is more closely analogous to an appeal by way of rehearing”. Gordon J and Edelman J, in separate reasons, in ABT17 emphasise that care needs to be taken with expressions like “hearing de novo” as the precise character of the review by the relevant body is ultimately always a function of the statutory context.

72    Taking account of all of those considerations and the statutory text of Part 7 described earlier, it is, in my view, correct to say, particularly having regard to the “overarching duty” on the part of the Tribunal to review the decision under s 414, that when the Tribunal conducts a review under Part 7 it is not concerned with the correction of error on the part of the Minister’s delegate but is engaged in a true de novo consideration of the merits of the decision so as to form its own view about whether it can be satisfied that the applicant meets the criteria for a protection visa having regard to the powers, duties and obligations set out in Part 7 of the Act, taking into account the observations in SZMTA set out at [23] of these reasons.

73    That being so, it is not necessary to analyse the delegate’s decision for the purpose, in effect, of seeking to find where the delegate may have “gone wrong”. However, it may be useful to simply note an aspect of the delegate’s decision that may be thought to have been influential in the reasoning of the Tribunal.

74    As to that, the delegate said this:

While the evidence before me indicates that the Ethiopian government does not have direct control of the CASCAPE project, it is conducted in close co-operation with the government who contributes to its co-funding through university funding. Given the Ethiopian [government’s] influence over all aspects of Ethiopian society, and aid programs in particular, I am not satisfied that the government would have no influence on employment in the project and endorsement of candidates for an overseas education opportunity such as an AusAID scholarship, and I find it implausible that somebody of the applicant’s claimed political profile could be employed for three years by CASCAPE and nominated for training that involves foreign travel without demurral from the Ethiopian government at some level. When considered cumulatively with the other concerns regarding the credibility of the applicant’s account I find that this contributes to undermining the credibility of his claims.

…

I found the applicant’s account of his public outburst at his brother’s funeral to be unconvincing and implausible in light of the available country information. I am not satisfied that even in a distressed state the applicant would make politically inflammatory remarks in a public forum in the knowledge that police were present, nor do I accept that the applicant would think his actions would provoke any trouble for him. When considered cumulatively with the other concerns regarding the credibility of the applicant’s account I find that this contributes to undermining the credibility of his claims.

75    The appellant was invited to attend a hearing before the Tribunal on 8 March 2016.

The submission and related material put to the Tribunal by Gilbert+Tobin

76    On 29 February 2016, the lawyers who had commenced acting on behalf of the appellant in 2015, Gilbert+Tobin, sent an email to the Tribunal attaching submissions in support of the appellant’s application before the Tribunal, a supplementary statement of the appellant, attachments to that statement and statements of “Mr TA” (whose name I will not mention in full in these publicly published reasons), Arie van Kekem and Abdei Etana. The email observes that arrangements had been made for Mr Etana to attend the hearing to be examined should the Tribunal so require. As to the statements by Mr TA and Mr van Kekem, the email observes that both reside overseas and are unable to attend the hearing although they have indicated that they would be happy to be questioned by the Tribunal by telephone if the Tribunal wishes to do so. However, the email observes that arrangements would need to be made in advance having regard to the international time differences. The email observes that both witnesses speak English although it is not their first language. The email also observes that as to Mr TA, “there is an additional sensitivity in that he lives in Ethiopia and has concerns about being reported to the Ethiopian authorities” and “[a]ny interview would need to be at a time when he is able to speak confidentially”. The email observes that if the Tribunal wishes to speak with either or both of those witnesses, could the Tribunal let the solicitors know and Gilbert+Tobin would assist with making the necessary arrangements.

77    In the submissions attached to the email, the author sets out six grounds on which the appellant sought protection from persecution or a real risk of significant harm should he return to Ethiopia. The first of those grounds was put this way:

(a)    his political opinion as a member of the Oromo Peoples’ Congress (OPC) and an active spokesman and organiser:

•    on behalf of the OPC;

•    in support of improved conditions for the Oromo people generally; and

•    in opposition to the policies of the Ethiopian regime;

…

78    The second ground was the appellant’s “imputed political opinions as a suspected member of the outlawed Oromo Liberation Front (OLF)”.

79    The emphasis, in the first ground, as reflected at [77] of these reasons is, no doubt, the source of the Minister’s observation that the appellant’s political opinions as a “member” of the OPC and as an “active spokesman and organiser” of the OPC had become a matter of primary emphasis in the application for review.

The supplementary statement of the appellant to which the Court was taken

80    In the appellant’s supplementary statement, he sought to address aspects of his earlier statement, particularly with a view to seeking to demonstrate that the views formed by the delegate (set out at [74] of these reasons) were not correct and that the Tribunal ought to have regard to the additional matters set out in the supplementary statement. In the supplementary statement, the appellant sets out the following matters.

81    The appellant states that the imprisonment and death of his brother “TG” was a very traumatic experience for him. The brother was jailed for three years in 2000 for his association with the OLF. The appellant was 20 years old at the time. He was not yet politically active but was aware of the OLF because his uncle had become an OLF fighter in 1998 and the uncle lived with the appellant’s family at the time. He states that Ethiopian security forces used to come to the house and conduct searches and this happened about three or four times while his uncle was with the family. The appellant used to visit his brother, “TG”, in jail at the Shambu prison centre in western Ethiopia about 70 kilometres away from the appellant’s home, approximately five or six times each year during the appellant’s University vacation. His brother would tell him how he had been mistreated and tortured. The appellant says that in 2002 his brother told him that he had been repeatedly kicked in the kidneys so badly that he was passing blood, and the authorities would not let him see a doctor to obtain an ultrasound. The appellant says that as he visited his brother over time, he could see his condition deteriorating. He was coughing constantly and had lost a lot of weight. He died on 23 September 2003 due to injuries, a lack of medical treatment and illnesses from the harsh conditions.

82    The appellant says this:

At paragraph 13 of my first statement I described the speech I made at my brother’s funeral on 24 September 2003. I was feeling desperately upset and angry about my brother’s death and the circumstances under which he died. I was emotional and I was traumatised. I talked from my heart about the things he had told me when I visited him in prison, and particularly about the mistreatment and torture he had suffered. It did not occur to me that there might be police spies at the funeral. At first I didn’t see any police. Later, while I was speaking, I caught a glimpse of some police but I assumed that they were there to mourn my brother as we had extended family who were members of the police force. In my highly distressed state at my brother’s funeral, I did not turn my mind to the possibility that they were police spies or to the possible consequences to me personally as I made my speech. I had no idea at the time of the extent to which the government infiltrates and spies on Oromo people.

[emphasis added]

83    As to these matters, the submissions from the solicitors says this:

The context that emerges from [the appellant’s] Supplementary Statement is that he was only 20 years old at the time of his brother’s funeral, that he was not yet politically active or especially knowledgeable in matters relating to persecution of Oromo people by the Ethiopian authorities, and that he was deeply affected by and highly emotional from the experience of having observed his brother’s mistreatment, lengthy decline and ultimate death in prison. In these circumstances, it is submitted that it is highly plausible – indeed probable – that [the appellant] would make an emotional speech at his brother’s funeral without thinking carefully about the potential political consequences.

84    In the supplementary statement, the appellant explains the circumstances leading to his joining the OPC. He says this. In 2006, he was employed by the Oromia Agricultural Research Institute (the “Institute”) a body controlled by the Oromia regional government. Membership of the OPDO was not a criterion of employment. At the Institute, the appellant became friends with someone who was a member of the OPC.

85    In 2008, the OPC held a conference. The appellant went along and read pamphlets distributed by the OPC and listened to the speakers. He became very interested in the organisation and its social and cultural objectives. In 2008, he became a member of the OPC, although he did not tell anyone. He felt that if he told people he was a member of the OPC he would lose his job and be denied other job opportunities. He pretended to be politically neutral and conveyed the impression that he was merely focused upon his career. However, by 2010 when studying at Haramaya University, he was no longer employed by the Institute and was prepared to “become more actively and publicly involved with the OPC” and prepared to “take more risk”.

86    In February 2010, the day after the OPC meeting that he had helped to organise, he was taken from his dormitory to the Harari police station, as described in the earlier statement. In the supplementary statement, he says this:

Spies from the police had known I was handing out pamphlets and talking to students. When the police interrogated me on my activities I admitted I was a member of the OPC, that I had been organising OPC meetings and handing out pamphlets to students. Membership of the OPC is not illegal, though membership of other Oromo organisations, like the OLF, is. The police tried to get me to admit I was a member of the OLF, but I was able to truthfully deny that. The police then asked me about the contents of the OPC meetings, and I told them what I knew. However, since it was not illegal to be a member of the OPC, the police could not charge me with anything. I was detained for five days, but since I did not give the police anything which they could charge me with, they eventually let me go.

The CASCAPE Project

87    In the earlier statement, the appellant describes an opportunity to become employed in the CASCAPE Project when the appellant was studying at Haramaya University. The project is run by Wageningen University in the Netherlands, and CASCAPE is an acronym for “Capacity-building for Scaling up of evidence-based best practices in Agriculture Production in Ethiopia”. The appellant was employed by CASCAPE in May 2011. The position occupied by the appellant was as an “agronomist/socioeconomist” according to the employment criteria for the job or role attached to the supplementary statement. The position description recites that the government of Ethiopia had recently adopted the “Growth and Transformation Plan” (“GTP”) for national development and the “joint donor-government Agricultural Growth Program” (“AGP”), within the context of the GTP and was focused upon the “sustainable increase of agricultural production”. The main aim of the program was to better understand the success factors for upscaling best practices in the agricultural sector through a research development approach. The document recites that within the CASCAPE Project, the Ministry of Agriculture, Haramaya University and others were working together on strengthening the agricultural sector in Ethiopia. The job description recites the following matters:

One of the components within this project is to perform on-ground research activities, i.e. farm surveys, monitoring, interviewing, experimentation with farmer groups etc at local (farm, kebele, woreda) levels. The coordinating organisations for this program [are five Universities including Haramaya University with technical support]. The task of the Innovators [the Universities] is to execute on-farm activities, provide agricultural, environment and [organisational] advice to farmers and Development Agents (DAs) in order to accelerate their development.

88    The terms of reference provide that under the supervision of the coordinator of the CASCAPE Project at each University, the Innovators will support local partners; give technical support; facilitate local meetings and workshops; design and conduct the analysis of documentation of the best practice; together with farmers’ organisations, innovate plans and assist in implementation; facilitate research; and evaluate and validate best practice and work in multidisciplinary teams.

The appellant’s request of the Tribunal to obtain oral evidence from witnesses

89    As to the hearing before the Tribunal on 8 March 2016, Mr Glass of Gilbert+Tobin returned the hearing form advising that he and the appellant would be attending the hearing and an interpreter would be required. In Part 3 of the form under the heading “Witnesses”, it says that the applicant may request the Tribunal to take oral evidence from a person or persons and if such a request is made, the Tribunal will consider the request carefully, but may decide it is not necessary to take oral evidence from a person nominated by the applicant. The form also says that unless the applicant advises otherwise, the Tribunal will assume that the applicant will make arrangements for any witness to be available to give evidence.

90    The appellant, in the form, requested the Tribunal Member to take oral evidence from the three witnesses mentioned earlier. As to Mr TA (see [76] of these reasons), he was described as a friend and work colleague who had an address in Ethiopia which could be “provided upon request”. The short description of the point of his evidence was this: “Corroborates evidence of OPC political activity and [detention] in 2010 and 2013”. As to Mr Etana, he was described as a “friend and brother’s brother-in-law” and his evidence was described this way: “Corroborates evidence of funeral speech and detention”. As to Arie van Kekem, he was described as the appellant’s employer at the CASCAPE Project. He was said to reside in the Netherlands and his telephone details could be provided on request and his evidence was described this way: “Evidence that political opinion is not taken into account in CASCAPE employment”. The form was signed by Mr Glass.

The statement of Mr TA to which the Court was taken

91    The statement of Mr TA was attached to the email from Mr Glass to the Tribunal of 29 February 2016.

92    In that statement, Mr TA says that his name is “T” and he lives in Addis Ababa, Ethiopia. He says that he first met the appellant in 2009 when they were both students at Haramaya University in Addis Ababa as post-graduate students. Mr TA was studying a Master’s degree in Agricultural Economics. He says that although they were not studying the same subjects, he used to see the appellant every day. They became good friends and lived in the same dormitory compound, although in different buildings. He says that he knew that the appellant was a member of the OPC and that the appellant was involved in the OPC’s activities on campus and used to help organise political campaigns and meetings. He says that students on the campus at that time broadly knew who the appellant was and that he used to “organise for the OPC”.

93    Mr TA also says this:

6    In 2010, [the appellant] disappeared for a few days. At first I did not know where he was but later I heard from friends that he had been arrested because of his activities with the OPC. When he returned he appeared to me like someone who had been mistreated. He looked tired and was very hungry. His clothes were torn. He told me he had been arrested and beaten.

7    I joined the CASCAPE program at around the same time as [the appellant]. I was employed as an agricultural economist. We remained friends, and in fact shared an office and worked as members of the same CASCAPE team. [The appellant] remained active with the OPC during this period.

8    In 2013, [the appellant] disappeared again. I did not know what had happened to him, but he was not [showing] up to work. I asked [the appellant’s] wife what had happened, and she told me that the police had come to their house, conducted a search, and took [the appellant] away.

9    After more than a week, [the appellant] returned to work. He told me he had been handcuffed, taken to a police station and detained. He said the police had accused him of being involved in anti-government activities while engaged in fieldwork with the farmers he was working with.

10    I am happy for the tribunal to contact me by telephone at a pre-arranged time to discuss the above matters. However, due to the fact that Ethiopian authorities sometimes monitor calls and other communications, I may need to be cautious about the level of detail I provide.

94    The form has, in freehand, the word “Regards” and an apparent signature.

The statement of Arie van Kekem to which the Court was taken

95    As to the statement of Arie van Kekem, he provides background information about his work as a Soil Scientist and Project Leader between 1980 and 2015, often in development projects in Africa. He says he is retired. From 1989 to 2015, he was employed as Project Leader of a research institute associated with Wageningen University and the focus of the research related to sustainable use of land in rural areas. The CASCAPE Project was launched in 2010 as a joint effort by Ethiopia and the Netherlands to improve agricultural productivity in Ethiopia. From the end of 2010 to the end of 2014, he was the Project Manager of CASCAPE. CASCAPE, although not an independent legal entity, employed staff in Ethiopia through partner universities in the Project. Staff members were allocated to innovation teams and those teams would work closely with farmers to raise agricultural production in a sustainable way. Between 2010 and 2015, he visited Haramaya University to interview candidates. He does not specifically remember an interview with the appellant although the appellant’s name “rings a bell” and his notes tell him that he talked to him on 24 June 2011.

96    Mr van Kekem recalls that the appellant may have received a scholarship to study in Australia. He says that the employment of candidates was based on professional skills and experience, personal attitude to the job and an ability to speak or understand the local language. He says that in employing staff, no regard was had to political or ethnic considerations and, as far as he knows, the government of Ethiopia did not have any influence in who could be employed for the CASCAPE Project. He says that he is “happy for the Australian immigration authorities to contact me by telephone at a pre-arranged time to discuss the above matters”.

The statement of Mr Etana to which the Court was taken

97    As to the statement of Mr Etana, he says that he was born in Welega Province in Ethiopia on 17 September 1990. He came to Australia in December 2008. As to his background, Mr Etana says that he comes from a politically active Oromo family. Both his parents were members of the OLF and his father was a supporter of former President Mengistu Haile Mariam. He says that after the EPRDF came to power in 1991, his father was arrested and jailed for having supported the former President. Due to his father’s political affiliations both with the former President and the OLF, his family was persecuted by the police. He says that he recalls several occasions when the police came to “and raided” the family house. His father died in early 2003. After the death of his father, his mother decided to join his sister and her husband in Australia in order to escape the political problems she faced living in Ethiopia. Mr Etana’s mother arrived in Australia in late 2003 having obtained a protection visa. He says that in or around 2008, his brother, an OLF supporter, fled Ethiopia. His whereabouts are unknown. He says that in July or August 2008 he was arrested and locked up by the police and interrogated as to the whereabouts of his brother. He told the police that he did not know where his brother was. He describes the circumstances of escaping from the prison where he was held. Upon his escape, he decided to run away and join his mother and sister in Australia.

98    As to his knowledge of the appellant, Mr Etana says that he has known the appellant since he (Mr Etana) was a child. He says that his family and the appellant’s family had lived in Welega Province in Ethiopia before his family moved to Addis Ababa. He says that his parents and the appellant’s parents were friends. He says that he and the appellant have a familial connection as one of the appellant’s brothers is married to Mr Etana’s sister. He says that the appellant is about five or six years older than him and although they were not close friends due to the age difference, he has known the appellant since Mr Etana was a child. He also says these things in his statement (inserting the terms “the appellant” and “TG”):

14.    In September 2003, the appellant’s brother, TG, died in prison. Our family had already moved to Addis Ababa by this time. My mother decided to attend TG’s funeral to console and comfort the appellant’s family.

15.    This happened when I was around 14 years old. I was still in school, but I remember that I was on school holidays at the time.

