Federal Court of Australia

ABA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 544

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the appellant’s claim for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The decision under review was the Tribunal’s decision to affirm the decision of a delegate of the then Minister for Home Affairs (whose functions are now undertaken by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister)) not to grant the appellant a protection visa.

2    The appellant is a citizen of Afghanistan. He is a Tajik, and a Sunni Muslim. He left Afghanistan in 2001 with his wife and then five children (who were born in Afghanistan), travelling to Pakistan, then to Malaysia, and then to Indonesia, arriving in approximately April 2001. In Indonesia, the appellant and his wife had three more children.

3    In April 2011, the appellant returned to Malaysia, while his wife and children remained in Indonesia. In August 2011, the appellant was arrested in relation to people smuggling offences in Australia. In November 2012, he was extradited to Australia, where he was convicted of those offences and sentenced to a term of imprisonment. On 19 September 2018, while in prison, he lodged his application for a protection visa. On 4 November 2018, after release from prison, he was transferred to an immigration detention centre, where he remains.

4    In November 2012, the appellant’s wife, his eight children, and his mother-in-law (who arrived in Indonesia in 2011), travelled by boat to Christmas Island. On 29 January 2018, they were granted Safe Haven Enterprise visas.

The Tribunal

The hearing

5    The appellant appeared before the Tribunal, and gave evidence, on 22 November 2019. He was represented in the review by a registered migration agent, who also attended the hearing. The appellant gave his evidence through an interpreter. His wife and two daughters also gave evidence at the hearing.

The appellant’s claims

6    As characterised by the Tribunal, the appellant’s claims for protection were based on his ethnicity and his convictions for people smuggling offences.

7    The appellant’s evidence was that he came from a village in the province of Kapsia, very close to its capital, Mahmud-e-Eraqi. He said that he worked on family land growing sultana grapes. He was helped in this work by his father and three brothers.

8    The appellant gave an account of the Taliban occupying his village and his family land. He identified a Taliban commander—referred to in the Tribunal’s Decision Record as “commander Y”— who, the appellant said, killed his father.

9    The Tribunal questioned the appellant on this account, as revealed in the following paragraphs of the Decision Record:

13.    The applicant then gave evidence about the arrival of the Taliban in his village. He said that the Taliban killed his father. When asked if he witnessed that incident, the applicant said that he heard the sound of bullets and guns and thought that his father had been shot. He was sitting at home at that time and did not go outside in fear. He later saw his father’s body and saw bullet wounds all over it. When asked if the Taliban attacked him, the applicant said they came for him. He could not recall where he was when that happened. He thought that they had ‘maybe’ beaten him with a rifle. When asked if he was attacked only once, the applicant said that he could not recall. He thought he got a bullet in his head.

14.    When asked what it was like for him to live in his village under the rule of the Taliban, the applicant said that they came and occupied the village. Because their Islam was not the same as that followed by the applicant and the others in the village, the Taliban would grab, beat, imprison or even kill people there. The Tribunal asked the applicant whether the Taliban ever imprisoned him. In response, the applicant said that he ran away, because, had he stayed, they would have killed or imprisoned him. When asked why the Taliban would do that to him, the applicant said that in the area where he lived, Tajiks were the minority and the majority of the population was Pashtun.

15.    The applicant recalled a particular Taliban commander, ‘commander Y’, who caused trouble to him. When asked how commander Y did that, the applicant said that commander Y killed his father, occupied the family land and was pursuing the applicant to kill him. The Tribunal put to the applicant that it understood his evidence to be that he did not see his father being killed. The Tribunal asked the applicant how, therefore, he knew that commander Y killed his father. In response, the applicant said that commander Y occupied the family land and he was sure that Y also killed his father.

16.    With respect to the occupation of the family land, the applicant had earlier said that the farm land was taken over after he left Afghanistan in 2001. The Tribunal reminded the applicant of this and asked him how he was able to remain on his land until then if the Taliban had taken over his village. The Tribunal asked the applicant why the Taliban and commander Y did not just take his land off him straight away. In response, the applicant said that before the Taliban occupied the ‘whole city and everything’, he ran away to Pakistan (which the Tribunal understood to be a reference to him leaving Afghanistan in 2001).

17.    The Tribunal asked the applicant whether he was stating that the Taliban did not actually occupy his village up until the time he fled from Afghanistan. In response, the applicant said that was correct. The Tribunal put to the applicant that, according to country information, the Taliban took over Afghanistan in 1996. The Tribunal asked the applicant why, if that was the case, the Taliban did not occupy his village until he left Afghanistan in 2001. In response, the applicant said that the Taliban were engaged in a battle to occupy a city close to his province. The applicant said that this prevented the Taliban from taking over his own village until some time later.

