Federal Court of Australia

EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1451

ORDERS

THE COURT ORDERS THAT:

1.    The amended notice of appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

HALLEY J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): see EWH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 618. The primary judge dismissed an application for review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 October 2020. In that decision, the Tribunal affirmed the earlier decision of a delegate of the Minister for Home Affairs (Delegate) on 29 June 2020 to refuse to grant the appellant’s protection (Class XA) visa application pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act).

2    For the reasons outlined below, the appeal is to be dismissed.

Factual Background and procedural history

Circumstances of the protection visa application

3    The appellant was born in Liberia in 1999, and is a citizen of that country. He departed from Liberia for Guinea in 2003 and lived there until he moved to Australia in 2012.

4    On 23 March 2012, the appellant was granted a subclass 801 Visa.

5    On 20 June 2018, the appellant’s visa was cancelled under s 501(3A) of the Migration Act.

6    On 12 October 2018, the appellant applied for a protection (Class XA) visa (Visa Application).

7    On 29 June 2020, the Delegate refused the Visa Application.

8    The primary matter that the appellant relied upon in support of his Visa Application was a fear of persecution by his extended family if he were to return to Liberia because of the conversion by his grandmother and father to Christianity from Voodoo. On 6 January 1996, the appellant’s grandmother and her children had formally become members of the Tubman Memorial United Methodist Church.

9    The appellant claimed that three of his grand uncles are Voodoo priests and witch doctors and three of his grand aunts are Voodoo priestesses and witch doctors. He submits that two of his uncles (a grand uncle being his grandmother’s step brother and an uncle being his grandmother’s son) were killed by his grand uncles. The appellant claimed that his extended family also placed Voodoo spells on family members. The appellant claims that in 1979 one of his uncles was killed by his grand uncles by the use of a Voodoo curse by obtaining a “dragon (snake or a lizard) to drain my [Uncle’s] blood” and that on 10 July 2003, members of his extended family invaded his family home and murdered his uncle and grand uncle.

10    The appellant claimed that his grand uncles had threatened his family that if they did not abandon Christianity and return to Voodoo they would “kidnap, beat, rape and sacrifice us to a pagan deity and eat our dead bodies”.

11    The appellant also claimed that he would be persecuted if he returned to Liberia because he has an Americo-Liberian surname, he would not be able to relocate to Liberia because he would not be welcome in any area outside his home area due to tribal tensions following the Liberian civil war, he would not be able to subsist or find employment, he cannot speak creole or pidgin English and he would suffer harm due to his speech impediment and mental health issues.

12    The appellant applied to the Tribunal for a review of the Delegate’s decision.

13    On 23 October 2020, the Tribunal affirmed the Delegate’s decision to refuse the Visa Application.

Decision of the Tribunal

14    The Tribunal stated that the appellant’s claims were based on his grandmother’s assertions that her relatives had turned on her when she abandoned Voodoo and turned to Christianity.

15    The Tribunal noted that the appellant had been born after his immediate family had converted to Christianity and he had left Liberia 17 years ago at the age of four. The Tribunal stated that country information indicated that Liberia was predominately Christian but many people continued to practice Voodoo. The Tribunal found that:

Whilst there is evidence that ritualistic killings do occur, they are primarily aimed at people assuming power or the need for power and there is no country information that ritual killings occur within families who are exacting revenge for a conversion to Christianity.

16    The Tribunal did not accept that the appellant’s grand uncle and uncle were killed by his extended family. It noted that their death certificates only indicated that they had “died from bullet wounds”. The Tribunal referred to the claim by the appellant’s representative that the uncles had “body parts missing and that the police do not report that on the death certificates.”

17    In the course of the hearing before the Tribunal the appellant sought to rely on two news articles that had not been provided to the Delegate that referred to the death of the appellant’s grand uncle and uncle in July 2003. Both articles linked their murder to a refusal to engage in “traditional ritualistic practices” and reported that essential body parts had been extracted. Both articles on their face appeared to be printed from the internet. One was dated 17 October 2012 and the other was undated. The Tribunal stated that it was unable to locate either of the articles on the internet or any other news articles on their deaths.

18    The Tribunal, however, stated that:

… it was able to access news articles on ritualistic killings and considers that it is widely reported when it happens. The deaths also occurred towards the end of the civil war which ended in August of 2003. Violence was rampant during the war.

19    The Tribunal referred to a declaration that it had received from Robert Lee Tolbert, the son of a former President of Liberia who had been assassinated in April 1990, in which he outlined ritualistic killings and the difficulties of eradicating them from Liberia. The Tribunal also noted, without any further comment, that it had received letters from a Martha Johnston in Liberia and a minister from the Tubman Memorial United Methodist Church in Liberia.

20    The Tribunal noted that the appellant had claimed that his family fled to Bushrod Island in 1997 for their own protection and that Bushrod Island was an isolated area of the capital Monrovia and difficult to access. As a result of its own internet searches, the Tribunal determined that Bushrod Island was not remote, finding:

Bushrod Island contains the national port of Liberia, government buildings and residential areas. It is connected by road and bridge and is in no way a remote area or difficult to access.

21    The Tribunal considered that the appellant’s claims of persecution based on his family’s conversion to Christianity were not supported by the evidence as:

there are no reports of societal abuses or discrimination based on a person’s religion or religious conversion. If converting to Christianity meant people were being persecuted this would be reported in country information.