16.    When my mother returned from the funeral, she told me she had gone to attend TG’s funeral and told me he had been killed in prison. She said that when TG was taken to prison, he was young, fit and healthy so something must have happened to him in prison. She told me that at TG’s funeral, the appellant had made a speech about his brother and why he had died. She said that the appellant was angry and emotional during the speech. After the funeral, the family (including the appellant and my mother) went back to TG’s house. The police then arrived at TG’s house and my mother saw the police arrest the appellant and take him away.

17.    In December 2003, a few months after attending TG’s funeral, my mother left Ethiopia for Australia.

18.    By 2010, I was living in Australia. From time to time I call my friends and family in Ethiopia, particularly during festive seasons such as Christmas and Easter, just to say hello and to hear the news from back home.

19.    On one of those calls, I was talking with a friend living in Ethiopia and was asking general questions about people we knew and what had been happening. My friend told me that the appellant was studying a masters degree in the Haramaya region, and had been arrested. My friend said he didn’t know why the appellant had been arrested, but said that maybe they will kill him because he was a supporter of the Oromo Peoples’ Congress (OPC).

20.    I did not hear anything further about this incident.

21.    In 2013, during another of those calls back home, this time to a different friend, I was told that the appellant had been arrested again and no one knew where he was.

22.    This was the last thing I heard about the appellant until he arrived in Australia and contacted me.

The statement of Merera Gudina to which the Court was taken

99    Another statement put before the Tribunal is a statement of “Merera Gudina (PhD)” which is signed and dated 25 November 2014. I will describe the witness as Dr Gudina.

100    Dr Gudina describes himself as Associate Professor of Political Science and International Relations (perhaps this includes Dr Gudina’s teaching role at Addis Ababa University referred to in the Tribunal’s reasons); Chairman, Oromo Federalist Congress (“OFC”); Vice-Chairman & Head of Foreign Affairs, Ethiopian Federal Democratic Unity Forum (“MEDREK”). Dr Gudina states that he was the founder and Chairman of the OFC. He states that the appellant became “our member” in 2008 and continued “his association with us” after he joined Haramaya University in 2009 “where he served our party by conducting various committees”. Dr Gudina expresses the opinion that “as the Ethiopian situation has continued to deteriorate and as our members and supporters, especially young members like [the appellant] are being targeted, I believe that if he returns to Ethiopia, his life will be in grave danger”.

101    The provision of Dr Gudina’s statement to the Tribunal by Gilbert+Tobin (Mr Glass) gave rise to controversy.

102    In an email to the Tribunal of 9 March 2016, Mr Glass said this: “I … attach PDF copies of the OPC documents referred to at the hearing yesterday”. The reference to the “OPC documents” included Dr Gudina’s statement and another document (being the appellant’s OPC membership card). The Tribunal at 144, having made observations about the “membership document”, said, in relation to Dr Gudina’s statement, that “it was not clear to the Tribunal at the hearing that it was even being claimed that such a statement from an OPC representative existed”.

103    The Tribunal observed that the Gilbert+Tobin post-hearing submissions suggested that it was the “letter” (which is a reference to the Gudina’s statement which is in letter format addressed “To Whom it May Concern”) from the OFC that was “provided to us by [the appellant] when we were first engaged by him in early 2015 but was, by reason of oversight on our part, omitted from the material we provided with our submissions dated 29 February 2016”. The Tribunal’s reference to post-hearing submissions, is a reference to the submissions of Mr Glass of 5 April 2016. In those submissions, Mr Glass (as the Tribunal notes) observes that the appellant had provided the Gudina letter/statement to Gilbert+Tobin in early 2015. Mr Glass acknowledges that not providing it in the submissions of 29 February 2016 was an oversight on his part and observed, in the submissions, that “no adverse inference can be drawn against [the appellant] in relation to this oversight, which was entirely ours”.

104    In addressing the matter of the membership card and the Gudina statement/letter, the Tribunal said this at 144:

Those post-hearing submissions do not clearly indicate that the applicant provided a membership card at that time and instead provide another explanation as to why the card had not been provided at an earlier time. A detailed submission with attachments was made on 29 February 2016. Those attachments were listed in the submission and in a covering e-mail to the submission. The Tribunal was provided at the hearing with an indexed folder containing documents relevant to the case including the submission of 29 February 2016, the attachments to the submission, the primary decision, the review application and the response to hearing invitation. These materials do not refer to a membership card or a letter from an OPC official. No satisfactory explanation has been offered as to why a document relating to membership would have been omitted from such extensive and detailed submissions. It remains of some concern to the Tribunal that the membership documents were not produced to the Tribunal until after the hearing.

[emphasis added]

105    Returning to the membership card specifically (although not entirely independently of the very question of membership of the OPC), the Tribunal said this at 145:

With regard to the membership card, the Tribunal does not accept that there is any satisfactory explanation as to why, if the applicant had a genuine MDC membership card issued in 2008, he failed to produce this until after the Tribunal hearing. The Tribunal accepts that a person might not wish to travel with such a document in their luggage. However, the applicant has claimed that he asked for the card to be sent and received it prior to the primary decision. That he might not have wished to depart with the card does not explain why, if such a card existed, it would not be provided until so late in the process. The applicant’s representative suggested at the hearing that the primary claim was imputed support for the OLF so it might have been thought that the OPC membership card was of secondary interest. The Tribunal simply does not accept this. The applicant’s claims at the hearing suggested that his membership of the OPC was a very significant matter that put his life at risk. As discussed above, the applicant made no claim in his protection visa application about being a member of the OPC or being involved in the party. He raised this claim in a written statement some four months after the initial application. Subsequent to the hearing he has produced a membership card. The Tribunal does not accept that there is any satisfactory explanation as to why he did not make any mention of his OPC membership or involvement in his application. It does not accept that there is any satisfactory explanation as to why, if he had a genuine OPC membership card issued in 2008, this was not submitted until after the Tribunal hearing. In all the circumstances, the Tribunal does not accept that the card is a genuine document reflecting membership in the party by the applicant from 2008.

[emphasis added]

106    As mentioned, Mr Glass lodged post-hearing submissions with the Tribunal by letter dated 5 April 2016 enclosing further evidence that “we have so far been able to obtain”, observing that further evidence and supplementary submissions might also be put to the Tribunal.

107    The supplementary material was put to the Tribunal to support aspects of the claims made by the appellant and also to address a concern articulated by the Tribunal at the hearing that the Tribunal had received an anonymous “dob-in letter” which asserted that the claims of the appellant were untrue and contrived.

108    The further evidence consisted of the following material:

    second supplementary statement of the appellant;

    statement of Mr Regassa Oljira dated 31 March 2016;

    statement of Mr Berhanu Nono dated 3 April 2016;

    unsigned statement of Ms Jife Akasa dated 4 April 2016;

    unsigned statement of Mr Bikila Diga dated 5 April 2016.

109    The Gilbert+Tobin letter observes that neither Ms Akasa nor Mr Diga had access to a printer and scanner but notwithstanding that, the unsigned statements were put forward “as representing their evidence”.

110    The second supplementary statement of the appellant seeks to specifically deal with matters put to the appellant by the Tribunal arising out of the “dob-in” letter.

The statement of Mr Oljira to which the Court was taken

111    As to the statement of Mr Oljira, he says that he lives in Minneapolis in the United States (“US”). He was born in 1968 in Welega, Ethiopia. He says that he knows the appellant and the appellant’s deceased brother, “TG”, “because we are members of the same extended family, although I am considerably older than both of them”. Mr Oljira moved to the United States around 1997. He says that although he lives in the US, he keeps in regular contact with family and friends in Ethiopia. He says that as he cannot return to Ethiopia due to his political activism in support of the Oromo people, “I take a keen interest in what is happening in Oromia and I actively seek out detailed information from contacts in Ethiopia”. He says this in his statement (inserting references to “the appellant” and “TG”):

7    A few years after I came to the United States, I heard during one of my telephone calls to Ethiopia that TG had been imprisoned because he was believed to be a political activist in support of the Oromo people.

8    In 2003, in calls with my family and friends in Ethiopia, I heard that TG had been killed in jail by government security forces.

112    Mr Oljira says that he is happy to discuss any of the matters in his statement with the Tribunal and has authorised the appellant’s solicitors to provide the Tribunal with the relevant details.

The statement of Mr Nono to which the Court was taken

113    As to the statement of Mr Nono, he says that he lives in Alberta, Canada. He was born in Amuru, Ethiopia on 26 April 1978. He says (inserting the terms “the appellant” and “TG”) this:

4    I know the appellant, his deceased brother TG and their family because we had lived in the same town, Amuru, in Ethiopia. I attended the same school as the appellant and TG and I was in the same year as TG in school. Although I was not close friends with TG, I would see him at school and sometimes we would play and talk together.

5    TG was arrested and imprisoned while I was still living in Ethiopia. I heard of his imprisonment through the small local community – either through family or friends. Many people in the community were speaking about it. Although I cannot recall exactly when TG was imprisoned, I believe he was at most aged in his early twenties when this happened.

6    People said that TG was arrested because of his political activities. Although I do not personally know whether TG had links to or was a member of the OLF, I know that a lot of people in Ethiopia are jailed and tortured as a result of being OLF supporters.

7    I visited TG in prison a couple of times. I mainly recall one of these visits, at Shambu prison in around 2002. He looked like he had suffered a lot – he was unhappy, had lost weight, appeared to be in poor health. He told me he had been beaten by the police while they interrogated him about whether he knew people working for the OLF. He said they tried to get information from him by beating him.

8    TG passed away in 2003. I was living some distance away from Amuru at the time. I travelled to Amuru for TG’s funeral but by the time I arrived it was nearly over. There were probably more than 200 people at the funeral. My family, who were also at the funeral, told me that a member of the family, I think the appellant, had made a speech about TG’s history, about the fact that he was jailed, how he suffered and died. They said he was crying during his speech. I travelled home after the funeral.

9    I later heard from friends in the community that the appellant had been in trouble from government security forces and that he had been jailed.

114    Mr Nono says in his statement that he is happy to provide information to the Tribunal about these matters in connection with the appellant’s application for a protection visa.

The statement of Mr Diga to which the Court was taken

115    As to the statement of Mr Diga, he says that he lives in Minneapolis in the United States. He was born on 4 October 1981 in Amuru, Ethiopia. He says this (inserting the terms “the appellant” and “TG”):

4    I knew the appellant and his deceased brother TG because we grew up in the same town, Amuru, in Ethiopia. I also attended the same school as the appellant and TG. TG and I were one year apart at school.

5    In 2000, I left Ethiopia and fled to Kenya. I hardly had any contact with my family while I was in Kenya, so I did not hear about TG’s imprisonment at that time.

6    In April 2003, I left Kenya and moved to Canada.

7    After moving to Canada, I used to have telephone calls with my family in Ethiopia from time to time. I heard from my parents during one of these calls that TG had been tortured by government security forces and had died in Shambu prison.

8    In 2010, I returned to Ethiopia for a visit and met the appellant in Addis Ababa. The appellant was attending Haramaya University at the time. The appellant told me that he was involved in organising students to support Oromo rights and freedom in Ethiopia. He told me he had been arrested and imprisoned and that he did not have any freedom or future in Ethiopia. I told him I had experienced the same issues in Ethiopia and that was why I had left. I encouraged him to leave too if he was unsafe.

9    After the appellant came to Australia, he contacted me by telephone and told me he had been involved in the OPC. I believe he did not tell me this at our meeting in Addis Ababa because he had feared for his safety.

10    In 2015, I moved from Canada to the US.

116    Mr Diga also said that he was willing to be contacted by telephone by Australian immigration authorities (including the Tribunal) to discuss any of the matters in his statement and that telephone contact details had been given to the appellant’s solicitors.

The statement of Ms Akasa to which the Court was taken

117    As to the statement of Ms Akasa, she too lives in Minneapolis in the United States. She was born on 12 February 1980 in Amuru, Ethiopia. She says this (inserting the terms “the appellant” and “TG”):

4    I know the appellant and his deceased brother TG because we grew up in the same town, Amuru, in Ethiopia. I also attended the same school as the appellant and TG.

5    I left Ethiopia and moved to the US in 2006.

6    While I was still living in Ethiopia, I remember my mother telling me that TG had died in jail. She told me he had been jailed for his political activities and had suffered badly in jail.

7    Around that time, I also heard from my parents that the appellant was jailed because he was suspected of being involved in his brother’s political activities.

118    Ms Akasa was also happy to speak with the Tribunal about aspects of her statement and had provided telephone contact details to the appellant’s solicitors.

The statement of Amenu Jena to which the Court was taken

119    A statement was also provided by Amenu Jena who was born on 12 April 1956 in Amuru, Ethiopia. Amenu Jena lives in Toronto, Canada and says this (inserting the terms “the appellant” and “TG”):

4    I know the appellant and his deceased brother TG because I am friends with their father and we lived in the same district in Ethiopia, in Amuru.

5    I left Ethiopia in 1976 to attend University in Europe. I then moved to Canada in 1983.

6    In 1992, I returned to Ethiopia for the first time since I left for overseas. On this visit, I remember I met TG but I do not remember meeting the appellant.

7    In 2008, I went back to Ethiopia for another visit. On this visit, I met with the appellant’s father briefly. He told me the government had arrested TG for political reasons and that TG died in prison in 2003. He also told me TG was mistreated and beaten in prison. He said the police were constantly watching his house and his family.

120    Amenu Jena was also willing to talk to the Tribunal about any of the above matters by telephone and had provided contact details to the appellant’s solicitors.

The statement of the appellant’s brother, GG, to which the Court was taken

121    The Tribunal was also provided with a statement by the appellant’s brother “GG”. Since April 2014, GG has lived in the Netherlands, having been accepted by that country for resettlement. GG makes the following statement (inserting the terms “the appellant” and “TG”):

3    I was born in 1984 in Amuru, Ethiopia. I am a younger brother to both the appellant and TG.

4    In 2000 when I was about 15 or 16 years of age, TG was sent to prison in Shambu because of his supposed connections to the Oromo Liberation Front (OLF). I did not see TG’s arrest myself – he was at home with his wife and children and I was living with my parents at the time – but I knew, from my parents and other members of my family, including the appellant, that he had been taken away and sent to prison. The appellant also used to visit TG in jail from time to time and he would tell me about those visits.

5    TG was not the only member of our family to be accused of being connected with the OLF. My uncle (my mother’s brother) also had OLF connections. The police used to question him from time to time. In 1988 he became [a] member of [the] OLF fighters and never came back home since then. I was never a member of the OLF myself, though I did know about the OLF’s fight for the rights of the Oromo people and I was supportive of that.

6    I used to get questioned by the police quite often. They took me to the local police station on about four or five occasions. They would ask me questions about my uncle and his involvement with the OLF and they also wanted to know where he was. They would also ask me questions about TG and what I knew of the OLF. I didn’t really know any details about my uncle’s or TG’s involvement with the OLF, so I wasn’t able to tell them anything.

7    In September 2003, when I was approximately 18 years old, TG died while he was in prison. With the rest of my family, I attended TG’s funeral. The appellant made a funeral speech on behalf of the family. He made remarks about how TG had been badly treated in prison and that he had died from his mistreatment. He commented about the fact that TG had been denied proper medical attention.

8    Unfortunately, there were a couple of policemen at the funeral. We had thought they were there to share in our grief. It turned out that they were police informants, but this did not cross our minds at the time.

9    After the funeral, I with the rest of the family went back to the house where TG had lived with his wife and children. While we were there, the police came and took the appellant away to the police station to be interrogated.

10    This was now the third time on which I had experienced a member of our family being persecuted by the police – first my uncle, then TG and now the appellant. I myself had been questioned by the police on a number of occasions, though I had never been detained for any length of time. I feared I may now be the next member of my family to be picked up by the police, and I suddenly became very concerned about my own safety. I decided not to go home after seeing the appellant taken away by the police, and so I spent a couple of weeks in the country-side rather than in our home town. While I was away, a friend of mine called to tell me that the police had come around to my parents’ home to look for me. When I heard this news I decided that I needed to escape from Ethiopia.

122    At paras 11, 12, 13 and 14 of the statement, GG explains the steps he took to reach the southern border with Kenya; other Oromo people he met in Kenya; his period at a UNHCR camp at Kakuma; his 10 years in that camp; and a teaching course he took in the camp. He says that he did not have any contact with his family in Ethiopia or in Australia during this period. In March or April 2014, he was accepted for resettlement in the Netherlands, where he has lived ever since. At para 17 he says this:

Since arriving in the Netherlands, I have re-established contact with my family. I call my family in Ethiopia from time to time, although it is very difficult and I need to be careful not to get them into trouble so I cannot speak to them very often. It is easier to speak to the appellant because he and I are both now living in free countries. I spoke to the appellant, for the first time since leaving Ethiopia in 2003, after I arrived in the Netherlands in 2014. Now I speak with him regularly, about [once] a fortnight or so.

123    The appellant’s brother was also willing to speak with the Tribunal about any aspects of his statement and for that purpose, had provided the appellant’s solicitors with his telephone contact details.

The statement of Mr Below to which the Court was taken

124    The Tribunal was also provided with a statement dated 9 April 2016 by Hundera Below who currently lives in Alberta, Canada. Mr Below says this (inserting the terms “the appellant” and “TG”):

3    I was born on 10 June 1978 in Shambu, Ethiopia.

4    I know the appellant, his deceased brother TG and their family because we lived in the same town, Amuru, in Ethiopia. I also attended the same school as the appellant and TG.