18.    The Tribunal asked the applicant how the Taliban came to beat him and kill his father, if they did not occupy his village until 2001 when he left Afghanistan. In response, the applicant said that when his father was killed, the applicant escaped through the mountains with his wife and children and not by road. He said that if ‘it’ happened in the morning then he left in the afternoon. When asked if there was any other reason why commander Y wanted to harm him other than the fact that the applicant was Tajik, the applicant said that commander Y was powerful and could do whatever he wanted. The applicant said that he had been away from Afghanistan for almost 20 years and thought that commander Y had bodyguards.

19.     The Tribunal then asked the applicant what he was afraid would happen to him if he returned to his native village. In response, the applicant said that the Taliban was still alive and powerful. He said that he was poor and he would not be able to deal with them. He then said that the United States of America was trying to cooperate with the Taliban and the Taliban would kill him. When asked why the Taliban would kill him if he returned to Afghanistan, the applicant said that they would do that because of the events that occurred before he left Afghanistan.

10    On being asked whether there was any other reason he was afraid to return to Afghanistan, the appellant gave a number of reasons, which the Tribunal recorded in the following paragraphs of the Decision Record:

20.    The Tribunal asked the applicant whether there was any other reason he was afraid to return there. In response, the applicant said that because he had been in a foreign and western country the population of Afghanistan would think that he had changed his religion. When asked why they would take that view, the applicant said that it was because they were all illiterate. The Tribunal asked the applicant whether there was any other reason people in Afghanistan would think that he had changed his religion. In response, the applicant said that he was not sure.

21.    The applicant then said that he was a refugee in Australia and that was a reason he would be killed by Pashtuns in his native village. He again said that the majority of the people in his native village were Pashtuns. The Tribunal asked the applicant why those people would want to harm him for applying for protection in Australia. In response, the applicant said that his life was in danger. The Tribunal then asked the applicant whether there was any other ground on which he feared harm in Afghanistan. In response, the applicant said that he would suffer harm due to his criminal conviction which he said was well publicised, including, in social media and in Afghanistan.

22.    The applicant then said that this would be due to ‘his religion’. The Tribunal asked the applicant why his criminal conviction would cause people in his native village to harm him. In response, the applicant said that when people find out about his conviction they will think that he was responsible for smuggling hundreds or even thousands of Afghans to Western countries and that he was responsible for those Afghans changing their religion. When asked why people in his village would think that, the applicant said that they would see all about his conviction on social media and this was how they think.

23.    When again asked why they would think that the applicant had made the people he trafficked change their religion, he said that it was because most Afghans, when they came to Australia or a foreign country, changed their religion. He then said that if only one person changed their religion, people in his native village would think that hundreds of others who went to that country also changed their religion. The Tribunal asked the applicant to confirm what it understood to be his evidence that because he had trafficked Afghans to Australia, people in his village would think that those people had changed their religion and he was responsible for that. In response, the applicant said that was correct and that his own child had changed her religion. ...

11    I pause at this juncture to note that the appellant’s assertion that his own child—referred to in the Decision Record as “Z”—had changed her religion, was explored by the Tribunal in some detail. The appellant’s evidence on this topic was a significant matter which contributed to the Tribunal concluding that he, his wife and two daughters, who also gave evidence on this topic, were not witnesses of truth.

12    The Tribunal’s findings in this regard were the particular focus of the appellant’s application for judicial review in the Federal Circuit Court. These findings are also the particular focus of this appeal. It is appropriate therefore to turn to this topic now.

Findings on credit: Z’s conversion to Christianity

13    The context in which this issue arises is the appellant’s claim that, if he were to be returned to Afghanistan, he would suffer harm because his child, Z, had converted from Islam to Christianity.

14    The appellant’s evidence was that, just after he was released from prison and placed in detention—approximately six months before the Tribunal hearing—his son, who was Z’s twin, told him that Z had converted to Christianity about “three or four years ago”. According to the appellant, he was told this in response to him asking his son why Z had not visited him when he was imprisoned. When asked how he felt about Z’s conversion, the appellant said that it did not affect him much.

15    In response to further questioning by the Tribunal, the appellant said that he had not discussed Z’s conversion with his wife. The Tribunal considered this answer in the context of the appellant’s other evidence that his wife visited him every three or four weeks, and that he had discussed the matter with another son and another daughter. The appellant’s explanation for not discussing Z’s conversion with his wife was that his wife had been under too much pressure; she had gone through stress looking after the children; and she was unwell. The appellant also said that his reason for not discussing the matter with his wife was “economic”, but it is not clear what the appellant meant by this.

16    The Tribunal asked the appellant whether Z’s conversion from Islam to Christianity would cause him to suffer harm in his village. The appellant said that it would because the village would not accept it, and the lives of all members of his family would be endangered. At [44], the Decision Record continues:

44.     The Tribunal then asked the applicant why, if that was the case, he had not discussed this matter with his wife. In response, the applicant said that he had a plan to discuss it with her soon. When asked why he had not discussed it with her at an earlier stage, he said that they were both unwell, it would not be a pleasant conversation and he did not want to lose the whole family as well. The Tribunal put to the applicant that it had difficulty accepting that he had not discussed this matter with his wife, given his claim that Z’s conversion to Christianity placed him at risk of being harmed on return to Afghanistan. The Tribunal put to the applicant that if his daughter’s conversion really did place him at risk of harm, he would surely have discussed this with his wife. In response, the applicant said that he was going to tell his wife about it soon; he had not had the courage to do so at any earlier stage.

17    The Tribunal then turned to consider the appellant’s wife’s evidence on this topic:

45.    To the Tribunal, the applicant’s wife said that the whole family was at risk because Z changed her religion ‘three years ago’. She said that this brought shame on their respective families and relatives. She said this was not a small thing; it was a ‘big, big deal’. When asked how people in Afghanistan would know that her daughter had changed her religion, the applicant’s wife said that Z had ‘put this’ on social media. She said that if just one person found out then the news would spread around.

46.    The Tribunal put to the applicant’s wife that the applicant had told the Tribunal that he was aware that Z had changed her religion. In response, the applicant’s wife said that she had never told him about that because he was sick and had a stroke. She did not want to put pressure on him. The Tribunal put to the applicant’s wife that, according to the applicant’s evidence at the hearing, one of his sons told him about Z’s conversion approximately six months ago. In response, the applicant’s wife said that ‘maybe’, but, she did not know about that.

47.    The Tribunal then put to the applicant’s wife that, according to the applicant’s evidence, he had never discussed Z’s conversion with her. In response, the applicant’s wife said that was correct. The Tribunal put to the applicant’s wife that it had difficulty accepting that she and the applicant had never discussed their daughter’s change of religion, especially, when both of them were claiming that this placed the applicant at risk of harm in Afghanistan. In response, the applicant’s wife said that she was very scared as she felt responsible for her daughter. She just could not tell the applicant about it and she did not know what to do.

48.    The Tribunal asked the applicant’s wife whether she was aware that her children had told the applicant about Z’s conversion. In response, the applicant’s wife said that she was unaware of that. The Tribunal then asked the applicant’s wife when it was that she found out that the applicant knew of Z’s conversion. In response, the applicant’s wife said that she only found that out, at that very time in the hearing, when the Tribunal put that to her. The Tribunal put to the applicant’s wife that it had difficulty accepting that her children informed the applicant about their daughter’s conversion, but, did not tell her that they had had those discussions with the applicant. In response, the applicant’s wife said that she never told the applicant about Z’s conversion. She said that she told her children not to tell him about that.

18    Two of the appellant’s daughters—referred to in the Decision Record as AA and BB— also gave evidence on this topic:

49.    In her evidence, the Tribunal put to AA the applicant’s evidence that Z had converted to Christianity. In response, AA said that she knew that her sister had changed her religion. The Tribunal asked her when Z did that and, in response, AA said that she converted in 2017. When asked how she found out about that, AA said that her sister told her about that in an email. AA said that, from content Z made available in social media, AA could see that her sister was a Christian and that she had declared that in social media. The Tribunal asked AA whether she told her father that Z had changed her religion. In response, AA said that she had never discussed that with her father because of his health issues.

50.    In her evidence, BB indicated that she thought that the applicant was at risk in Afghanistan because Z had changed her religion. When asked if she had discussed Z’s change of religion with the applicant, BB said that she had not. When asked why she had not discussed it with him, BB said that it was due to his poor health as it would shock him. BB said that when she found out herself she was in shock and was mentally unstable due to her worry for the applicant. She said that in view of his health she did not want to give him any more reason to worry or cause him to have another stroke.

19    Following the hearing, the Tribunal invited the appellant to comment on, or respond to, its concerns about the evidence that had been given on this topic: s 424A of the Migration Act 1958 (Cth) (the Act). The Tribunal’s concerns, as communicated to the appellant, are summarised at [51] to [53] of the Decision Record.

20    In essence, the Tribunal said that it seemed to be highly improbable that the appellant and his wife had not discussed Z’s claimed conversion with each other, particularly when both claimed that Z’s conversion would place the appellant at risk of harm in Afghanistan. Further, the Tribunal said that it seemed to be highly improbable that the appellant was not told about Z’s claimed conversion until six months ago. Further still, the Tribunal said that it seemed to be highly improbable that, if the appellant genuinely feared harm on this ground, this claim was not raised until the Tribunal hearing, the appellant having applied for a protection visa over one year earlier.