5    In around 1999 or 2000, TG was arrested by government security forces and imprisoned. I know this because I was still in Ethiopia at the time of TG’s arrest, and I had heard what had happened from members of my family and from other people within the community. What I heard was that TG was arrested because the government accused him of supporting the OLF. TG was imprisoned for some years.

6    Due to [my own safety concerns] as a result of my political activities, I left Ethiopia and fled to Kenya in March 2001. I stayed at a UNHCR refugee camp in Kenya for about 9 years, before I was sponsored by the Canadian government to settle in Canada in 2009.

7    When TG died in 2003, I was still in Kenya. I used to call my family in Ethiopia from the UNHCR camp from time to time. During one of these calls my parents told me about TG’s death. They said they had heard from TG’s family that TG had been mistreated in prison and had died there. My parents attended TG’s funeral, and they told me that TG’s family had taken TG’s body from the jail to the funeral.

…

125    Mr Below was also willing to talk to the Tribunal about any aspects of his statement and had provided the appellant’s solicitors with telephone contact details for that purpose.

The statement of Geleta Gudeta to which the Court was taken

126    A statement dated 20 April 2016 by Geleta Gudeta (which I assume is Ms Gudeta) was provided to the Tribunal. Ms Gudeta now lives in Alberta, Canada. Ms Gudeta was born on 1 January 1977 in Gida Ayana District, East Welegga Zone, Oromia, Ethiopia, but grew up in Amuru. Ms Gudeta says this (inserting the terms “the appellant” and “TG”):

4    I know the appellant and his deceased brother TG because we grew up in the same district in Ethiopia, in Amuru. I also attended the same high school as the appellant and we are roughly [the same] age.

5    In 2003, I was living away from my hometown, and I used to go back to visit my family from time to time. On one of these visits, my brother told me TG had died in Shambu prison. My brother told me my family had gone to TG’s funeral, and that members of TG’s family had made speeches at the funeral about how TG was killed. He said they had accused government security forces of torturing TG to death.

6    During this visit I also heard, either from my family or from others within the community, that the appellant had been accused of being anti-government and had been arrested because of what he had been saying about TG’s death in jail. I also heard after the funeral that the appellant’s family had been accused of provoking feelings against the government.

7    In Ethiopia, once an Oromo family is suspected by police or security forces of being associated with the OLF, they are constantly harassed by the government. The appellant’s family was known to me, and known generally in our community, to be one of those families that faced constant harassment by the Ethiopian government. The appellant’s family, including his brothers and cousins, were suspected of being OLF supporters.

8    In 2005, I left Ethiopia and was [a] refugee in Kenya for 6 years [before going] to Canada in 2011.

The findings and reasoning of the Tribunal

127    At 90 (all references to the Tribunal’s observations are references to paragraphs of its reasons), the Tribunal notes aspects of the appellant’s claims. It notes the appellant’s claims of the imprisonment of TG, the appellant’s visits to his brother, his brother’s suffering and deterioration. It notes the appellant’s view that suspicion came upon the family due to his maternal uncle’s active support of the OLF. It notes the appellant’s evidence of claims of countless searches of the family home by “government soldiers and local authorities”. It notes the appellant’s evidence of having seen such searches followed the arrest of his parents on four or five occasions.

128    As to TG, the Tribunal notes that the appellant “indicated” that TG was around 30 years old when he was detained in 2000.

129    At 91, the Tribunal notes aspects of the appellant’s evidence concerning the speech he gave at TG’s funeral.

130    The Tribunal notes the appellant’s evidence that GG was “suspected of being OLF” and suspected of having links with the secret representative of the OLF in the Amuru district. It notes the appellant’s claims of harassment of his father and family due to GG’s disappearance.

131    At 92, the Tribunal notes the appellant’s claims of difficulties he experienced while working at Alage ATVET College, the OPDO meeting at the College and the threats made to him when the appellant refused to join the OPDO. It notes the appellant’s claims of discrimination when it came to further study and wage reviews. The Tribunal notes the appellant’s claims that if a person refuses to join the OPDO, the person is thought to be an OLF member or supporter. Many of the matters at [57] to [61] of these reasons are noted at 92.

132    At 93, the Tribunal notes the appellant’s claims to have joined the OPC in 2008 and to have engaged in public activity for the OPC from around 2009, and his detention in 2010 at the time of the elections.

133    At 94, the Tribunal notes the appellant’s evidence concerning his education: 94 is quoted at [9] of these reasons.

134    At 95, the Tribunal sets out its first short statement of its view or conclusions about the appellant’s claims (for the reasons it then discusses) in these terms:

[T]he Tribunal considers that the applicant’s evidence about the difficulties he experienced in Ethiopia is lacking in credibility in a number of regards. It finds aspects of the evidence to be at odds with independent evidence about the treatment of people suspected of involvement in organisations such as the OLF. There are other aspects of his evidence which further undermine the credibility of his claims.

[emphasis added]

135    As to the “independent information” said to be at odds with aspects of the appellant’s evidence (and claims), the Tribunal notes that such information indicates that people associated with the OLF (or members) and especially those who have expressed dissent, are “harshly treated”. Moreover, information in relation to people accused of being members of the OLF suggests to the Tribunal that such people (and their families) are intimidated “for considerable periods of time”.

136    The Tribunal cites a 2005 Human Rights Watch report (Suppressing Dissent: Human Rights Abuses and Political Repression in Ethiopia’s Oromia Region, May 2005, Vol 17, No. 7) which refers to “thousands of Oromo on charges of plotting armed insurrection on behalf of the OLF”, and the use of arbitrary detention against those accused of supporting or being members of the OLF. The Tribunal observes that the report says that in many cases police officials “follow, harass and intimidate former detainees and their families for years after their release”.

137    The Tribunal cites another report (US Department of State: Country Report on Human Rights Practices 2002 – Ethiopia, 31 March) which indicated to the Tribunal that the government of Ethiopia continues to arrest and detain persons arbitrarily, especially if persons are members, or thought to be sympathisers of, the OLF.

138    The Tribunal cites a further report (International Crisis Group 2009, Ethiopia: Ethnic Federalism and Its Discontents, Crisis Group Africa Report No. 153, 4 September 2009) (the “ICG 2009 Report”) which indicates that the treatment of those associated with, or accused of being associated with, the OLF was “particularly harsh”.

139    The Tribunal also refers to advice from the Department of Foreign Affairs and Trade (“DFAT”) dated 31 January 2003 which concerns Country Information Report No. 24/03 – Ethiopia: Oromo Ethnic Group, which indicated to the Tribunal that, “if a person is believed by the authorities to be associated with the OLF, that person’s family members often also fall under suspicion of being associated with the OLF and that harassment of family members can continue after the death of the first family member suspected of association with the OLF”.

140    The Tribunal also notes that information drawn from these reports is consistent with a United Kingdom Home Office Operational Guidance Notice: (Ethiopia), November 2013, which states that, “if it is accepted that a claimant has been involved in or is suspected of membership or sympathising with the OLF or the ONLF and has previously come to the adverse attention of the authorities, then they are likely to be at risk of persecution and a grant of asylum will be appropriate”.

141    The Tribunal cites the ICG 2009 Report (and a document described as “Berteismann Stiftung’s Transformation Index 2014, Ethiopia”), which “suggests that the civil service is highly politicised, that tertiary employment is closely linked with membership of the EPRDF, and that employment in a public sector job is associated with being a member of or close to the ruling party”.

142    The Tribunal also cites another US Department of State Report (Country Report on Human Rights Practices 2012 – Ethiopia) (the “US 2012 Report”), which reports that teachers and other government workers have had their employment terminated if they belonged to opposition parties.

143    The Tribunal also notes, however, that the same report indicates that “at the University level, members of Medrek and its constituent parties were able to teach”.

144    As to State-sponsored education, the Tribunal cites the ICG 2009 Report as indicating that selection for State-sponsored education also requires the person to be a member of, or close to, the ruling party. The Tribunal also cites the US 2012 Report as indicating that the ruling party gives preference to students loyal to the EPRDF in allocations to post-graduate programs. The Tribunal also cites a document (Haileselassie, A, 2009 Ethiopia: Writing its Own Obituary?, Daily Monitor, 25 August (2009)) which the Tribunal noted contains this information:

One thing the [EPRDF] has said openly: not everyone can study for a master’s degree at government universities without its goodwill. This is bolstered by the recruiters who go around telling students, “let alone a second degree, you will not even find a job unless you are a member”.

145    The point of all these references, as the expression of the Tribunal’s observation at 95 quoted earlier (at [134] of these reasons), is the further observation at 100 that the independent information available to the Tribunal:

… does not appear to sit comfortably with the applicant’s ability to obtain a higher degree and maintain public sector employment over a lengthy period in spite of his claimed difficulties, including suspicions of OLF links and difficulties associated with involvement in the OPC.

146    The Tribunal observes that it put its concerns on that issue to the appellant and “carefully considered all of the evidence and the submissions”.

147    The Tribunal’s concern was this: how could a person asserting the factual claims he makes as a basis for a well-founded fear of persecution or a real risk of significant harm, having regard particularly to suspected support for the OLF by reason of family association with the OLF through the appellant’s maternal uncle, and actual engagement with the OPC from 2008, have overcome the attitude and conduct of government authorities towards a person exhibiting those features, reflected in independent country information, so as to have had the achievements reflected in the appellant’s education and employment career in Ethiopia?

148    Plainly enough, the Tribunal was unable to reconcile the independent country information concerning the treatment by government authorities of persons suspected of association with the OLF and membership of the OPC on the one hand, and the appellant’s achievements in education and employment in Ethiopia on the other hand, other than on the basis that the appellant’s claims must be implausible and the appellant’s evidence is “lacking in credibility”. This was so notwithstanding the matter noted at [143] of these reasons.

149    Accordingly, the analytical approach adopted by the Tribunal was to test the evidence relating specifically to the appellant by testing the evidence of the appellant, other evidence provided to the Tribunal by the appellant and the submissions of the appellant by Mr Glass on matters of fact and law, against the background of the anomaly apparent to the Tribunal and of concern to it, of the appellant having achieved as he did in terms of his education and employment whilst having suffered at the hands of government authorities as claimed.

150    In other words, the benchmark or yardstick by which the actual evidence relevant to the appellant would be judged would be whether the Tribunal could reach a statutory state of satisfaction in discharging its “overarching duty” of review under s 414 of the Act, that the appellant’s evidence overcomes the anomaly apparent to the Tribunal in the appellant’s achievements in his education and employment on the one hand, and the treatment by government authorities of a person suffering the disabilities claimed by the appellant as the foundation for a well-founded fear of persecution, on the other hand.

151    How did the Tribunal deal with the actual evidence?

152    At 102, the Tribunal notes the appellant’s claims concerning TG’s death in 2003 and the appellant’s detention and the accusation of having links with the OLF. It notes the appellant’s evidence of GG fleeing to Kenya in October 2003 and the subsequent detention of family members. The Tribunal notes that it put to the appellant that it was “exactly around this time” that he himself obtained a job as an instructor at the College (October 2003), and that the College was established under the Ministry of Agricultural Technical Vocational Education. The Tribunal put to the appellant that it might have difficulty accepting that he was able to obtain such a job in 2003 around the time that he claimed the events described above were occurring. The Tribunal also noted that the appellant was able to sustain the job at the College until 2006. The Tribunal put to the appellant that people, who were suspected of membership of the OLF were harassed and intimidated by the police and so too were their family members for considerable periods of time.

153    The explanation given by the appellant was put this way at 102:

The applicant stated that first of all he got the qualifications and graduated in July. In August he got this job. He said there were over 25 institutions. One of them was where he was given the job. He said at the time there were only 23 of them who graduated. The scope of the recruitment for people with his skills was high and they could not get enough staff. At the time he was not involved with any politics personally and he was not there when his family were arrested.

154    The Tribunal put to the appellant that the public sector in Ethiopia was highly politicised and that people might be appointed on the basis of their membership of the ruling party. Again, the Tribunal put to the appellant that it might have difficulty accepting that he was able to obtain that job in 2003 as claimed. The appellant gave this explanation to the Tribunal at 102:

The applicant stated that what the Tribunal was saying was correct but not the way the Tribunal was putting it. If you were a university graduate and there was demand for the qualification, when it came to hiring[,] you would apply for it and go through the procedures and get a job. But after that time there was discrimination. People were separated into party supporters. That was where the discrimination came in. Regardless of what efforts you put in, someone doing less and who had the same qualification could be your boss because of links to the political party. When it came to professional development, the others might be sent and get paid but you would not get a lot of opportunity because you were not one of them. They would keep you because they needed you but the treatment and discrimination of the workplace would continue. You would never become a manager there but you would still work but with the prospect of not getting anywhere. If you were arrested, the employment would still continue.

155    At 103, the Tribunal put to the appellant that the Ministry of Education gave preference to students loyal to the EPRDF in allocating post-graduate programs and that not everyone could study in such programs at a government university without the goodwill of the EPRDF. The Tribunal put to the appellant that it might have some doubts about how he was able to enter the master’s program if he was thought to be associated with the OLF and if he was a member of the OPC. The appellant’s explanation was this at 103:

The applicant stated that he left his other job and when he applied for this university in Haramaya there was no political requirement. He was hiding his membership. They did not know about it. As far as he knew, if you were able to pay for your studies and accommodation then you did not need to be a member of a political party to complete your studies there. If he had wanted financial support from the government, he would have been dependent on the government to pay for everything. That was when you would need to become a member.

156    At 104 and 105, the Tribunal addresses aspects of the appellant’s submissions to the effect that a number of highly prominent Oromo political activists have had successful academic and professional careers and have been permitted to travel abroad before ultimately being arrested and subjected to torture.

157    One example concerned the case of Bekele Gerba who had been dismissed from employment with the Adama Teachers’ College in 2005 due to being suspected of having participated in a student riot in 2004, but yet Mr Gerba had been able to return to Addis Ababa where he had taught at two private universities before becoming employed by Addis Ababa University as an English teacher. The Tribunal notes that Mr Gerba stood as a candidate for an opposition party in 2010, attended meetings with an Amnesty International delegation, and had later been arrested for suspected support for the OLF. He was released in May 2015 and although a prominent opponent of the regime, Mr Gerba had been permitted to travel abroad (after his release from prison), visit Washington DC in August 2015 and meet with State Department officials. Mr Gerba was re-arrested on his return to Ethiopia and taken to the “notorious Maekaiawi Prison”.

158    The submissions also emphasise the case of “Merera Gudina”. This is a reference to Dr Gudina, mentioned earlier. Dr Gudina was politically active at Addis Ababa University which “landed him in prison for seven years without charge”. However, despite his leadership position in an organisation in opposition to the government, he held a position as an Associate Professor of Political Science at Addis Ababa University until December 2015 when he was removed from that role.

159    As to Mr Gerba, the Tribunal notes that Mr Gerba was arrested and subsequently convicted and imprisoned for association with the banned OLF. The Tribunal notes that when Mr Gerba was jailed, his wife lost her job as a high school teacher. He had earlier been dismissed from his post as a teacher at the Adama Teachers’ College in 2005. The Tribunal notes that it may be that Mr Gerba was able to teach at two private universities and then be employed as a lecturer at the University of Addis Ababa from 2007 even though he had earlier been dismissed from the Adama Teachers’ College in 2005. Nevertheless, suspected association with the OLF led to Mr Gerba’s imprisonment and subsequent re-arrest in 2015.

160    The Tribunal considered at 105 that this background concerning Mr Gerba “is very much at odds with the applicant’s employment and educational history in the wake of being suspected of involvement in the OLF in 2003”.

161    The Tribunal also notes that the information concerning Mr Gerba and the circumstance that Dr Gudina was dismissed from his lecturing position in 2015 is “not inconsistent with information such as that from the US Department of State which indicates that, at university level, members of parties such as Medrek were able to teach”, because in each case each man did lose their job and suffered imprisonment as a result of being associated with the OLF or because they took a stand in support of opposition parties against the ruling party. The Tribunal observed that notwithstanding the recognition in the US Department of State Report that at university level members of parties such as Medrek were able to teach, the report also refers to the dismissal of “other government workers, including teachers in other contexts, and indicates that both public sector employment and access to postgraduate opportunities are highly politicised”.

162    At 106, the Tribunal notes that the appellant claimed that he and other members of his family had been suspected of involvement with the OLF as early as 2003 which ultimately led to the harassment of his family on four or five occasions, the detention of TG and the flight of GG from Ethiopia to Kenya resulting in continued harassment of the family including the events mentioned earlier in December 2003 after GG fled to Kenya. In that context, the Tribunal observes that the appellant’s evidence was that at this time (October 2003 to December 2003) the appellant was able to obtain work at the College (a government college established by the Ministry earlier mentioned) working there until July 2006. The Tribunal notes the appellant’s evidence that he then went on to obtain employment at the Oromia Research Institute and to obtain a Master’s degree from Haramaya University.

163    Again, at 106, the Tribunal returns to the matters mentioned at 95, 100 and 105, as earlier mentioned in these reasons, and makes this observation:

The Tribunal finds that such a scenario is very much at odds with the independent information. In coming to this conclusion, it has had regard to all of the submissions, including the submissions about Mr Gerba and Mr Gudina.