21    The appellant provided a response, through his migration representative, on 10 December 2019. This response was to the effect that the appellant had been told of Z’s conversion by Z’s twin brother and another of the appellant’s sons. Neither son told their mother that they had done so. The appellant’s wife had told her children not to tell the appellant about Z’s conversion. The response said that the appellant and his wife had never discussed Z’s conversion because each did not want to worry the other “in view of both persons’ health and because it was a difficult issue”.

22    The response included submissions about “protective buffering” (said to be a condition in which unpleasant information is withheld from an individual by that individual’s spouse or partner to protect the person from stress). As the representative put it, the appellant and his wife were concerned about each other’s well-being, and wanted to spare each other “additional anxious, trauma, distress and shame” that might arise from sharing information about Z’s conversion.

23    The representative provided country information about the treatment of Christians in Afghanistan, and the risk of harm to Afghans who convert from Islam to Christianity. The representative also drew attention to the fact that, at the hearing, emails (in fact, an email) dated 24 December 2017, between Z and AA, had been submitted in which Z had stated that she had become a Christian. The Tribunal noted that these emails indicated that Z did not want to live with the appellant’s wife and her siblings.

24    The Tribunal’s consideration of this material did not assuage its concerns:

57.    The Tribunal has carefully considered the submissions made by the representative, the further information provided by the representative as well as the claims made by the applicant, his wife and daughters on this issue. However the submissions, information and claims do not resolve the Tribunal’s concerns. It was submitted that the applicant’s wife told her children not to tell father about Z’s conversion and this was why the applicant’s wife was unaware that, in fact, at least one of their children had told him about that. If it was the case that at least one of their children told the applicant about Z, the Tribunal still finds it highly improbable that the applicant’s wife did not know of that.

58.    Then there is the prime concern that the applicant’s wife was unaware that the applicant knew about the conversion and their claims that neither of them discussed that with each other. Essentially, their explanation for this is that they did not want to cause each other worry. However, if they were truly concerned for each other’s well-being and genuinely feared for the applicant’s safety due to his daughter’s conversion, they would have discussed that matter with each other. The Tribunal carefully considered the information provided about so-called protective buffering, but, the circumstances of this family are different from those presented in those materials. The Tribunal does not believe that the applicant’s wife would refrain from telling the applicant about his daughter’s change of religion to, in some way, ‘protect’ him.

59.    Further, if it is the case that the applicant’s daughter changed her religion in late 2017 as indicated in the emails submitted to the Tribunal or three years ago as the applicant claimed at the Tribunal hearing, it is highly improbable that he would not be told that until just six months prior to the Tribunal hearing. That is especially the case when the applicant applied for protection in September 2018 and when all witnesses are claiming that the daughter’s conversion places him at risk of harm in Afghanistan.

Findings on credit: contact with the appellant’s brothers

25    The Tribunal’s findings on credit were also informed by an inconsistency between the appellant’s evidence and aspects of his wife’s own application for a protection visa.

26    The appellant gave evidence that his three brothers helped him work on the family farm. According to the appellant, this was before “the war” (meaning, the arrival of the Taliban to his village). However, when “the war” started, the appellant said that he lost contact with his brothers. He did not know whether they had run away, or whether they had been killed by the Taliban, or whether they had simply disappeared. In any event, he said that he had had no contact with them since that time.

27    In relation to her own protection visa application, the appellant’s wife claimed to fear harm from the appellant’s brothers if she were returned to Afghanistan: they believed that she was responsible for the appellant’s incarceration in Australia; they believed that she allowed her children (particularly her daughters) to become infidels in Australia, bringing shame on the family; and they accused her of being a prostitute.

28    The appellant’s wife’s claims suggested that the appellant’s brothers were still in Afghanistan and in contact with her. The appellant’s evidence on this topic was in apparent conflict with these claims.

29    Following the hearing, the Tribunal invited the appellant to comment on, or respond to, its concerns about the appellant’s evidence that, since the Taliban occupied his village, he had not seen his brothers; that he had not had contact with them since that time; and that he did not know what had happened to them.

30    The appellant’s response was contained in his representative’s letter of 10 December 2019. The representative submitted that the appellant suffers from a mental impairment, partly from strokes he had suffered. According to the representative, this had resulted in the appellant suffering memory loss. The letter included a social worker’s summary of the appellant’s mental health, which reported that the appellant presents with, amongst other things, symptoms related to anxiety, fear, and post-traumatic stress. Other reports were submitted, including one from a psychologist dated 13 May 2016. This report provided background to a stroke suffered by the appellant in 2015 and the treatment the appellant had received for that stroke. The psychologist referred to the appellant suffering from memory loss, depression and anxiety.

31    Once again, the Tribunal’s consideration of this material did not assuage its concerns:

36.    In relation to this medical evidence, it is necessary for the Tribunal to state that the applicant appeared to be well able to comprehend the Tribunal’s questions and respond to them. The Tribunal is satisfied that he had a meaningful opportunity to participate in the hearing. The Tribunal has carefully considered all of this medical evidence, but, finds that this does not resolve the Tribunal’s concern. The claim being made that the applicant suffers from memory difficulties does not explain why, on the one hand, he claims he has had no contact with his brothers for many years, but, on the other hand, his wife claims that she has been in contact with them.

37.     Possibly they are claiming that his wife has not told him about this contact, but, the Tribunal finds such a claim highly improbable. The Tribunal does not accept the applicant’s wife would not tell the applicant about this contact with his brothers. Possibly they are claiming that his wife did tell him about this contact, but, he simply forgot about it. While the medical evidence might support the claim that the applicant has had difficulties with memory, it is highly improbable that he would forget that his wife had been in contact with his brothers, particularly, in the light of the accusations that she claims they made.

The Tribunal’s conclusions on credit

32    Taking these matters into account, the Tribunal found that the appellant and his wife were not witnesses of truth. Further, insofar as they purported to corroborate claims about Z’s conversion, and the discussions held with the appellant on that matter, the Tribunal found that AA and BB were not witnesses of truth.

33    The Tribunal was prepared to accept some of the appellant’s claims (noted at [61] to [62] of the Decision Record). However, the Tribunal concluded that there was no credible evidence as to what contact the appellant and his wife had had with the appellant’s brothers, of the brothers’ current circumstances.

34    Further, and importantly for this appeal, the Tribunal rejected the appellant’s claims about Z’s conversion:

64.     For the reasons given above, the Tribunal disbelieves the claims made that the applicant’s daughter has changed her religion; that this has been made public in any way; that the applicant and his wife never discussed their daughter’s conversion and that the applicant and his family genuinely perceive a risk of harm to him on that ground. As stated above, the Tribunal was provided with emails purportedly from this daughter in which she claimed to have changed her religion, but, as discussed above, that information does not overcome the concerns the Tribunal holds about this aspect of the applicant’s protection claims. Accordingly, the Tribunal does not give evidentiary weight to those documents.

(Footnotes omitted.)

Findings on claims

35    Having made its findings on credit, and having rejected the appellant’s claim based on Z’s conversion, the Tribunal turned to consider whether the appellant had a well-founded fear of persecution within the meaning of s 5J(1) of the Act based on other claims.

36    At [61] of its Decision Record, the Tribunal expressed its willingness to accept the appellant’s claims “about events in Afghanistan prior to and at the time of his departure from that country with respect to harm suffered at the hands of the Taliban and commander Y”. It accepted that these “agents” beat him, killed his father and took over the family land.

37    The Tribunal also accepted other claims made which the appellant made in a statutory declaration dated 15 August 2018—namely, that the Taliban killed his wife’s father and one of her brothers following their refusal to allow the appellant’s wife to marry commander Y, and that the Taliban threatened his wife.

38    The Tribunal considered the appellant’s claim to fear harm as a Tajik. The Tribunal also considered the appellant’s claims that the Taliban and commander Y have a presence in his local area such that he would suffer harm at their hands if returned to that area. After considering the available country information, the Tribunal found that the risk of the appellant suffering serious harm on these grounds was remote. At [73] of its Decision Record, the Tribunal recorded:

73.     The Tribunal discussed all of this country information with the applicant at the hearing and put to him the inferences which the Tribunal draws from that information. In response, the applicant said that he had no comment to make on that. Accordingly, the Tribunal finds that the inferences in question are correct and the risk of the applicant suffering serious harm in his native village due to his ethnicity, past instances of harm suffered when he was in Afghanistan at the hands of the Taliban and commander Y or due to the ongoing conflict is remote.

39    The Tribunal considered the risk of the appellant being prosecuted in Afghanistan for the offences for which he was convicted and imprisoned in Australia. After considering the available country information, the Tribunal found that the risk of the appellant suffering serious harm on this ground was remote. Once again, the Tribunal recorded that it had discussed this country information with the appellant. The Tribunal noted the appellant’s response that if an Afghan committed a crime in a Western country, that person would be in trouble in Afghanistan. The Tribunal was not persuaded by this response to depart from the available country information.

40    The Tribunal considered the appellant’s claim that he would suffer harm in Afghanistan because he had been in a Western country for a long time, which would cause people in Afghanistan to think that he had changed his religion. In conjunction with this claim, the Tribunal also considered the appellant’s claim that, because of his conviction for people smuggling, people in Afghanistan would think he had been responsible for those who had been smuggled changing their religion. The Tribunal noted that the appellant said that people who gave evidence at his trial said that they had changed their religion.