164    At 107, the Tribunal notes the appellant’s submissions that he obtained a job at the College in August 2003 which was at a time when TG had not died and GG had not fled Ethiopia. It notes the appellant’s evidence that he was offered the job at the end of August and commenced at the College in October 2003. The Tribunal observes that the appellant had “consistently indicated” that his employment commenced in October 2003 and that it was after the Tribunal questioned him about how he was able to obtain the job in October 2003 that he claimed it was in August that he was offered the job, commencing in October. At 107, the Tribunal returns to the concerns reflected at 95, 100, 105 and 106 of its reasons, in these terms:

However, even if it was the case that he was offered the job around the end of August, the Tribunal nevertheless finds very problematic the evidence that he was able to take up such employment in October and continued to be employed in that job until July 2006. As indicated in the country information set out above, independent information indicates that those suspected of involvement in the OLF have been particularly harshly treated and have suffered harm such as harassment and torture.

[emphasis added]

165    At 107, the Tribunal also said this:

The applicant’s evidence suggests that his circumstances were in many senses analogous to those of his two brothers in the sense that he claims also to be related to the uncle who was involved in the OLF and to have been falsely accused and suspected of involvement with the OLF. He claims that one of those brothers died after imprisonment of three years and the other had to flee to Kenya where he remained in a refugee camp for around ten years. However, the applicant maintained public sector employment in Alage ATVET College and then Oromia Agricultural Research Institute for many years and then obtained a [Master’s] degree from Addis Ababa University.

166    Having noted those matters, the Tribunal, at 107, returns to the concerns reflected at 95, 100, 105 and 106 and in the earlier part of 107, in these terms:

His ability to do so does not sit at all comfortably with independent information about the treatment of those suspected of OLF involvement or with his evidence about how other members of his family were affected. Even if he was offered his job prior to the time of [TG’s] claimed death, the Tribunal considers his ability to commence and maintain this employment to be very much at odds with his claims about the circumstances of himself and his family. This very much undermines the credibility of his claims and evidence.

[emphasis added]

167    At 108, the Tribunal notes, and accepts, that the appellant’s employment in “Zuway” was a considerable distance from his hometown of Amuru. The Tribunal notes country information (citing the UK Home Office Operational Guidance Note) which states that, in general, internal relocation to escape persecution associated with being a sympathiser of the OLF “will not be an option” and thus the “Tribunal does not accept that the applicant could avoid the interest of [“Ethiopian authorities”] simply by moving to another place in Oromia”. Nor did the Tribunal accept that the relatively “recent” establishment of the College explained why the appellant could “assume employment there in October 2003 apparently with so little difficulty”: 108. The Tribunal expressed this view at 108:

The independent evidence indicates that Ethiopian authorities pursue, harass and intimidate those suspected of involvement in the OLF. The Tribunal considers that this in itself would be sufficient to cause the applicant to come to attention and does not accept that he could avoid such attention simply by relocating within Oromia.

168    At 109, the Tribunal notes the appellant’s evidence that his father, mother and sister were detained in December 2003 for two months following the departure of GG to Kenya. The Tribunal observes that “if this were true”, the family would have been of “considerable interest” to the authorities at that time, causing the Tribunal to ask the appellant why he too had not been arrested. The appellant’s evidence was that he was “teaching in Alage University” and thus “not in that area when these things happened”. He said that he was at Alage University which was “very far” away. He said that it took “one day’s journey to get there” and that the family members “were in the same house”.

169    In response, the Tribunal at 109, emphasises its concern about the “employment” factor and says this (consistent with the Tribunal’s concerns expressed at 95, 100, 105, 106 and 107 as mentioned earlier):

However, the applicant’s evidence suggests that he had been able to commence employment with Alage ATVET College and continued that employment while his other family members were detained. The Tribunal does not find at all convincing the applicant’s explanation that he was not there when his family were arrested or when his brother [GG] left the country. He claimed to have brought himself to particular attention by giving a speech at the brother’s funeral [TG] in September 2003. The evidence suggests that his brother [GG] did not go back home after seeing the applicant being taken by the police [which occurred at TG’s house after the funeral service]. The applicant’s evidence suggests that the applicant had recently come to attention as a person suspected of links with the OLF, his brother left the country soon after and his family came to the adverse attention of the authorities and was detained. The Tribunal does not accept that there is any satisfactory or credible explanation as to why the applicant would then be able to pursue his employment with the Alage ATVET College apparently without being pursued by the authorities in the same way as other family members.

[emphasis added]

170    At 109, the Tribunal also said this:

[I]t considers his circumstances in terms of his employment at Alage ATVET College to be very much at odds with his claims about what had happened to him and other members of his family.

[emphasis added]

171    At 110, the Tribunal moves from an examination of its concern about the juxtaposition of the appellant’s educational and employment achievements on the one hand and his claims of being suspected of being a member of, or associated with, the OLF (and his family’s association with the OLF) on the other hand, to a consideration of internal inconsistencies in the appellant’s own evidence.

172    The Tribunal observed at 110 that the appellant’s evidence of a claimed connection with the OLF (and his family’s connection with the OLF) “appears to have expanded greatly over time”.

173    The inconsistency leading to that conclusion was said to be this.

174    At the hearing, the appellant claimed that ever since his maternal uncle joined the OLF, government soldiers intensified their suspicions about his family; “countless searches” of the family house occurred; he witnessed four or five such searches resulting in the arrest and detention of his parents for a while, yet “he had not made any mention of such incidents in his written statement of [11] March 2014 or in the claims in his protection visa application”: 110. The Tribunal observed that in that statement, nor did the appellant mention that “his uncle was involved in the OLF”: 110. Nor did he mention “the visits to his house and his parents being taken away”.

175    To the extent that the Tribunal is referring to the four or five specific occasions when the appellant says he witnessed searches of the family house resulting in the arrest and detention of his parents, it is correct to say that that matter is not mentioned in the statement of 11 March 2014, nor in the boxes on the visa application form. However, it should be noted that at para 15 in the statement of 11 March 2014, as noted at [55] of these reasons, the appellant asserted that after the disappearance of his brother, GG, in fleeing to Kenya:

[t]he Ethiopian security police continued to harass the rest of my family members. Even following my brother’s death, the authorities continued to take my father to Amuru police station, and intimidated him several times. In December 2003, my father, mother and sister were arrested by security police in relation to the disappearance of my brother [GG] and detained them for about two months.

176    To the extent that the details noted by the Tribunal were not mentioned in the 11 March 2014 statement, the appellant gave evidence at the hearing that he had prepared the statement on his own without legal help and he did not know “how wide it should be”, although he now knows that the comprehensiveness of his statement would be “relevant to his claim”. The Tribunal advised the appellant at the hearing that the identified omissions from his statement and from the visa application form was “something that might cause it concern or doubt about his claims about this”: 110.

177    As to these matters, the Tribunal said this at 112:

If his uncle’s membership of the OLF had led the authorities to harass his family, search the family home in which he lived and take his parents away on multiple occasions, this would have been of very obvious relevance to the applicant and his circumstances and claims. The Tribunal has considered the submissions in this regard but does not accept that there is a satisfactory explanation as to why, if the applicant’s family had a connection to the OLF through an uncle and his family had been repeatedly harassed in the way that has been claimed, this was not raised in his written statements to the Department.

178    At 112, the Tribunal also said this:

It may be that the applicant later raised the claim about his uncle with the Department and that this was then recorded in the delegate’s decision. However, this does not explain the omission of these matters from the earlier written statements [the visa application form and the statement of 11 March 2014].

179    At 113, the Tribunal identifies further aspects of the appellant’s claims in relation to the events at TG’s funeral which the Tribunal found “on their face difficult to accept”.

180    As to that matter, the Tribunal notes the appellant’s evidence that soon after the death of TG in official custody after a period of detention of around three years, the appellant made a public speech (which is a reference to the appellant’s claimed address at the funeral) “in which he referred to the [inhumane] treatment of his brother and other Oromos, and referred to dictators being judged for their human rights violations”: the precise matters concerning the claims made at the funeral address are set out at [50] of these reasons. The Tribunal observes that it put to the appellant that it might have some difficulty accepting that he would say those sorts of things at such an event, particularly when there were three police officers there and that independent evidence suggested that people who had some association with the OLF had been harshly treated by the authorities and that people who expressed dissent had also been harshly treated. The Tribunal notes the appellant’s evidence that he had prepared his statement for the burial service and around 250 people attended. He gave evidence that he did not see the police officers before he began his statement but saw them in the later part of his statement, and by that time he had already said most of the important things. The Tribunal observes that it again put to the appellant that it might have difficulty accepting that he would say such things at a funeral service of a person accused of involvement with the OLF. The appellant’s explanation in response was that he was saying the truth about the mistreatment of TG and the denial of medical support. The Tribunal notes the appellant’s evidence that there were three police officers among a group of 250 people and he could not really see each and every person and, in any event, even after he saw them, he did not take them to be people who were spying on him.

181    At 114, the Tribunal observed that it has considered the applicant’s evidence on this topic in combination with the post-hearing submissions, but did not find the appellant’s evidence “at all convincing”.

182    The Tribunal accepted that the death of a brother would be a source of trauma, anger and grief. The Tribunal considered that if TG had been detained by Ethiopian authorities for three years and had died in prison due to treatment by Ethiopian authorities, the extremely high level of risk associated with making a speech at a public funeral of the type described would be obvious even to a young man without political experience. The Tribunal observes that this topic or matter “is certainly not decisive in itself”.

183    However, the Tribunal considered “aspects of the explanations provided by the applicant to be even more problematic”. The Tribunal noted that in his supplementary statement of 28 February 2016, the appellant had claimed that at first he did not see any police but later, while speaking, he saw them. It notes that he claimed that he assumed they were there to mourn his brother and he did not turn his mind to the possibility that they were “police spies or to the possible consequences to him”. The Tribunal then makes this observation at 114:

However, the Tribunal considers that, if the applicant’s brother had died as a result of mistreatment at the hands of Ethiopian authorities and there were three uniformed police officers at the funeral, this would have been something that would arouse the attention of those at the funeral. The Tribunal does not find at all convincing the suggestion that the applicant would not be aware of the presence of such people until he was part way through his speech. It also finds to be very much lacking in credibility the suggestion that people at such a funeral would regard uniformed police at such an occasion as being mourners or would not appreciate the possible consequences of making such a speech in front of police. … Considered in its entirety, the Tribunal finds the applicant’s evidence about this event to be very much lacking in credibility.

[emphasis added]

184    In the context of the Tribunal’s concern about the perceived inconsistency between the appellant’s education and employment achievements on the one hand and his claims as the basis of a well-founded fear of persecution on the other hand (at 95, 100, 105, 106, 107, 108 and 109 of the Tribunal’s reasons), together with the Tribunal’s concerns about the difficulties in accepting the appellant’s evidence on the matters described at [172] to [180] of these reasons, the Tribunal turned to the question of the witness statements put to the Tribunal by the appellant.

185    The Tribunal notes at 115 that the statements from “people such as Mr Diga, Mr Nono, Mr Oljira, [Ms] Akasa, Mr Jena, Mr Below and Mr Gudeta” are statements from witnesses who “claim to have some knowledge of these events”. The Tribunal observes that it has had regard to the various witness statements that “purport to describe such events”: 115.

186    The Tribunal observes that such evidence conflicts in some regards even with the appellant’s own evidence. As to that, the Tribunal observes that with regard to the statement of Mr Nono, the Tribunal notes that he stated that he could not recall exactly when TG was imprisoned but that he believed that TG was aged, at most, in his early 20s when this occurred: 115. The Tribunal observes that this is “very much at odds with” the appellant’s own evidence to the effect that his brother was around 30 years old when he was detained in 2000: 115. The Tribunal also noted that Mr Nono indicated in his evidence that he was born in 1978 and claimed to have been in the same year at school as TG. The Tribunal observed that there is a “fundamental inconsistency in the evidence”: 115. The inconsistency as to the school year is that if TG was 30 years of age in 2000, he would have been born in 1970 and if Mr Nono was born eight years later, it was difficult for the Tribunal to see how they could have been in the same year at school. The Tribunal also observed that it had had regard to the “passage of time” but noted that Mr Nono claimed to be a person who knew TG. The Tribunal then repeated its finding that there is a fundamental inconsistency between Mr Nono’s evidence about TG’s age and the evidence given by the appellant in relation to the age of his brother at the time of his brother’s detention in 2000: 115.

187    As to Mr Diga, the Tribunal noted that Mr Diga stated that he was born in 1981 and claimed that he and TG were one year apart in school. The Tribunal observed that it had “great difficulty” reconciling this evidence with the evidence of the appellant that his brother was about 30 years of age in 2000, which suggested that the age gap between Mr Diga and TG was 11 years: 115.

188    The Tribunal then observed that that circumstance cast “yet further doubt on the witness’s evidence”: 115.

189    The Tribunal also observed that “the applicant has been willing to provide witness evidence which does not accord even with his own claims about his brother [TG]”: 115.

190    As to Mr Oljira, the Tribunal notes that he stated that in his experience, government forces target young people whom they suspect to be Oromo activists or supporters of Oromo activism and, in particular, suspected members and supporters of the OLF: 116.

191    As to Mr Gudeta, the Tribunal notes that he stated that once an Oromo family is suspected by police or security forces of being associated with the OLF, they are constantly harassed by the government: 116. The Tribunal notes that he stated that the appellant’s family were known to him and were generally known in the community to be one of the families that faced constant harassment by the Ethiopian government: 116.

192    As to Mr Jena, the Tribunal notes that he stated that when he went to Ethiopia in 2008, the appellant’s father told him that the police were constantly watching his house and family: 116.

193    As to the statements of Mr Oljira, Mr Gudeta and Mr Jena, the Tribunal observed that it was “unable to reconcile such statements with the appellant’s circumstances in relation to matters such as his employment and subsequent education”: 116.

194    As to Mr Diga and [Ms] Akasa, the Tribunal notes the submission of Mr Glass that those witnesses did not have access to a printer or a scanner but had authorised the provision of their unsigned statements to the Tribunal as a statement of their evidence. The Tribunal then observed that “no explanation has been provided as to why, if Mr Diga is living in the United States and was apparently able to organise for a statement to be e-mailed, he would be unable to arrange for [a] signed statement to be provided to the applicant or his representative”. The Tribunal also observed that nor was there any explanation as to why [Ms] Akasa, who also claimed to be living in the US, “would be unable to arrange for a signed statement to be provided”: 116.

195    At 117, the Tribunal seems to be addressing the question of the total number of witness statements when it says that it has considered the witness statements. It then says that it accepts that a number of parties have been willing to provide statements attesting to various matters, including the claimed events in 2003. It repeats its observation that there is some conflict between the witness’s evidence and the appellant’s own evidence, although the scope and content of that conflict is not explored beyond the matters already discussed. The Tribunal then observes that “[t]here are other difficulties with the witness evidence” and observes that “[i]n particular, the Tribunal is unable to reconcile the matters referred to in the witness evidence with the applicant’s own subsequent experience in relation to matters such as education and employment”: 117.

196    Accordingly, the Tribunal is expressing concern that the evidence of the witnesses is inconsistent with the educational and employment achievements of the appellant and gives rise to an “age” inconsistency.

197    Having expressed those views, the Tribunal then observes that it has considered the witness statements “but does not accept this material as being reliable”: 117.

198    That conclusion must be referrable to the apparent inconsistency between the appellant’s achievements in terms of his education and employment and the circumstance that the appellant and his family were thought to be supporters of the OLF, taken together with the identified inconsistency arising out of the appellant’s evidence that TG was about 30 years of age in 2000 and the statements of the nominated witnesses that they were at school with TG.

199    The Tribunal observes that although the witnesses have indicated a willingness to discuss these matters with the Tribunal, “they have not provided any contact details on their statements” [emphasis added]: 117.

200    The Tribunal then notes that submissions have “suggested that the applicant’s representative holds contact details”. It observes that the appellant has provided evidence at length at the hearing and “brought with him to the hearing a witness from whom the Tribunal took evidence” (Mr Etana). It observes that subsequent to the hearing, the appellant’s representative provided a number of witness statements to the Tribunal which the Tribunal “has weighed with all the other material”: 117. The Tribunal then observes that “[i]n all the circumstances, the Tribunal does not consider it necessary to initiate enquiries to seek to contact the authors of such witness statements” [emphasis added]: 117.

201    The reference to “in all the circumstances” must be a reference to the circumstances identified by the Tribunal in these paragraphs, that is: the Tribunal has considered the written witness statements; it has considered the oral evidence of the appellant and the evidence of Mr Etana; it has taken into account the inconsistency in connection with the “age” of TG; and the apparent inconsistency between the appellant’s educational and employment achievements and the circumstance that the appellant’s family (and thus the appellant) faced constant harassment by the Ethiopian government as suggested sympathisers with the OLF.

202    In those circumstances, the Tribunal elected not to “initiate enquiries to seek to contact the authors of such witness statements”. That statement must be understood as an election not to take up the opportunity to obtain evidence from the witnesses by calling upon Mr Glass to provide the contact details available for each witness held by him, as advised to the Tribunal, and to assist the Tribunal, as offered, in making arrangements for the relevant witnesses to give evidence.

203    There can be no serious doubt that Mr Glass held the contact details for the various witnesses and the circumstance that those contact details (especially the telephone numbers) were not recited in the statements themselves is not a matter which would rationally call into question the reliability of the statements.