41    The Tribunal was not persuaded by these claims. Once again, based on country information, the Tribunal found that the risk of the appellant suffering serious harm in Afghanistan because he had been in Australia, because his wife and children lived in Australia as the holders of protection visas, and because he had been convicted of smuggling Afghans to a Western country, was remote. The Tribunal did not believe the appellant’s assertion that people at his trial had given evidence that they had changed their religion. The Tribunal referred to its finding that the appellant was not a witness of truth, noting that there was no evidence before it that confirmed his assertion. Moreover, the Tribunal noted that there was no evidence before it of anyone in Afghanistan seeking to harm the appellant on any of these grounds. It considered that the appellant’s claims that he would suffer serious harm on any or all of these grounds as “nothing more than bald speculation”. The Tribunal continued:

81.     At the hearing, the Tribunal discussed this country information with him and put to him the inferences that the Tribunal draws from that information. In response, the applicant said that he was taking 25 depression tablets each day and that medication was not available in Afghanistan. The applicant’s response does not refute the country information in question nor the inferences that the Tribunal draws from that information. The Tribunal finds that the risk of the applicant suffering serious harm due to his people smuggling conviction, his time in Australia, including incarceration, his family’s presence here as the holders of protection visas and the other related claims discussed above, is remote.

42    The Tribunal’s Decision Record shows that it considered a variety of other claims, but rejected them. It also considered a number of submissions made by the appellant’s representative, but was unpersuaded by them. It is not necessary for me to summarise all of these matters in these reasons. It is sufficient for me to note that the Tribunal appears to have dealt exhaustively and comprehensively with the appellant’s claims. In the end, it was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. For these reasons, the Tribunal affirmed the decision under review.

The Federal Circuit Court

43    The appellant advanced two grounds of judicial review.

The first ground

44    The first ground was that the Tribunal had made critical findings of fact that were “seriously lacking in foundation, rationality, and logical coherence in a way that rendered its decision to be legally unreasonable”. The appellant based this ground on the Tribunal’s findings in [63], [58], and [59] of its Decision Record.

45    As to [63], the appellant contended that the Tribunal’s findings that:

(a)    evidence from the appellant and his wife about the appellant’s brothers, their circumstances and contact with them, was inconsistent; and

(b)    the Tribunal had no credible evidence as to what contact the appellant had and his wife have had with his brothers and their current circumstances,

was based on a misunderstanding of the evidence from the appellant’s wife; unwarranted assumptions about the manner of communications between the appellant and his wife, and the reasons why they may not have discussed the issue; and a misunderstanding about the materiality of this issue.

46    As to [58], the appellant contended that the Tribunal’s finding that, if they were truly concerned for each other’s wellbeing and genuinely feared for the appellant’s safety due to Z’s conversion, the appellant and his wife would have discussed the matter with each other, was based on an unwarranted assumption about how spouses would communicate in the circumstances which existed at the time of the Tribunal’s decision.

47    As to [59], the appellant contended that the Tribunal’s finding, that it was highly improbable that the appellant would have been told of Z’s conversion until just six months prior to the Tribunal hearing, had no rational or evidentiary basis.

48    The primary judge considered this ground to be, in substance, an invitation to the Federal Circuit Court to engage in merits review of the Tribunal’s challenged findings. The primary judge considered the Tribunal’s adverse findings in relation to the credibility of the appellant, his wife and their daughters, to be open to the Tribunal for the reasons it gave. His Honour was not persuaded that the Tribunal’s decision was affected by jurisdictional error in this regard.

The second ground

49    The second ground of judicial review was that the Tribunal, without justification, failed to give weight to evidence provided by the appellant that corroborated the account that his daughter had converted from Islam to Christianity (namely, the email sent by Z to AA on 24 December 2017).

50    The primary judge also considered this ground to be, in substance, an invitation to the Federal Circuit Court to engage in merits review. His Honour was persuaded that the Tribunal had given real and meaningful engagement with the email but found that it was nevertheless open to the Tribunal, in circumstances where it had made adverse credibility findings, to place no weight on it. His Honour found that the Tribunal’s conclusion as to the weight to be placed on the email was not one that no reasonable decision-maker could make, and did not lack an evident and intelligible justification. Thus, his Honour was not persuaded that the Tribunal’s decision was affected by jurisdictional error in this regard.

51    In the result, the primary judge dismissed the application for judicial review, with costs.

The appeal

The grounds of appeal

52    The grounds of appeal are expressed as follows:

The Federal Circuit Court erred by failing to find that the second respondent.

(a)    Made critical findings of fact that were seriously lacking in foundation, rationality, and logical coherence in a way that rendered its decision to be legally unreasonable.

(b)    Without justification, failed to give weight to evidence provided by the appellant that corroborated the account that his daughter had converted from Islam to Christianity; namely, an email message written by his daughter to her sister in December 2017.

53    In the course of oral submissions, the appellant disavowed any challenge to the Tribunal’s credibility findings based on the apparent inconsistency between the appellant’s evidence concerning his last contact with his brothers, and the claims his wife had made in her own application for a protection visa.

54    The Tribunal’s treatment of the evidence in relation to Z’s conversion lies at the heart of the appeal.

Ground (a): the appellant’s submissions

55    In his written outline of submissions, the appellant submitted that the evidence given by him, his wife, and their two daughters, AA and BB, was “absolutely consistent in relation to this issue”, meaning Z’s conversion. He submitted that, in order to reject this evidence, the Tribunal had to find, as it did, that all four members of the family were lying. He submitted that the reasons relied on by the Tribunal for rejecting the evidence were “threadbare”, and “based on nothing more than speculation”.

56    In support of this submission, the appellant argued that there was no evidentiary basis to suggest that the dynamics of the appellant’s family were such that the family members would be forthcoming on the question of Z’s conversion. Indeed, in his written outline of submissions the appellant contended that the evidence pointed to the contrary conclusion: the family were intent on keeping the news of Z’s conversion from the appellant because of his poor mental and physical health; he, in turn, wanted to keep the news from his wife, to protect her.

57    Expressed in these terms, the appellant’s submission does not seem to be entirely accurate in that there is nothing in the material that shows any belief by the appellant that his wife did not already know of Z’s conversion and that he wanted to keep the news of Z’s conversion from her. The appellant’s evidence rose no higher than the fact that he had not discussed the matter with his wife because of the “pressure” she was under; that they were both unwell; that the conversation would not be “pleasant”; and that he “did not want to lose the whole family as well”. It is not clear what the appellant meant by this last comment. It was not explored by the Tribunal. Further, these responses from the appellant should also be seen in the context of the appellant’s evidence that Z’s conversion did not affect him much: if Z was happy, the appellant was happy.

58    The appellant submitted that the Tribunal’s “guesswork” about what the appellant’s family members would have divulged to each other about Z’s conversion cannot be justified as recourse to “ordinary human experience”: DBX16 v Minister for Immigration and Border Protection [2021] FCA 238 at [86]. He submitted that the lack of a logical or rational connection between the evidence and the adverse credibility findings was such that the decision was legally unreasonable.

Ground (a): analysis

59    The Tribunal made a series of interrelated findings on this issue, which were expressed in [64] of its Decision Record. Although expressed in terms of disbelief, they were, in substance, findings that Z had not converted from Islam to Christianity; that this claimed conversion had not been made public; and that the appellant and his family did not genuinely perceive a risk of harm to the appellant because of Z’s claimed conversion.

60    The Tribunal also disbelieved that the appellant and his wife had never discussed Z’s conversion. This finding is expressed somewhat oddly in the Decision Record. Its intended purport is not that the Tribunal disbelieved that the appellant and his wife had never discussed Z’s conversion. Rather, it seems to be an acceptance that the appellant and his wife had never discussed Z’s claimed conversion because Z had not converted and that they did not perceive a risk of harm to the appellant on the ground of Z’s conversion.

61    These findings were reached on the basis of (a) the Tribunal’s assessment of the explanations given by the appellant’s wife, and his daughters AA and BB, for not raising Z’s claimed conversion with the appellant over a substantial period of time, and (b) the appellant not raising the matter with his wife for a lesser, but also substantial, period of time—even though there was ample opportunity to do so, and even though Z’s claimed conversion was advanced as a reason for claiming that the appellant would be at risk of harm if returned to Afghanistan.

62    What is more, from the appellant’s perspective, his explanation for not raising the matter with his wife was given in circumstances where he had informed the Tribunal that Z’s claimed conversion had not affected him much personally. Further, there was nothing in the evidence (certainly from the appellant’s evidence) to suggest to the Tribunal that the appellant was labouring under the misapprehension that his wife did not also know of the claimed conversion. On the appellant’s evidence, he had, in fact, been told of Z’s conversion by one of his children. The Tribunal considered it to be highly improbable that the appellant’s wife would not have known of this communication, if it had been made.

63    These findings were also made after the Tribunal had raised its concerns about these explanations through the process required by s 424A of the Act, and after it had considered the material that the appellant, through his representative, had provided to the Tribunal by way of comment and response. Relevantly to this appeal, the material included two abstracts and a paper on “protective buffering”. This material was directed to “protective buffering” in respect of male post-myocardial infarction patients and their wives; among cancer patients and their wives; and within Australian Defence Force families experiencing parental deployment.