204    At 118, the Tribunal addresses the statement provided by the appellant’s brother, GG. It notes that GG, by his statement, purports to “corroborate the [appellant’s] claims”. It notes that GG refers to matters such as the uncle’s connection with the OLF, harassment and questioning from the police, the appellant’s speech at the funeral and the interrogation of the appellant. It notes that GG claimed that he feared that he might be the next member of his family “to be picked up” and that he decided not to go home after seeing the appellant taken away. The Tribunal then describes briefly aspects of GG’s further evidence concerning his decision not to return to his parents’ house; his decision to escape to Kenya; arriving at the refugee camp in Kakuma and spending about 10 years in that camp: 118.

205    The Tribunal then says this about GG’s statement:

However, the Tribunal does not accept that there is any satisfactory explanation as to why, if these were the circumstances for [GG] and other family members, the applicant was able to take up employment at Alage ATVET College, work there until 2006, obtain employment with Oromia Agricultural Research Institute (OARI) and complete a [Master’s] degree at Haramaya University. The Tribunal has had regard to evidence such as that from [GG] but does not accept it as reliable.

[emphasis added]

206    Again, the fundamental difficulty for the Tribunal was that it could not reconcile the evidence of GG, as a member of the appellant’s family, and the circumstances confronting that family, with the educational and employment achievements of the appellant, other than on the footing that the answer to the reconciliation of those matters was that GG’s evidence must also be unreliable.

207    At 119, the Tribunal turned to the oral evidence of Mr Etana and his written statement. The Tribunal notes that Mr Etana’s sister is married to the appellant’s half-brother. The Tribunal notes that Mr Etana’s evidence was that his family members had told him “what was going on in the applicant’s case and other cases”. The Tribunal notes that Mr Etana did not provide “a lot of detail in his written statement” and that in relation to the third detention in 2013, Mr Etana seemed to say that he had been told about the appellant’s arrest and that that was the last thing he had heard about the appellant until the appellant arrived in Australia. The Tribunal also notes that it questioned Mr Etana about how he could recall what happened around the time of the funeral.

208    As to the oral evidence of Mr Etana, the Tribunal notes that he gave evidence that he had heard that the appellant had been detained three times and was told of the first occasion by his mother in 2003. The Tribunal notes that Mr Etana said that in 2003 the appellant’s older brother passed away, according to statements made to him by his mother, and he gave evidence that his mother attended the funeral and told him that the appellant was “reading some of the applicant’s brother’s life story and how he passed away”. It notes that Mr Etana claimed to remember what his mother had told him about that matter even though he “would have been only about 12 years of age at that time”. The Tribunal notes that Mr Etana said that he was about 14, but also notes that Mr Etana said that he was born on 17 September 1990, which suggested that he would have been just 13 at the time of the claimed death of TG in September 2003. The Tribunal observed that it asked Mr Etana how he was able to remember so clearly those matters. He said that he remembered “what his mother had told him”.

209    At 120 and 121, the Tribunal examined aspects of Mr Etana’s evidence, and especially the matter of Mr Etana’s age at the date of TG’s death in 2003. It seems that Mr Etana was 13 at that time. It noted that Mr Etana’s evidence about claimed incidents in which the appellant was detained appeared to be quite vague. As to the age point, the appellant’s lawyers submitted that Mr Etana was perfectly capable at age 13 of remembering the death of an acquaintance.

210    At 125, the Tribunal observed that it had considered the evidence of Mr Etana and the submissions made to it about that evidence. It observed, however, that it found Mr Etana to be “a most unimpressive and unconvincing witness” and although Mr Etana suggested that the appellant was of sufficient interest to him that he could recall what his mother had told him about the steps the appellant took at the funeral of TG, when Mr Etana was 13 years of age, he was able to provide “only the vaguest evidence about the applicant’s claimed subsequent detentions”. At 125, the Tribunal repeated his observation that Mr Etana was a most unconvincing witness and observed that it gave his evidence “little weight” and that his evidence “is far outweighed by other matters that cast doubt on the credibility of the claims” (which presumably is a reference to the appellant’s claims). Although criticisms were made of the Tribunal’s observations about the unlikelihood of Mr Etana remembering something his mother had said to him when he was 13 years of age, the Tribunal’s assessment of Mr Etana and his evidence was well within the core function of the Tribunal’s merits assessment of his evidence. Any criticism of that evidence is simply a matter of emphatic disagreement with the conclusion.

211    At 127, the Tribunal said this:

The Tribunal has carefully considered all the evidence before it. However, the Tribunal ultimately finds the claims and evidence about the events in 2003 and the matters concerning the OLF to be lacking in credibility.

212    The Tribunal then synthesised, at 127, critical factual matters in these terms:

The applicant has claimed, for instance, that his uncle had involvement in the OLF, that his family was repeatedly harassed, that his brother was detained in 2000 and died in 2003, that he gave a political speech at his brother’s funeral, that he was arrested and detained in September 2003, that his brother subsequently fled Ethiopia, that his father continued to be detained, and that his father and sister were detained for two months from December 2003.

213    At 127, the Tribunal then set out its conclusion in relation to the evidence of the appellant. In simple terms, the Tribunal rejected every facet of the factual claims (addressed in 127) made by the appellant and it did so in these terms:

The Tribunal finds the applicant’s circumstances, including his employment at Alage ATVET and then the OARI and his completion of a [Master’s] degree, to be very much at odds with such claims. This casts great doubt on his general credibility as a witness. The Tribunal finds the claims and evidence in this regard to be lacking in credibility. In this regard, it is also found to be lacking in credibility the applicant’s evidence about matters to do with the funeral, including his explanations to the effect that he did not initially notice the police, that he thought they might be mourners when he did notice them and that he did not turn his mind to the possible consequences for him as he made his speech. The Tribunal finds the evidence about these matters to be lacking in credibility. It does not accept that the applicant’s uncle was involved in the OLF, that members of his family were harassed or detained in relation to suspected involvement in the OLF, that his brother was detained in 2000 or died in prison, that the applicant gave a speech at his brother’s funeral or was subsequently detained as claimed, that his brother [GG] left Ethiopia in the circumstances claimed or that members of the applicant’s family were in any way harassed. It does not accept that the applicant was suspected to be associated with the OLF from around 2003 as claimed or that other members of his family were, or were suspected to be, members or supporters of the OLF.

[emphasis added]

214    It can be seen that these factual findings start with the proposition that the appellant’s circumstances including his employment and educational achievements are “very much at odds” with his claims. In other words, the two cannot sit together and because that is so, “great doubt” is cast on his “general credibility as a witness” with the result that the Tribunal rejects his evidence on all of the matters recited in the second half of that paragraph. The Tribunal did not accept any of the factual claims about the appellant’s uncle’s involvement in the OLF, harassment of the family, the detention of TG, the death of TG in prison, the giving of a speech by the appellant at TG’s funeral, the appellant’s subsequent detention, the departure of GG from Ethiopia in the circumstances claimed or indeed that members of the appellant’s family were “in any way” harassed. Nor did it accept that the appellant was suspected of being associated with the OLF from 2003 or that members of his family were, or were suspected to be, members or supporters of the OLF.

215    The entire factual foundation of the appellant’s claims addressed in 127 was rejected, very largely based upon the notion that the Tribunal was unable to reconcile the educational and employment achievements of the appellant with the claims he made forming the basis for his contended well-founded fear of persecution, together with the age discrepancy point mentioned earlier.

216    The Tribunal then turned to the problems the appellant claimed to have suffered at Alage ATVET College concerning the OPDO event and his employment generally and the second job obtained in August 2006. The Tribunal sets out the elements of those claims at 128 and further aspects of those matters at 129. The Tribunal notes that in relation to the second job in August 2006, the appellant said he was able to secure that position because he had never been found guilty of being a political member of any party or organisation and his first arrest was when he was speaking at the funeral about how TG died and that before that time no “problems or suspicions” had arisen. He emphasised that he had not become a political party member until 2008.

217    At 130, the Tribunal accepted that the appellant had not claimed to have become a political party member until 2008 and that he did not claim to have been found guilty of any offence. However, the Tribunal noted that the appellant claimed to have had problems at the Alage ATVET College and had faced demands and threats from the OPDO but had continued in employment at the College until July 2006. The Tribunal then observed that if the appellant had had problems at the College as claimed such that he was required to leave the College in fear of further persecution, it was not apparent to the Tribunal how he was able to maintain employment at the College until July 2006 when he obtained employment at another government college in August. At 130, the Tribunal returned to its fundamental concern in these terms:

The Tribunal considers that the applicant’s ability to teach at the Alage ATVET College until July 2006, gain further public sector employment and then undertake a [Master’s] degree at Haramaya University is at odds with his claims about his history as someone suspected of involvement in the OLF and his claimed difficulties while at Alage ATVET College.

218    At 131, the Tribunal emphasises the independent information earlier mentioned by the Tribunal. At 131, the Tribunal sets out other aspects of the explanations given by the appellant for his ability to maintain employment and at 132, as to these matters, said this:

In all the circumstances, the Tribunal does not accept as credible the applicant’s claims about his difficulties while at Alage ATVET College. It does not accept that he refused demands to join the OPDO or was threatened or otherwise harmed as a result of such a refusal as claimed. It does not accept that he was discriminated against in relation to matters such as further studies, scholarships, promotions, salary increases or wages. It does not accept that he took part in a protest or demonstration in June 2005 or that he was arrested, detained or mistreated as a result. It does not accept that he was monitored or that people asked about his teaching. It does not accept that he was harmed by OPDO members, Ethiopian authorities or anyone else.

219    The Tribunal reached the conclusions at 127 having considered the statements of the appellant and related documents, the statement of Mr Etana and having heard oral evidence from the appellant and Mr Etana. It had also considered the statements of the witnesses put to it by the appellant but formed the view that those statements were not “reliable” and that, “in all the circumstances”, the Tribunal did not consider it “necessary” to initiate steps to obtain evidence from any one of the witnesses. That seems to have followed for the Tribunal because the statements could not be reconciled with “the applicant’s circumstances in relation to matters such as his employment and subsequent education”: 116. It seems to have followed for the Tribunal that obtaining evidence from any one of the nominated witnesses could not have assisted the Tribunal in resolving the fundamental difficulty of reconciling the appellant’s claims with the educational and employment achievements of the appellant.

220    However, as the paragraphs at [113] of these reasons reveal, Mr Nono, in his statement, had said that he knew TG and the appellant’s family. He stated that many people in the community were speaking about TG’s arrest and imprisonment. He stated that he had heard of it through family and friends and he thought that TG was in his early 20s when this happened. More particularly, he says that he visited TG in prison a couple of times and that he mainly recalls one of those visits to Shambu prison in around 2002. He says that TG looked like he had suffered a lot, was unhappy, had lost weight and appeared to be in poor health. He states that TG told him that he had been beaten by the police while they had interrogated him about whether he knew people working for the OLF and that TG had said that the police had tried to get information from him by beating him. Mr Nono says that TG passed away in 2003 and that he travelled to Amuru to attend TG’s funeral. He stated that by the time he had arrived the funeral was nearly over. He stated that there were probably more than 200 people at the funeral. He also states that members of his family who were at the funeral told him that a member of the TG’s family, he thinks the appellant, made a speech about TG’s history, the fact that he was jailed and how he had suffered and died. He also says that he recalls that the family member told him that the appellant was crying during the speech. Mr Nono says that after the funeral he travelled home.

221    Mr Nono now lives in Alberta, Canada and had indicated a willingness to provide information to the Tribunal about the matters addressed in his statement.

222    The matters in Mr Nono’s statement go directly to the findings at 127.

223    As to [Mr] Amenu Jena, the witness stated that he knew the appellant and his deceased brother, TG, because he was friends with their father. He stated that he returned to Ethiopia for a visit in 2008 and met briefly with the appellant’s father. He says that the appellant’s father told him that the government had arrested TG for political reasons and that TG had died in prison. He stated that the appellant’s father told him that TG was mistreated and beaten in prison and that the police were constantly watching his house and family.

224    Mr Jena now lives in Toronto, Canada: see [119] of these reasons. He too was willing to speak to the Tribunal.

225    As to Mr Diga, he stated that he also knew the appellant and TG. He stated that in 2010 he returned to Ethiopia for a visit and met the appellant in Addis Ababa. The appellant told him that he was involved in organising students to support Oromo rights and freedoms in Ethiopia and he told him, in 2010, that he had been arrested and imprisoned and that he had no future in Ethiopia: see [115] of these reasons.

226    Mr Diga was willing to speak to the Tribunal about any aspect of his statement.

227    As to Ms Akasa, she says that she also knew the appellant and TG. She says that while she was still living in Ethiopia she remembers her mother telling her that TG had died in jail and that her mother had told her that he had been jailed for political activities and had suffered badly in jail: see [117] of these reasons. Ms Akasa now lives in Minneapolis in the United States.

228    She was willing to speak to the Tribunal about her recollection of what she had been told by her mother and any other matters in her statement.

229    The appellant’s brother, GG, who now lives in the Netherlands also provided a statement: see [121]-[123] of these reasons.

230    In that statement, he addresses facts relevant to the matters the subject of the findings at 127. He talks about the role of his father in relation to the OLF, questioning by the police of his family, the death of TG in prison, attending TG’s funeral, the appellant’s funeral speech and the content of it, his return to the house where TG lived after the funeral and the arrival of the police and his fleeing to Kenya. GG was also willing to speak to the Tribunal about any aspects of his statement.

231    As to Mr Below, he also says that he knows the appellant and he knew TG and their family: see [124] of these reasons. He states that in around 1999 or 2000, TG was arrested by government security forces and imprisoned and he says that he knows this because he was in Ethiopia at the time of TG’s arrest and had heard of the arrest from members of his family and from other people in the community. He says that he had heard that TG had been arrested because the government had accused him of supporting the OLF. Mr Below is not able to speak directly to these matters, but it is not irrelevant to understand that members of his family and people within the community were saying these things. Mr Below was also willing to talk to the Tribunal about any aspects of his statement.

232    As to Ms Gudeta, she says that she knows the appellant and knew TG: see [126] of these reasons. She says that in 2003 she was living away from her hometown but used to go back and visit her family from time to time. She says that on one of those visits her brother told her that TG had died in Shambu prison. She also states that her brother told her that her family had gone to TG’s funeral and that members of TG’s family had made speeches at the funeral about how TG was killed and that in the course of those speeches they had accused government security forces of torturing TG to death. She also says that during this visit she heard either from her family or from others within the community that the appellant had been accused of being hostile to the government and had been arrested because of what he had been saying about TG’s death in jail. She also says that she had “heard” after the funeral that the appellant’s family had been accused of provoking feelings against the government. Ms Gudeta lives in Canada but was willing to discuss any aspect of her statement with the Tribunal.

233    As to the evidence of Mr TA (see [92] and [93] of these reasons), he says that he and the appellant were both post-graduate students at Haramaya University at the same time and used to see each other every day. He says that he knew the appellant was involved in OPC activities on campus and knew that the appellant helped to organise political campaigns for the OPC. He then sets out his direct observations of the appellant in 2010 and discussions he had with the appellant’s wife in relation to the 2013 event. Those matters are set out at [93] of these reasons.

234    As to these statements, the Tribunal reasoned that it recognised that the witnesses claimed “to have knowledge” of the relevant events going to the appellant’s claims; that some of them purport to describe such events; and a number of them attest to the events of 2003: see [185] and [195] of these reasons. The Tribunal found the age discrepancy issue concerning TG in the evidence of Mr Nono and Mr Diga on the one hand, and the evidence of the appellant on that issue on the other hand, a “fundamental inconsistency” and a “great difficulty” casting “doubt” on the “witness evidence”: see [186] – [188] of these reasons. It says that it has considered the witness statements and has weighed them “with all the other material”, “but does not accept them as reliable” (see [197] and [200] of these reasons) for the reasons set out at [198], that is, the irreconcilable employment and educational factor and the age discrepancy point. The Tribunal seems to have further reservations about the statements because the contact details are not recited in the statements even though Gilbert+Tobin made it clear that it had the contact details for the witnesses and would assist in establishing arrangements to enable the Tribunal to engage with any of the witnesses should it wish or seek to do so.

235    It is not entirely clear what the phrase “but does not accept them as reliable” is intended to convey.

236    It presumably means that the Tribunal was not willing to act on, or rely upon, the witness statements as a basis for any corroboration of any of the factual claims of the appellant, that is, on any matter of fact as alleged by the appellant going to his asserted well-founded fear of persecution or a real risk of significant harm.

237    However, the Tribunal does not say or find that any one, or some, or some in combination with others, or indeed all, of the witness statements are concocted or fraudulent.

238    The Tribunal expressed understandable reservations about the statement of Mr TA. He was described in the statement as “Mr T” and no broader details of his identity and address were provided to the Tribunal. However, those details were available to Gilbert+Tobin and there was concern about putting those details in the statement having regard to Mr TA’s presence in Ethiopia and a concern about the confidentiality of those matters in the context of the difficulties he might face if disclosure were to occur. At 164, the Tribunal said this about Mr TA’s statement:

In making its findings, the Tribunal notes that the applicant has also provided a statement which purports to be from [TA]. In this statement, the author identifies himself as “T” and apparently refers to the applicant as “G”. [The statement then sets out some factual matters drawn from Mr TA’s statement and statements made to Mr TA by the appellant concerning the conduct of police officers detaining the appellant and accusing him of having been involved in anti-government activities while engaged in fieldwork with farmers. The Tribunal then continues at 164] … However, as discussed above, the Tribunal does not accept that there is any satisfactory explanation as to why, if the applicant had been targeted in the way he has claimed and accused of mobilising farmers, he would subsequently be able to return to work. It has repeatedly been suggested that the Tribunal should contact the author of this letter [the statement of TA], although the author of the letter has referred to monitoring of his calls by the Ethiopian authorities and claimed that he would need to be cautious about the level of detail he has provided. It is not at all apparent to the Tribunal how a person who could not in a written statement identify himself or the person about whom he was talking would be able to provide any useful detail in a telephone conversation. It is not apparent why, if these were the circumstances, he would, in oral evidence to a person previously unknown to him, provide basic details about matters such as the identities of relevant people. Notwithstanding the repeated submissions about this, the Tribunal does not consider it necessary or appropriate to contact the author of a statement (apparently using contact details to be provided by the applicant or his representative [Gilbert+Tobin]) to discuss matters about the applicant in circumstances where in a written statement provided for the applicant he identified neither himself nor the applicant. Ultimately, the Tribunal attaches little weight to this evidence. It considers that it is far outweighed by the difficulties with the evidence. It does not accept that the applicant was a member of the OPC or involved in OPC activities, that he disappeared in 2010 or in 2013, or that he suffered the difficulties referred to by the applicant and in the witness statements.

[emphasis added]

239    The Tribunal says that it does not accept the witness statements as reliable and the reasoning suggests that the fundamental basis for that view is because the witness statements do not help the Tribunal to answer the irreconcilable difficulty, as it sees it, between the appellant’s educational and employment achievements, on the one hand, and his claims, on the other, and the Tribunal considered that the statements gave rise to an age discrepancy issue so far as the evidence of Mr Nono and Mr Diga was concerned in light of the appellant’s evidence on that issue. Mr TA can also speak directly to his extensive knowledge of the appellant, the appellant’s political activities and his observations about the appellant going missing in 2010 and the appellant’s condition in 2010 after the 2010 event, and his discussions with the appellant’s wife at the time of the 2013 event.

240    Mr Nono and GG could speak directly to aspects of the underlying facts going to the appellant’s claims. Mr Jena could speak to a conversation he had with the appellant’s father in 2008 concerning TG and the appellant’s father’s understanding of the treatment TG received. Mr Below can give evidence of his parents having told him that they attended TG’s funeral and that TG’s family had taken TG’s body from the jail to the funeral.

241    Some of these statements are, of course, second-hand. However, the Tribunal is not bound by the formal rules of evidence and it did not express the view that the statements were not “reliable” or of no assistance in addressing the factual claims of the appellant because some of the evidence concerned second-hand remarks made by witnesses recounting the statements of others (which, plainly enough, were not proffered as proof of the truth of those facts but reflections of family or community statements that were being made at the time by those engaged with the appellant’s family).

242    It is entirely unsurprising that the Tribunal did not advance a rejection of the request to obtain oral evidence from the witnesses on the ground that some of the statements do not amount to probative evidence of the truth of the relevant fact in issue, as the Tribunal, in this area of its work, is entirely familiar with the international movement of peoples and the difficulty individuals have in obtaining strictly probative evidence on all aspects of the facts put to the Tribunal in support of a claim to hold a well-founded fear of persecution or a real risk of significant harm.

243    However, as to the age issue and other aspects of the proffered evidence concerning TG, his family and the apparent deterioration in TG’s condition in Shambu prison, an election on the part of the Tribunal to take oral evidence from at least Mr Nono, GG, Mr TA and Mr Jena might have enabled the Tribunal to form a view about critical facts in issue decided adversely to the appellant (at 127; see [211] – [213] of these reasons) and assisted the Tribunal in deciding the credibility question concerning the appellant’s evidence overall. Doing so might have assisted the Tribunal in deciding whether it could be satisfied that the appellant was a person who had, or whose family had (TG and the father), experienced the adverse attention of government authorities due to suspicions of having a connection, or a family association, with the OLF and who had, nevertheless, been able to secure education at the levels he achieved and secure employment as he did.

244    There was no suggestion in the reasoning of the Tribunal that the witness statements put to it by the appellant were to be rejected or found not to be reliable or of no assistance because the so-called “well” had been “poisoned beyond redemption” in the sense described by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2005) 77 ALJR 1165 at 1174 [49].

245    It is certainly true that in the context of adversarial litigation (which, of course, is not the character of the proceeding before the Tribunal which is “an inquisitorial merits-based review by an independent tribunal”: see the plurality in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 8 [22]), statements of a witness about what the witness has been told by third parties about a fact in issue are not admissible and not probative of the fact in issue. Sometimes, the very making of a statement by a person might itself be a material fact. However, in proceedings before the Tribunal, statements by witnesses about what they have been told by family members such as the father of the appellant about TG and his treatment might well aid the inquisitorial process.

246    Statements from people who can speak directly about having visited TG in prison and having attended the funeral (albeit towards the end of the funeral) would be likely to aid the inquisitorial process.

247    Statements from the brother of GG going to the heart of the appellant’s claims would be likely to aid the inquisitorial process about those claims.

248    Statements by a person such as Mr TA with extensive knowledge of the appellant and who can give direct evidence, as described at [92] and [93], would be likely to aid the inquisitorial merits-based review. Statements from a person who spoke with the appellant as early as 2010 about his having organised students to support Oromo rights and having been arrested and imprisoned would be likely to aid the inquisitorial merits-based process: Mr Diga.

249    By using the phrase “aid the inquisitorial process”, I mean aid in enabling the Tribunal to arrive at the “correct or preferable decision” in the case before it in respect of the individual applicant: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425, Brennan J; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 371 [93] (“Li”), Gageler J.

250    However, the Tribunal proceeded from the premise that a person who exhibited the educational and employment achievements of the appellant could not be a person who suffered exposure to ill treatment, harassment and discrimination by government authorities by reason of being a member or supporter of the OLF or who had, and whose family had, experienced treatment at the hands of government authorities as claimed. It followed for the Tribunal that none of the witnesses could assist it in reconciling that dilemma of great concern to the Tribunal. The Tribunal was also concerned about the “fundamental inconsistency” point concerning the age issue as earlier described: see [185] – [188] of these reasons.

251    As to each of the witness statements, it seems to be common ground that by reason of ss 424(1), 426(2), 427(1)(a) and 429A of the Act, the Tribunal has conferred upon it a discretion to take evidence on oath or affirmation for the purpose of obtaining, relevantly here, oral evidence in relation to the witness statements as part of a process of testing that evidence. The Tribunal must have regard to the appellant’s wishes that the Tribunal seek evidence from the nominated witnesses although the Tribunal is not compelled to obtain oral evidence from any one of them.

252    That said, the discretion must be exercised reasonably and comply with all of the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice although the content of those concepts is to be found in the Act and Regulations and the common law: Li, French CJ at [14]. The purpose of these provisions of the Act is to ensure that the Tribunal is able to have access to all the relevant material which will assist it in discharging its statutory function of reviewing the decision so as to enable it to reach the correct or preferable decision as mentioned at [249] of these reasons.

253    Did the Tribunal act unreasonably in the legal sense in which that concept is understood, in exercising the discretion not to obtain oral evidence from the witnesses proffered by the appellant and by finding that it was not “necessary” to obtain oral evidence from any one of them (apart from Mr Etana)?

254    In CZBH v Minister for Immigration and Border Protection [2014] FCA 1023, Rangiah J made these observations at [58] and [59] subsequently approved by the Full Court in AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [80]:

58    A myriad of factors may influence a Tribunal’s decision to obtain oral evidence or its decision not to do so. These factors include the relevance and importance of the proposed evidence, whether written evidence is sufficient for the Tribunal’s purposes, whether taking the evidence would cause undue delay, the ease or difficulty of contacting the proposed witnesses and the availability of a suitable interpreter [where relevant]. In an appropriate case, the Tribunal might decide that the evidence of an applicant is so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome. …

59    In the present case, there was no obvious practical difficulty for the Tribunal in obtaining oral evidence from the appellants’ fathers. The appellants’ solicitor had provided telephone numbers at which the fathers could be contacted and they were both immediately contactable. An interpreter was available. The oral evidence of the fathers was relevant and potentially important because acceptance of their evidence would have bolstered the appellants’ credibility: cf W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211; [124 FCR 449] at [2] per Lee and Finkelstein JJ; at [31] per Carr J. The Tribunal did not make any finding that obtaining oral evidence of the fathers could not have affected its view of the credibility of the appellants (instead reasoning that if the appellants’ evidence was contrived, so too must have been the written statements from the fathers).

255    In the Full Court decision in AYX17, the Court also cited [40] and [41] of the observations of Rangiah J in SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414. Paragraph 41 is in these terms:

41    [I]f evidence by a witness corroborating a part of the appellant’s evidence is given and is believed, that might suggest that the appellant is also telling the truth about other parts of his evidence: see W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211; (2002) 124 FCR 449 at [2], [30]. For this reason, in many cases it will not be open to the Tribunal to refuse to obtain oral corroborating evidence on the sole basis of an assertion that the evidence could not affect the Tribunal’s assessment of the appellant’s credibility. It is one thing to hear evidence and reject it or to find that it is of no assistance. It is another thing to refuse to hear what is said to be corroborating evidence on the basis of an assumption that it could not possibly be credible or could not possibly assist in assessing the credibility of the appellant.

256    The particular difficulty in this case concerning the witness statements and the request to obtain oral evidence from them and, in particular, the witnesses who could speak directly to important factual matters is that the Tribunal refused to attach any reliability to the witness statements for the reasons already indicated and was not willing to take any steps to make inquiries about the utility of being able to speak to any one of the witnesses, to test and determine whether it could usefully obtain evidence of matters which went to the critical factual matters relied upon by the appellant. It could have sought the precise contact details of one or more of the witnesses and investigated the possibility of obtaining evidence from them. It could have discussed these matters with Gilbert+Tobin who had the relevant details. It could have investigated whether evidence could have been obtained by telephone and whether it would have been necessary to undertake that process with the assistance of interpreters (although the witnesses are said to be able to speak English as a second language in any event). It could have informed itself about whether those processes were capable of being deployed. It might have formed a view that it was all just too difficult and unreliable. However, it treated the witness statements as unreliable for the reasons indicated and then decided that it was not necessary to even inquire about whether evidence could be obtained from any one of them on the factual matters.

257    In circumstances where the Tribunal was called upon to decide the range of factual matters reflected at 127, all of which were critical to the appellant’s contended well-founded fear of persecution, the Tribunal had to form a view about the credibility of the appellant’s evidence. The refusal to obtain oral evidence from any (apart from Mr Etana) of the witnesses (and, in particular, Mr Nono, GG, Mr TA (if that process had proved workable), Mr Diga and Mr Jena), for the reasons given and described extensively earlier in these reasons, lacked an evident and intelligible justification. Taking oral evidence from Mr Nono, GG, Mr TA and Mr Diga (and Mr Jena as to discussions with the appellant’s father about the contended mistreatment of TG and the supervision of the family by police and security officers) might well have assisted the Tribunal in its inquisitorial role in coming to grips with the facts going to the credibility of the appellant’s account, and asking questions of Mr Nono, Mr Diga and GG about their understanding of TG’s age might have helped to resolve the “age” issue. The Tribunal could have asked Mr Nono about his and TG’s schooling. Mr TA could have been asked about his direct knowledge of relevant matters and GG could have been asked about any or all of the matters in his statement. Questions could have been asked about the schooling anomaly of concern to the Tribunal; the contended visits to the Shambu prison; how often that occurred; how TG looked and what he may have said; the events at the funeral and any other matters touching upon any of the findings at 127. Testing those matters might have led to findings other than those at 127 and might have suggested to the Tribunal that the appellant was telling the truth about some or all of those matters and, as well, other aspects of his narrative influenced by a finding of lack of credibility as to this part of his evidence. It might have aided the Tribunal in resolving the dilemma it found difficult to resolve of how it could be that a person exhibiting the educational and employment achievements of the appellant could be a person of interest to government authorities on the grounds of suspected OLF support or membership.

258    Although there was a question concerning an age issue (which could have been explored in oral evidence with the corroborating witnesses), there is no doubt that the dominant postulate upon which the Tribunal rejected the evidence of the corroborating witnesses as unreliable and found it unnecessary to seek any oral evidence from any of them was that the Tribunal could not see how it could possibly be that a person exhibiting the educational and employment achievements of the appellant could be a person who had experienced, or whose family had experienced, the claims made by the appellant and thus the appellant must not be telling the truth.

259    At [84], the primary judge found that the course adopted by the Tribunal was not lacking an evident or intelligible justification. The primary judge said this at [84]:

In my opinion it was not “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking [an] evident or intelligible justification”, or “obviously disproportionate” for the Tribunal to rely on the combined effect of the applicant’s educational and employment history and country information as a basis for not accepting the evidence of GG (or of the other persons who provided written statements) and, for that reason, deciding it would not be assisted in determining whether it would accept those persons’ evidence by taking oral evidence from them. With the exception of the applicant’s employment status from October 2009 to 2011 (which I discuss later in these reasons), there was no doubt that the applicant’s education and employment history was that which the Tribunal found it was because the Tribunal’s findings were based on what the applicant himself said; there is nothing to suggest GG or any of the other persons could have given any probative evidence about the applicant’s education and employment history; and there is nothing that could reasonably have suggested to the Tribunal that GG or the other persons could have given evidence in relation to the country information on which the Tribunal relied in assessing the consistency between the applicant’s employment and education history with the applicant’s claims of detention and harassment. In those circumstances, there would have been no reason for the Tribunal to have reasonably expected, had GG or any of the other persons who had provided written statements been called to give oral evidence, that these persons could have said anything about the matters the Tribunal found to be inconsistent with their evidence, namely, the applicant’s education and employment history, given the country information the Tribunal considered to be relevant.

[emphasis added in bold]

260    The difficulty with these observations, in my respectful opinion, is this.

261    None of the witness statements were put to the Tribunal on the question of the appellant’s employment and educational achievements. None of the statements were addressed to aspects, argumentatively or otherwise, of the country information ultimately relied upon by the Tribunal.

262    The statements were directed to foundation questions of fact relevant to the appellant’s claim to hold a well-founded fear of persecution by reason of the conduct of Ethiopian government authorities in relation to his family and in respect of his own experiences. The contended fears (and thus the claims) were rooted in the claims concerning the conduct of government authorities towards the appellant’s family including the appellant’s father, mother and sister and TG, the facts in relation to TG, TG’s incarceration in Shambu prison, his treatment in that facility, his deterioration and ultimate death in that facility, his funeral, the events at the funeral, the events at TG’s family’s house after the funeral and such matters all of which were the subject of the findings at 127. The point of the evidence of Mr Nono, GG, Mr Diga, Mr TA and Mr Jena was that they could speak to these foundation facts. Had the Tribunal heard evidence from Mr Nono, GG, Mr Diga, Mr TA and possibly Mr Jena it may have been informed about factual matters which may have caused it to be satisfied that at least some of the facts contended for by the appellant were true. Alternatively, it may have been satisfied that the evidence did not assist it in determining whether any of the appellant’s allegations were true or that having taken steps to try and obtain the oral evidence of the corroborative witnesses, the Tribunal could not be assisted by the evidence so obtained. Findings by the Tribunal that the appellant’s family was not harassed as claimed, that TG was not detained in 2000 and did not die in prison, that the applicant did not give a speech at his brother’s funeral and that GG did not leave Ethiopia in the circumstances claimed, were made in circumstances where the Tribunal found the witness statements to be unreliable and thus it was unnecessary to take oral evidence from any of the witnesses who could speak directly to these matters (or witnesses who could talk about things said in the community and by family members having a connection to the appellant’s family), because none of their evidence could overcome the postulate that a person who had the demonstrated educational and employment achievements of the appellant could be a person who was, or was thought to be, a person associated with, or sympathetic to, the OLF.

263    Thus, it necessarily followed that the appellant was lacking in credibility.

264    Evidence about the foundation facts from the corroborative witnesses may well have influenced a view about those factual matters.

265    Clearly enough, the Tribunal was not asked to obtain evidence from the corroborative witnesses on the topic of how they might address a resolution of the Tribunal’s concerns as between information of a general nature contained in the country information reports and the uncontested circumstance that the appellant had been able to obtain education and employment as found by the Tribunal at 94 (as set out at [9] of these reasons).

266    The Tribunal’s wholas bolas rejection of the witness statements on the footing that the Tribunal “does not accept this material as being reliable” (Tribunal at 117), and the election not to obtain oral evidence from any of those witnesses (other than Mr Etana) because it was not “necessary” (Tribunal at 117), when a number of those witnesses could speak to critical matters which became the subject of findings which, in turn, determined the Tribunal’s attitude to the credibility of the appellant on those matters and overall, lacked an evident and intelligible justification.

267    Moreover, there is no assessment in the Tribunal’s reasons of the possibility that it might be wrong about the appellant’s credibility by reason of the dilemma caused by the juxtaposition of the appellant’s educational and employment achievements and his claims, having regard to the country information. What if the evidence of the corroborating witnesses suggested to the Tribunal that the appellant’s brother, TG, was in fact arrested and in fact deteriorated in Shambu prison in the way suggested and in fact died at the hands of government authorities (police and prison authorities) by reason of mistreatment and the denial of access to medical attention? What if Mr Nono’s evidence about his conversation with TG in jail were to be accepted? What if Mr TA’s and Mr Diga’s evidence was thought to be persuasive on some material matters? What if the complaints and statements made by the appellant’s father about the treatment of the family and TG were found to have gravitas? What would the position of the appellant be in those circumstances?