64    I observe that, in submitting this material, the representative did not suggest that the Tribunal should consider communications between Afghan family members in some special light. Indeed, to the contrary, the appellant, through his representative, obviously thought that the abstracts and papers on “protective buffering” were pertinent to the Tribunal’s concerns. The only family circumstance stressed by the representative was that, because the appellant, through his imprisonment and detention for more than eight years, had been isolated from his family, it was:

... understandable that confronting big issues that involve family members are handled differently when family members who are separated by circumstances outside their control than within intact families whose members share living together under the one roof.

65    The material before the Tribunal included what was said to be an email from Z to AA, dated 24 December 2017, in which Z is said to have written that she was a Christian and indicated that she did not wish to live with the appellant’s wife and her (Z’s) siblings, and country information concerning the treatment of Christians in Afghanistan and the risk of harm to Afghans who convert from Islam to Christianity.

66    There is no complaint that the Tribunal did not give proper and genuine consideration to all the material provided to it, including in response to the s 424A notice. The simple fact is that, after considering this material, the Tribunal did not feel that its concerns had been resolved. Had Z converted, as had been claimed, the Tribunal did not believe, for the reasons it gave, that this would not have been discussed between the appellant and his wife. This led the Tribunal to conclude not only that the appellant did not genuinely perceive a risk of harm based on Z’s conversion, but that, in fact, Z had not converted from Islam to Christianity.

67    Beyond contesting the primary judge’s ultimate rejection of the first ground of review, the appellant did not identify specific error in the primary judge’s findings and conclusions in relation to this issue. I am not persuaded that the primary judge erred in finding that the Tribunal’s decision was not affected by jurisdictional error on this ground. Indeed, the primary judge was correct to observe that, in substance, the appellant was inviting the Federal Circuit Court to engage in merits review of the Tribunal’s findings on credit in relation to the evidence given in respect of Z’s claimed conversion.

68    Findings as to credit are not immune from judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37] – [38]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [32]. However, as with judicial review challenges to other findings of fact, a party challenging a finding on credit must satisfy a high standard in order to establish that the finding is the manifestation of legal unreasonableness, and thus the source of jurisdictional error.

69    I do not accept that the Tribunal’s reasoning in relation to its findings on credit in relation to Z’s claimed conversion is, as Ground (a) of the notice of appeal contends, seriously lacking in foundation, rationality, and logical coherence. On the other hand, I do accept that the evidence before the Tribunal was capable of justifying different findings on credit that were favourable to the appellant’s claims. But the availability of competing findings on credit does not mean that the Tribunal erred in the exercise of its jurisdiction because it reached findings that were adverse to the appellant’s claims: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131] (Crennan and Bell JJ); [78] (Heydon J).

70    For these reasons, the appellant has not established Ground (a) of the appeal.

Ground (b): the appellant’s submissions

71    This ground of appeal is closely related to Ground (a).

72    The Tribunal disbelieved the claim that Z had converted from Islam to Christianity. The Tribunal noted that it had been provided with the email purportedly from Z, in which the claim was made. The Tribunal concluded that this information did not overcome its concerns and said that it did not give “evidentiary weight” to the email: Decision Record [64].

73    In his written outline of submissions, the appellant submitted that the Tribunal rejected the email “out of hand”. He submitted that the Tribunal’s “flawed findings on credit” in relation to Z’s claimed conversion provided “no justification” for not giving weight to the email.

Ground (b): analysis

74    I do not accept that the Tribunal rejected the email “out of hand”. The Decision Record shows that the Tribunal had regard to that document. However, in light of the matters analysed at [38] to [59] of the Decision Record, the Tribunal was not prepared to believe that Z had, in fact, converted—the contents of the email notwithstanding.

75    I am not persuaded that the Tribunal erred by not giving “evidentiary weight” to the email. The Tribunal’s conclusion was, in substance, a rejection of the truth of the unverified contents of the email insofar as the email advanced the proposition that Z had, in fact, converted to Christianity. That rejection was informed by the Tribunal’s conclusion that, had Z in fact converted to Christianity, then this would have been a matter of discussion at least between the appellant and his wife given the importance which came to be placed on that matter in relation to the appellant’s claims for protection. The email did no more than assert, and gave no greater credence to, a fact which the Tribunal did not consider to be plausible in the circumstances.

76    Plainly, the appellant’s submission is based on an acceptance that the Tribunal’s credit findings were “flawed”. The primary judge was not persuaded that these findings were “flawed”, and I am not persuaded that the primary judge erred in so finding.

77    It follows that the appellant has not established Ground (b) of the appeal.

Disposition

78    The grounds of appeal have not been established. It follows that the appeal must be dismissed. The appellant should pay the Minister’s costs.

Associate:

Dated:    24 May 2021