268    None of this is considered because the version of the facts given by the appellant must lack credibility because, in the Tribunal’s view, a person having the educational and employment achievements of the appellant could not be a person who was, or whose family was, thought to be a member of, or sympathetic to, the OLF.

269    It should also be remembered that in relation to the employment and educational factor which was of particular concern to the Tribunal having regard to the achievements of the appellant in those areas against the background of the claims he made, the Tribunal had before it the evidence of Mr Arie van Kekem who from 1989 to 2015 was employed as a Project Leader for the CASCAPE Project: see [87], [95] and [96] of these reasons. The CASCAPE Project was an agricultural development and improvement project conducted within Ethiopia involving the Ministry of Agriculture, Haramaya University (and others): see [87]. As mentioned at [96], Mr van Kekem said this in his statement in relation to decisions about employment:

In the interviews [in which] I participated, decisions about who to employ for the CASCAPE Project were taken together with the staff of the university. Our employment criteria were based solely on candidates’ professional skills and experience, personal attitude to the job, and ability to speak or understand the local language. We did not ever have regard to political or ethnic considerations. Certainly, as far as I know, the government of Ethiopia did not have any influence in who we could employ for the CASCAPE Project.

[emphasis added]

270    A large part of the Tribunal’s reasoning which led it to conclude that the corroborating witness statements could not be accepted as “material as being reliable” (117) and the decision that it was not “necessary to initiate inquiries to seek to contact the authors of such witness statements” (117) was that the statements did not assist in reconciling the appellant’s claimed circumstances and his employment and subsequent education. However, Mr van Kekem’s statement seems to suggest that even though the Ministry of Agriculture and Haramaya University were involved in the CASCAPE Project, people were being employed independently of any question of political or ethnic considerations and that as far as Mr van Kekem knew, the government of Ethiopia did not have any influence in who would be employed in that Project. That evidence might have suggested to the Tribunal (sufficient to initiate inquiries about obtaining evidence from some of the key witnesses) that, at least in some circumstances, a person with anti-government views or suggested of having a history of political views unsympathetic to the ruling party, might nevertheless have been able to obtain employment in some areas of public sector activity, such as the CASCAPE Project.

271    The rational, reasonable course in exercising the discretion as an independent “inquisitorial, merits-based review … tribunal” (see [245] of these reasons) was to take up the opportunity of obtaining oral evidence from at least those witnesses who could speak directly to factual matters as indicated earlier. Having heard the evidence, the Tribunal might reject it and be entirely unpersuaded by the oral evidence. It might remain confirmed in its view taking into account the oral evidence it had heard. However, it has put out of its hands the possibility of evaluating the oral evidence and the possibility of the appellant convincing it that his evidence was credible in whatever respects the evidence might demonstrate.

272    The Minister supports the reasoning of the Tribunal and seeks to support, as a basis for the decision not to obtain oral evidence from any of the corroborating witnesses, the reasoning of the primary judge. The Minister says that any evidence that might have been obtained from any of the corroborating witnesses could not have assisted the Tribunal in resolving the dilemma it was seeking to resolve, and moreover much of the evidence was not probative of the relevant fact and simply amounted to hearsay upon hearsay. As already mentioned, the Tribunal did not exercise the discretion to refuse to obtain oral evidence from the corroborating witnesses on that ground. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the Full Court said this at [47] in the context of discussing the reasoning process by which the decision-maker arrived at the exercise of the relevant power:

This question [that is to say, the relevance of matters not relied upon by the Tribunal in its reasons for exercising a statutory power conferred upon it] highlights the distinction made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purpose of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power – at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. … If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

[emphasis added]

273    As earlier mentioned, s 420 of the Act provides that the Tribunal, in reviewing a Part 7 – reviewable decision is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. The Tribunal rejected the corroborating witness statements as unreliable and decided not to exercise the discretion to obtain oral evidence from those witnesses for the reasons extensively identified already. It did not at any point decide that matter by reference to admissibility, or any aspect of the rules of evidence, as a reason for the decision. In those circumstances, I can see no basis upon which a supervisory court ought to stand outside the reasons adopted by the repository of the power for deciding to exercise the power in the way it was exercised, and begin a process of trying to identify other reasons why the exercise of the power might have fallen within the boundaries or limits of the conferral of the power, had they been the reasons.

274    To the extent that the primary judge made the findings described at [259] of these reasons, having regard to the matters at [260] to [271] of these reasons, I would respectfully depart from that view and find that the primary judge was in error.

275    Accordingly, Ground 1 of the Grounds of Appeal is upheld.

Ground 2

276    There is considerable overlap between Grounds 1 and 2 of the appeal.

277    By Ground 2(a), the appellant contends that the findings that TG had not been suspected of involvement in the OLF; had not been detained in prison; and had not died in prison, were so unreasonable that no tribunal acting reasonably could have so found, and the findings were illogical. That was said to be so, due to the weight of evidence and the failure of the Tribunal to obtain evidence from eight of the corroborative witnesses.

278    As to Ground 2(b), the appellant contends that the Tribunal’s finding that the witness statements were unreliable was legally unreasonable and irrational as the witness statements supported the detention and death of TG and the Tribunal elected not to obtain evidence from the witnesses. Moreover, the appellant says that nothing suggested that the witness statements were untrue, and the contradictory fact relied upon by the Tribunal was the employment and educational achievements of the appellant.

279    Ground 2(d) goes to findings that the appellant was not a member of the OPC.

280    Ground 2(f) goes to the rejection of the letter from Dr Gudina concerning the appellant’s membership of the OPC.

281    Ground 2(h) goes to the finding that the appellant did not make a speech at TG’s funeral.

282    Grounds 2(a), (b) and (h) are concerned with the Tribunal’s findings concerning the factual claims relating to TG’s detention, death in jail and funeral. These findings are impugned as having no rational foundation or no evident and intelligible justification in circumstances where the Tribunal described the witness statements as not reliable and found it unnecessary to take oral evidence from all but one of the proffered witnesses in corroboration of facts material to the findings (particularly 113 and 127).

283    The appellant contends that Mr Nono and GG could speak directly to these events and other witnesses could describe things said to them by family members or community members which, although hearsay, were at least consistent with the evidence of the appellant, Mr Nono and GG. The Tribunal found the witness statements unreliable because they could not help the Tribunal to address the fundamental problem of the educational and employment factor compounded by the “age” issue mentioned earlier.

284    I accept that once the decision to treat the witness statements as not being reliable by reason of the employment and educational factor (recognising that the age issue by itself was not, and could not have been, decisive of the appellant’s credibility), coupled with the election, as a matter of discretion, not to obtain or investigate seeking to obtain, oral evidence from any of the witnesses but one (and especially from those witnesses who could speak directly to relevant facts concerning TG, his imprisonment and the funeral), is impugned, those decisions as steps along the way to the adverse findings at 127 also impugn the findings at 127.

285    As to Ground 2(h) specifically, it concerns a challenge to findings of implausibility in the appellant’s evidence concerning particular aspects of the funeral itself. Those findings are influenced by the Tribunal’s concern about the employment and educational factor and claims of the appellant, thought to be inherently irreconcilable with that factor. As to the specific findings, the Tribunal rejected the appellant’s explanation of the Tribunal’s concern about the events at the funeral.

286    The issue is this.

287    The appellant claims to have made a speech at TG’s funeral and claims to have done so against the background of the claims made concerning the treatment of TG. In the speech, he claims to have said the things described at [50] of these reasons, and in his supplementary statement he describes his emotional state when giving the speech: see [82] of these reasons. The Tribunal described the content of the statements the appellant claimed to have made as references to the “inhuman treatment” of TG and Oromos and that “dictators would be judged for their human rights violations”. The Tribunal put to the appellant that it would have difficulty accepting that he made such a speech when he was thought to have an association with the OLF and in circumstances where three police officers were present, taking into account the independent information about how harsh the treatment is, of OLF sympathisers. The explanation given by the appellant was that he had a prepared statement to be read at the burial service, there were about 250 people present, he did not see the police until reading the latter part of his statement when all the important things had already been said, and in any event, he was just telling the truth about TG having been beaten, mistreated and denied medical attention. He explained that his speech was not concerned with support for the OLF.

288    The Tribunal found the explanation “unconvincing” having taken into account the appellant’s submissions about his lack of judgment at the time and the response to “grief and torture”. However, the Tribunal found that the unlikelihood of the appellant having made a speech reflecting an “extremely high level of risk” (114), as “not decisive in itself” (114). The real difficulty for the Tribunal was the explanation given in the supplementary statement. As to that, the appellant said that when speaking, he saw the police and assumed that they were there to mourn TG (“as we had extended family who were members of the police force) and that he did not think that they were not “police spies”. The Tribunal considered that if TG had died of mistreatment at the hands of Ethiopian authorities and three police officers were present among 250 people, “this would have been something that would arouse the attention of those at the funeral”.

289    The Tribunal did “not find at all convincing” the appellant’s evidence that he was not aware of the three police until part-way through his speech and found “very much lacking in credibility” the suggestion that the police officers were thought to be mourners or that the appellant would not have appreciated the consequences of having made a speech as claimed, in front of those officers. The Tribunal found that “in its entirety”, “the applicant’s evidence about this event to be very much lacking in credibility”.

290    The appellant contends that it is arbitrary, irrational and unreasonable to “discount” the appellant’s evidence that he did not see the three police officers among 250 people at the funeral until towards the end of his speech and that their presence would have aroused the suspicion of those present such that the appellant would not have made the speech in the terms as claimed. The appellant contends that the reasoning fails to take account of the appellant’s emotional state of grief; that he was speaking for the family about TG; that he had no political affiliations at the time; and that he was not speaking about the OLF in any event.

291    However, notwithstanding all of these considerations, it was open to the Tribunal as a matter of merits-based analysis to reach the decision, on the evidence it chose to consider, as it did, as to the claims made concerning the content of the speech. The difficulty is that on reaching a conclusion about the particular event, informed as it must be by whether TG died as claimed, and whether the appellant gave, or was likely to have given, an emotional speech on behalf of the family as claimed, the Tribunal refused to turn to any of the corroborative evidence of the witnesses for any aspect of the factual integers which might have borne upon the factual findings, for all the reasons already given. Reaching the finding concerning the funeral is impugned by the impugned findings along the way to that finding.

292    As to Ground 2(d), the appellant contends that the finding that the appellant was not a member of the OPC because he did not disclose that matter in the visa application form was “legally” unreasonable in the jurisdictional error sense. The finding is said to be compounded by a mistranslation issue to which I will refer later in these reasons.

293    The Tribunal notes that at the hearing the appellant’s evidence “suggested” that he regarded membership of the OPC as a “very serious matter” and “very important” because of the impact it would have in “putting a person’s life at risk”: 136. The Tribunal’s language as just quoted is said to be a mistranslation. The Tribunal noted that at the hearing it put to the appellant that there had been “no mention whatsoever” of membership of the OPC or involvement in the activities of the OPC, in the claims set out in the visa application form of November 2013, although the Tribunal recognises that the claims are mentioned “after that”: 136. The appellant’s explanation was that there was not enough space on the form for his claims to be recited in full on the form and therefore he wrote on the form that he would provide his “full statement of harms I experienced in that country through my legal aid”: Question 44; [44] of these reasons; see also Questions 46, 47 and 48; [46]-[48] of these reasons.

294    The Tribunal noted the appellant’s evidence that although there was not enough space for his claims on the form, “he had so much more to say”: 136. The Tribunal notes that the appellant specifically mentioned being suspected of being a supporter of the OLF on the form but nothing about the OPC: 137. The Tribunal then notes (and this is said to go to a translation issue) this at 138:

The applicant’s evidence now suggests that he regards his membership of the OPC as being very, very significant to his case, and as giving rise to a risk that he will be killed. The Tribunal accepts that the applicant later expanded on his claims. However, it considers that his claim to be a member of, and involved in, the OPC was not one that was in any way contained in his visa application form. It does not accept that the size of the boxes provides a satisfactory explanation for this or that there is any other satisfactory explanation as to why, if he was a member of a political party and feared for his life because of that, he provided no indication of this membership or activity or its relevance in his protection visa application.

295    The Tribunal accepted that the appellant had made reference to the OPC issue in his statement of 11 March 2014 approximately four months after the November 2013 application: 138. Nevertheless, the Tribunal considered the references to membership of, and involvement in, the OPC, in the statement to be “new claims” raised only at that time: 138. The Tribunal did not accept that there was a satisfactory explanation for not mentioning, in any way, OPC related claims in response to questions on the form, if the claims were true. Thus, the Tribunal found the appellant’s claims in relation to the OPC matters to be untrue: 138.

296    The Minister contends that the reasoning of the Tribunal is orthodox and that it was entitled as a matter of merits-analysis on the question of whether it could be satisfied that the appellant was, or had been, from 2008, a member of, and engaged in the activities of, the OPC, to decide as it did. The Minister asks: would it not have been a simple and straightforward thing to say on the form in November 2013 in answer to one of the questions at Q45-Q48, “I fear harm because of my membership of the OPC”?

297    The answer to the late invention concern is said to be that on four occasions the appellant said that there would be a “full statement” coming; that the fear he wanted to convey on the form was a fear of being subjected to “torture, inhuman treatment and interrogation” and “detention” (which the appellant says “is the conduct he was focused upon”, not necessarily membership of the OPC, as membership of the OPC “is not illegal, though membership of other Oromo organisations, like the OLF, is”); and that, he provided his statement relatively early, by 11 March of the following year, before the delegate made the initial decision, and not in response to an adverse decision of the delegate so as to raise something new for review purposes.

298    The appellant put on a supplementary statement after the delegate’s decision by which he supplements paras 22 and 23 of the earlier statement dealing with the OPC matter. In the supplementary statement he says this:

I join the Oromo Peoples’ Congress (OPC)

24.    In 2006, I was employed by the Oromia Agricultural Research Institute, which was owned by the Oromia regional government. I had a good academic record and membership of the OPDO was not a criterion of employment. However I was concerned that they might try to find out information about me, so I told them that this was my first job so that they would not contact my former employer, Alage ATVET College, to ask questions about me and my background. When they asked me what I had been doing in the period since graduating from university, I replied that I had been working on my family farm.

25.    At the Institute I became friends with someone who was a member of the OPC.

26.    In 2008 he told me that the OPC was holding a conference and suggested that I attend. I went along and read the pamphlets that they distributed and listened to the speakers. I became very interested in the organisation. One of the objectives of the OPC is that Oromian natural resources should be utilised for the benefit of the Oromian people. Another was to make Oromian a working language of government in Ethiopia. And another is to establish a multi-party system where every ethnic group in Ethiopia can have a say in government decision making. It seemed to me that this was an organisation that was doing real work to help the Oromo people, and which seemed very aligned with my own personal political outlook.

27.    I became a member of the OPC. I did not tell anyone, though. I felt sure that if people knew I was a member of the OPC I would have lost my job and been denied other job opportunities. I continued to pretend to be politically neutral and make sure that as far as other people were concerned I appeared to be focused on my career.

Third detention - 2010

28.    As described in paragraphs 22-24 of my first statement, I studied for a postgraduate degree in science at Haramaya University from 2009-2011, and during this time remained active in the OPC.

29.    When I joined the OPC in 2008, I had kept my membership with the OPC as secret as I was afraid of losing my job with the [Institute] and further career opportunities. However, by 2010 when I was studying at Haramaya University, I was not employed, and I felt I was in an environment in which I was prepared to become more actively and publicly involved with the OPC. I was prepared at this stage to take more risk.

30.    In February 2010, the day after an OPC meeting which I had helped to organise, I was taken from my dormitory by the police and detained for the third time – this time for 5 days, during which I was again interrogated and beaten, as described in paragraph 23 of my first statement.

31.    When the police came to my dormitory, they first took me to their temporary office inside the university, told me to knee down, and beat me on my back with plastic sticks. They then took me to Harari police station.

32.    Spies from the police had known I was handing out pamphlets and talking to students. When the police interrogated me on my activities, I admitted I was a member of the OPC, that I had been organising OPC meetings and handing out pamphlets to students. Membership of the OPC is not illegal, though membership of other Oromo organisations, like the OLF, is. The police tried to get me to admit I was a member of the OLF, but I was able to truthfully deny that. The police then asked me about the contents of the OPC meetings and I told them what I knew. However, since it was not illegal to be a member of the OPC, the police could not charge me with anything. I was detained for 5 days but since I did not give the police anything which they could charge me with, they eventually let me go.

299    The submission of 29 February 2016 asserts that the appellant seeks protection from persecution that he says he will suffer should he return to Ethiopia, due to his political opinion as a member of the OPC and imputed political opinion as a suspected member of the outlawed OLF.

300    The submission emphasises the significant worsening situation for Oromo in Ethiopia in 2014 and escalating violence resulting in the death of eight people. The submission refers to specific examples of torture concerning a young girl, a teacher and a student: pp 5 and 6, (i), (ii) and (iii) AB 157 and 158, by reference to an Amnesty International 2014 Report concerning oppression in the Oromia region of Ethiopia. The appellant emphasises the observations at p 6 of the submission that throughout 2015 peaceful protests occurred in the Oromia region protesting the extension of the authority of Addis Ababa into Oromia and in November 2015 those protests became violent (with footnote references to the sources) with the result that “since early 2016 almost daily accounts of killing and arbitrary arrests have been reported”: citing Human Rights Watch, Ethiopia: No Let Up in Crackdown on Protests, February 2016.

301    The appellant also emphasises the matter put to the Tribunal in the submission concerning the treatment of students “being hung up by their wrists while they were whipped, and electronic shocks given to students’ feet … arbitrary detention and torture”: citing the February 2016 Human Rights Watch Report.

302    The appellant emphasises like matters and steps taken by security forces in targeting public figures as described at AB159 and AB160.

303    The appellant also emphasises the evidence he gave to the Tribunal in relation to the complementary protection claim that he had failed to comply with his police reporting obligations which, taken together with country information about the increasing incidents of serious violence and torture in Ethiopia of Oromo people (and particularly those thought to be prominent or influential), demonstrates that the appellant faces a real chance of suffering serious harm in the form of torture, cruel or inhuman punishment or treatment, and degrading punishment.

304    As to all of these matters, the appellant’s point is that the material makes it readily apparent that the appellant thought and believed that it was permissible for him to provide a full statement of his claims to the Minister’s delegate in a separate document with the appellant having had the benefit of legal advice. The appellant emphasises his four references to that matter on the form. The appellant contends that this was an understandable and rational approach to filling out the form.

305    There can be no doubt that a decision-maker is entitled to rely upon inconsistencies that emerge between, for example, things said by an applicant at one point in time either in a statement or a transcript of interview with the delegate, and later documents (including a further statement) and oral evidence given at a hearing, where the applicant departs in a material way from earlier versions of material facts or where, having had an opportunity to set out the scope of matters of concern to the applicant as a basis for a well-founded fear of persecution or a fear of a real risk of significant harm, the applicant subsequently asserts new factual matters as the basis for the contended fear.

306    The character and circumstances of the inconsistency are very important considerations where the merits-based reviewer seeks to rely upon the inconsistency, coupled with the failure of the applicant to adequately explain the inconsistency to the satisfaction of the reviewer, as a basis for finding the matters later raised by the applicant to be untrue.

307    Here, the appellant filled out the form and said at Q44 (and repeated the substance of the statement three additional times) that he would provide his “full statement of harms I experienced in that country through my legal aid”. Next, he did so by a statement put to the delegate that asserted the OPC matter. It is true that the appellant did not mention on the visa application form any fear of conduct on the part of government authorities due to his membership of the OPC. He could have done so but he did not.

308    Did his failure to do so in November 2013 provide a rational and legally reasonable basis for the Tribunal finding his claims concerning his membership of, and engagement with the OPC, to be untrue?

309    A matter of some relevance in answering that question is the evidence of Dr Gudina (see [99]-[103] of these reasons). Dr Gudina’s positions are described at [100] of these reasons. His statement has been described earlier. Dr Gudina says that the appellant became “our member” in 2008 and continued his association “with us” after he joined Haramaya University. Dr Gudina’s statement was put to the Tribunal on the basis of evidence supporting the appellant’s claims of membership of the OPC. The Tribunal was concerned, however, that the Gudina statement was not provided with the submissions of 29 February 2016 by Gilbert+Tobin. Mr Glass explained that the firm had had the statement since 2015 and the failure to provide it earlier was an oversight not of the appellant but by the firm. Yet, the Tribunal concluded that no satisfactory explanation had been provided as to why “membership documents” (the Gudina statement and the controversial membership card) were not produced until after the hearing: 144; see [104] of these reasons.

310    But, there was an entirely objectively satisfactory explanation given by Mr Glass: see [103] of these reasons.

311    That matter unreasonably cast doubt in the mind of the decision-maker about the reliability of the statement and as to the statement itself, the Tribunal was also concerned that it provided no detail of the coordinating committees on which the applicant says he served and no further detail of the nature of his involvement in the OPC. The Tribunal elected not to obtain any oral evidence from Dr Gudina.

312    The Tribunal’s finding that the appellant’s claims concerning the OPC matters were untrue was legally unreasonable as the finding lacked an evident and intelligible foundation having regard to these factors: the applicant foreshadowed on the form on four occasions that a full statement of harms would be provided once he had had the benefit of legal advice; the applicant provided a statement that raised the matter in his first statement of 11 March 2014 about four months after lodging the application form and before the delegate’s decision; the Gudina statement confirmed his membership of the party from 2008 and beyond, and the appellant’s engagement in committees which was an integer or fact going to the question of whether the appellant’s claims to hold the relevant state of fear by reason of his membership of the OPC was true or untrue; the reliability of the Gudina statement was called into question due to late production of the document notwithstanding that a satisfactory explanation had been provided by Gilbert+Tobin for not producing it earlier; and, in the face of a rejection of the entire truthfulness of the OPC claims on the basis that the claims were raised late by reason of the 11 March 2014 statement with no earlier mention of that matter on the form, the Tribunal elected not to obtain, or seek to obtain, any evidence from Dr Gudina who was willing to speak with the Tribunal (or any other witness who could speak to the applicant’s role in the OPC).

313    Having regard to all of those matters, in the very particular circumstances of this case, the Tribunal’s decision to treat the appellant’s OPC claims as untrue on the footing that the claim was not mentioned in the form filled out in November 2013, is impugned as lacking a rational foundation and is impugned as not “legally” reasonable as it lacked, in all the circumstances set out above, an evident and intelligible justification, especially having regard to the rejection of the objectively reasonable explanation by Mr Glass that the Gudina statement was held from 2015.

314    It is true that these facts do not, by themselves, go to the appellant’s state of mind in November 2013. However, they do provide a basis for determining whether it might be true that the appellant was a member of the OPC from 2008 and that if so, his assertion that he feared harm by reason of his membership of the OPC was a fear that he may have genuinely held due to OPC membership even though he did not say so on the form in November 2013.

315    The earlier observations also address Ground 2(f) which goes to the Tribunal’s finding that the Gudina statement/letter was not reliable.

316    As to that, the problem with the Gudina statement was said to be this at 148:

While it indicated that [the appellant] served the party “by coordinating various committees”, it provided no detail as to the nature of these committees and no further detail as to the nature of his involvement. It refers in general terms to the targeting of members and suggests that members and supporters, especially young members and supporters, are at risk. Nevertheless, it provides no information about the events that the applicant claims affected him. It does not refer, for instance, to his involvement in the 2010 election or his arrest, mistreatment and detention for five days in February 2010. Mr Gudina’s letter provides detail in relation to matters such as where the applicant worked at various times. It is not at all apparent why, if the applicant was an OPC member who had been specifically targeted for harm, this would not be reflected in a letter supporting his asylum case. This does not sit comfortably with his own claims. There are numerous other difficulties with the applicant’s evidence, including his evidence about his political involvement. In all the circumstances, the Tribunal does not accept that the applicant has in fact been a member of the OPC and does not accept the information in the letter as being reliable.

317    However, the letter was put to the Tribunal only on the issue of the applicant’s membership of the party organisation. For the reasons indicated above, the Tribunal rejected the statement as not being reliable and did not accept that the applicant had in fact been a member of the OPC. The Tribunal had, of course, taken the position that the late invention of the claim in the statement of 11 March 2014 suggested to it that the claims concerning the OPC were untrue. The Tribunal at 148 engages with that matter. For the reasons mentioned at [312], the finding is impugned.

Ground 3 – mistranslations

Background

318    Mr Marama Fufa Kufi is an accredited translator and interpreter of Oromo to English and English to Oromo with 11 years’ experience. His qualifications are set out at para 1 of his affidavit before the primary judge sworn 14 February 2017. Mr Kufi was provided by Gilbert+Tobin with two audio files containing relevant sections of the appellant’s evidence before the Tribunal. Mr Kufi was asked to listen to the audio files and note in a particular column of a schedule his translations of what was said in Oromo by the appellant, from Oromo to English. Mr Kufi was not cross-examined by the Minister on his affidavit and, accordingly, his expert evidence on the correct translation of the particular statements in Oromo to English must be taken to be accurate and correct.

319    As to the subject matter of the contentious transactions, the background is this.

320    The appellant’s evidence in his statements was that after his employment in the CASCAPE Project he used to travel to remote areas for work which involved conducting meetings with farmers for the purpose of scaling up improved agricultural technologies in regions of Ethiopia: see [66] of these reasons. His evidence was that in August 2013 he had been conducting farm surveys on 60 farm households in the Gurawa district and while at this location a dispute arose between the farming community and government authorities because farmers were being forced to participate in extended political meetings. The appellant says that he was forced to leave the site. He describes his 15 August 2013 arrest and detention event in the terms set out at [66] of these reasons. He says that on 4 September 2013, after release, he returned to the site. He finished his consultations for that day. He says that the next day the farmers told him that the persons who had followed him to the site were security forces in the district. The area of confusion in the oral evidence was whether the appellant’s evidence was that he continued to return each day to conduct consultations with the farmers or whether he ceased engagement with the farmers and undertook other duties until 30 September 2013 when he ceased engagement with the CASCAPE Project.

321    Against that background, the translation issues are these.

322    The first of the mistranslations is said to be this.

323    The appellant was asked by the Tribunal:

Did you go back to work in the Gurawa district after you were detained in August 2013?

324    The appellant’s answer as translated by Mr Kufi is:

I was at work. Even on 4 September, 2013 at Gurawa, they did it to me again.

325    However, that answer was not actually translated by the interpreter at the hearing because the interpreter said: “What did you say?” The appellant then said words which were translated by the interpreter at the hearing as:

Yeah these people were following me on the … this September 4 to September … late September, that was in Gurawa.

326    However, the appellant did not say “September 4 … to late September” but said, according to Mr Kufi, “even on September 4, 2013 those people followed me up at Gurawa”.

327    The appellant then said further things interpreted at the hearing as:

So it finally became impossible for me to continue my work so I stopped my work on 30th of September 2013.

328    The evidence given by the appellant as translated by Mr Kufi is:

I did not go regularly back to the area for work after that. I did not frequently go back for work. I stopped on September (voice unclear here) 2013 [a date which according to other evidence is 30 September 2013].

329    The Tribunal Member put this to the appellant:

But after you were released you went back to Gurawa and did the same sort of work that you claimed caused these problems in the first place in spite of being fearful for your life and I might have some difficulty accepting that that’s what happened, that you’d have these problems.

330    The appellant in response, said, according to Mr Kufi’s translation:

Yes then I went there though I was under huge fear. At that time I could not say I will not go there to work. Because, the project paid me good money. And also if I do not go and work I lose my job. Because I must go to work on that day I went there. When I went there I realised they were following me. After that I did not work there long. I left the area.

331    The Tribunal Member asked:

How were you able to do that job from the 4th of September to the 30th of September if that work had caused such great problems previously?

332    The appellant responded to that question and the interpreter at the hearing translated his answer as:

My job [I was worried about]. I was organising meetings with the local farmers collecting information that I needed for research, come back to the office, put information together and make reports [unclear] for the project.

333    Mr Kufi’s evidence is that the correct translation of the answer is:

I mean the work does not connect me with the farmers. My job was related to organising data and related duties. I did not have to communicate with people for this particular job (Note: words unclear in between here). I was gathering/collating evidence and writing reports in the office and I was working in related areas.

334    The appellant’s point is this.

335    The Tribunal is testing whether it can accept the appellant’s evidence of the fear he contends to hold as a well-founded fear of persecution (or fear of a real risk of significant harm) should he return to Ethiopia, in part grounded upon his experience of the arrest and detention in August 2013 arising out of his engagement with farmers on site in the Gurawa district. The Tribunal was testing that matter by asking him how he was able to do that work (that is, consultations with farmers in the Gurawa district in the period after release, from 4 September to 30 September when his role in the project ceased), when that work had “caused such great problems previously”. Mr Kufi notes the answer was that the appellant’s job did not require him to “connect” with farmers or “communicate with people” as his work was related to “organising data” and “related duties”. The answer translated at the hearing was that he was “organising meetings with local farmers” and “collecting information that I needed for research”.

336    These answers as translated at the hearing seemed odd to the Tribunal for a person who had just had the experience of the August arrest and detention as described at [66] of these reasons. The Minister says that the matter is more fundamental than that because the answer as translated by Mr Kufi shows that the appellant was trying to address the concerns of the Tribunal in a way that suggested that his role in the project, so far as it related to Gurawa, did not require him to engage with local farmers (with the result that there was no concern in returning to work), but that description of his role was inconsistent with the evidence he gave as to the consultations with farmers required by the role.

337    There is some force in the Minister’s submission. However, having regard to the transcript evidence, I am satisfied that the answer as translated by Mr Kufi ought to be understood as a response to the question put to the appellant about his conduct immediately after release and thus from the period 4 September to 30 September rather than a more broadly-based statement to the Tribunal about limitations in his role. His evidence plainly is, generally, that he was required to engage in consultations with farmers. His evidence about not connecting with farmers and not communicating with them seems to be, according to the translation evidence, an explanation of what he was doing after the experience of 4 September 2013 until he left the role on 30 September 2013.

338    The appellant’s contention is that from 4 September 2013 onwards, once he realised that he would continue to be watched, a fair reading of the actual evidence as identified by Mr Kufi is that he was saying that he was no longer connecting with farmers and was not communicating with them. On 30 September 2013, he gave up the job.

339    The findings of the Tribunal which engage with this topic are these. At 152, the Tribunal observes that it has considered the appellant’s claims and evidence about the difficulties while working with CASCAPE in 2013. The Tribunal explains some of the background matters in relation to the project. It explains some aspects of the events of 15 August 2013 as claimed. At 155, the Tribunal says this:

The applicant indicated, when asked, that he was afraid for his life after he was detained in August 2013. He said he was concerned and in great fear. He had to report to the local police every day. He described having to report to the police and tell them where he was going. He said the government would contact the other place and monitor his movements. He was in great fear. The applicant gave evidence to the effect that they assigned people to follow him and monitor him as he went to work and from work. On 4 September while he was working or going to his work two people on a motorbike were following him wherever he went. He said it would have been difficult for government agents to come to the meeting itself. They would hang around the meeting and later talk to the farmers and ask what the meeting was about and what they talked about. The farmers later approached him and told him people asked about him. He said this gave him the magnitude of the [government’s] suspicion against him and how his life was at risk at that time.

340    Against that background, the Tribunal also said this at 155:

When asked about whether he had gone back to work in the Gurawa district after being detained in August 2013, the applicant stated that, when those people were following him from 4 September until late September, it was in Gurawa. Finally it was impossible for him to continue his work so he stopped his work on 30 September. The Tribunal put to the applicant that it might have difficulty accepting what he had said about this. It put to him that he claimed that he had been detained and accused of things to do with the OLF and mobilising farmers and that he was detained for a period and beaten. He claimed that this made him fearful for his life. But after he was released he went back to Gurawa and did the same sort of work that he claimed caused him the problems in the first place in spite of being fearful for his life. The applicant stated that when he was sent to Gurawa his pay was quite good. He did not want to give up the job in spite of the difficulties. When he went there and found out the magnitude of the monitoring he did not continue for long. The Tribunal asked how was he able to do the work from 4 to 30 September if that work had caused such great problems previously. The applicant stated that his job was meetings with local farmers collecting information for research, coming back to the office and making reports for the project.

[emphasis added]

341    The appellant says that the reference at 155 to his going back to Gurawa and doing “the same sort of work” that caused him the problems in the first place and the statements in the last sentence to the effect that the applicant was doing that work from 4 to 30 September 2013 translated at the hearing as meeting with local farmers, collecting information for research and going back to the office does not accurately state the evidence which was that, in effect, from 4 September he ceased connecting or communicating with the farmers and undertook other duties until he left on 30 September 2013.

342    In other words, the Tribunal has pursued a line of inquiry on the basis of the mistranslation.

343    At 162, the Tribunal said this on this topic:

[T]he Tribunal considers that there is no satisfactory explanation as to why, if the claimed events had occurred, the applicant would go back into the field and do similar work and how he would in fact be able to do so until 30 September. … [T]he Tribunal does not accept that there is any satisfactory explanation as to why, if these events had occurred and he was fearful for his life, he went back to Gurawa and continued with his work there. Nor is there any satisfactory explanation as to how, if the applicant’s work had aroused such interest, caused him to be chased out and caused him to be accused of links to the OLF and involvement in mobilising farmers, the applicant then returned to work in Gurawa and worked until 30 September. The Tribunal finds the applicant’s claims and evidence about this matter to be very much lacking in credibility. It does not accept that he suffered any difficulties in connection with his work with CASCAPE. It does not accept that he in any way came to suspicion or was chased out, that his house was searched or his property taken, that he was arrested, detained or mistreated, or that he was in any way monitored. The Tribunal finds the applicant’s claims in relation to these matters to be lacking in credibility.

[emphasis added]

344    It can be seen that the Tribunal has regarded the mistranslated evidence that he was organising meetings with local farmers in the period 4 September 2013 to 30 September 2013 as a material consideration in reaching the credibility findings about the totality of the applicant’s evidence as to the 15 August 2013 event as claimed. Perhaps a correct translation could have made a difference. It may not have been decisive but it is not clear that a conclusion could be reached that the mistranslation could not have influenced the finding.

345    As to the other contended translation errors, I am not satisfied that they could have made a difference.

346    For all of the reasons indicated, the Tribunal fell into jurisdictional error.

347    To the extent that the primary judge thought otherwise, I would respectfully disagree and find error on the part of the primary judge.

348    The orders of the primary judge are to be set aside and the matter remitted to the Tribunal for determination having regard to these reasons.

Associate:

Dated:    21 December 2020