22    The Tribunal concluded that there was no information before it that indicated that the appellant, who had not been in Liberia since he was four years old, would be targeted for his religion by his extended family after such a long time.

23    The Tribunal ultimately concluded at [74] of its decision:

For the reasons above, combined with the Tribunals findings on country information the Tribunal does not accept that if the applicant returned to Liberia he faces a real chance of persecution from his extended family or their associates based on his religion or any other reason.

FCCA determination

24    The appellant sought a judicial review by the FCCA of the decision of the Tribunal pursuant to s 476 of the Migration Act. The appellant relied on two grounds of review. First, the Tribunal constructively failed in its duty to review corroborating evidence of the appellant. Second, the Tribunal’s finding that associates of the appellant’s father could assist the appellant to settle in Liberia, if he were removed to that country, was an unwarranted assumption which lacked any evidentiary foundation.

25    On 29 March 2021, the FCCA dismissed the appellant’s application for judicial review of the decision of the Tribunal. The primary judge determined that there was no jurisdictional error in relation to any of the five particulars of the first ground. The primary judge concluded at J[10] that:

There was no failure to have a real and meaningful intellectual engagement with the applicant’s claims and evidence as alleged in ground 1(a), nor was the finding by the Tribunal in respect of the wide reporting of ritualistic killings unreasonable or irrational or one that could be said to lack an evident and intelligible justification. It was for the applicant, under s 5AAA of the Act, to provide sufficient evidence to establish the applicant’s claims. The Tribunal’s adverse findings in paragraph 35 and 36 of its reasons are not findings to which no reasonable decision maker could come. No failure to take into account corroborating material is made out.

26    The primary judge concluded at J[13] that the Tribunal’s rejection of the proposition that Bushrod Island was not remote was “logical, rational and open on the material” before it and the alleged corroborating evidence was not of a kind that required express findings by the Tribunal.

27    More generally, the primary judge observed at J[20] that:

The Tribunal relevantly found that the applicant did not meet the criteria for the grant of a Protection visa, and the Tribunal’s reasons reflect a thorough and genuine intellectual engagement with the whole of the applicant’s claims and evidence, and the making of adverse findings were open for the reasons given by the Tribunal. No failure to take into account corroborating material is made out.

28    The primary judge did not accept that the second ground had been established. His Honour found, at J[25], that the finding that the appellant’s father had friends and associates that would endeavour to assist the appellant on his return to Liberia was “logical, rational and open for the reasons given by the Tribunal”.

Appeal

29    The appellant relies on the following grounds in his amended notice of appeal:

Ground 1

1.    The Federal Circuit Court erred in finding that the Second Respondent (Tribunal) did not constructively fail in its duty to review the corroborating evidence of the appellant.

Particulars

a.    The appellant provided two newspaper articles which corroborated his claims that his grand-uncles were killed by way of Liberian ritualistic killings on Bushrod Island in 2012 because they would not participate in the traditional Voodoo practices of their family, and that his grandmother feared that she and her children would be targeted next.

b.    The Tribunal unreasonably and/or irrationally rejected the aforementioned corroborating evidence on the basis that it could not find these articles on the internet, which recorded killings that occurred 8 years ago.

c.    The appellant provided corroborating evidence from witnesses that the appellant’s grandmother and her family (including the appellant) were advised to relocate to Bushrod Island, a hard to get to location, in order to hide from her family that threatened them with Voodoo ritualistic practices.

d.    The Tribunal unreasonably and/or irrationally rejected the aforementioned corroborating evidence on the basis that it did its own internet search on google maps and found that Bushrod Island was not a remote location.

e.    The Tribunal found that if converting to Christianity meant people were being persecuted that this would be reported in country information, but it was not. However, the Tribunal failed to provide an active intellectual engagement with and/or give a real, genuine and proper consideration to the following corroborating evidence:

i.    the statutory declaration of Robert Lee Talbert, the son of a former president of Liberia, who attested that revenge killings for converting from Voodoo to Christianity or Islam occurred in Liberia but were not well publicised; and

ii.    a report of Amnesty International stating that traditional ritualistic practices in Liberia were regularly forced on others without their consent, and that the police could not adequately investigate the crimes, including murder.

f.    The primary judge failed to provide an intellectual engage[ment] with the arguments being put.

i.    In respect to Particulars a. and b. above, the Tribunal was wrong to reject the corroborating evidence of the newspapers based on its own unwarranted assumption.

ii.    In respect to Particulars c. and d. above, the Tribunal was wrong to dismiss the eye-witness testimonies of 4 witnesses without providing an active intellectual engagement and/or real, genuine and proper consideration to the evidence of those witnesses.

iii.    In respect to Particular e. above, the two pieces of corroborating evidence supported the appellant’s fear of persecution for converting from Voodoo to Christianity, however the primary judge failed to explain how by ignoring them, the Tribunal did not commit jurisdictional error.

Ground 2

2.    The Federal Circuit Court erred by:

a.    finding that the Tribunal did not err by finding that the associates of the appellant’s father could assist the appellant to settle, if he returned to Liberia, as this was an unwarranted assumption which lacked any evidentiary foundation; and

b.    failing to grapple with the argument advanced that the appellant’s father, whilst aware that some of his relatives were alive in Liberia, only communicated with an old school friend in Liberia and the Tribunal made an unwarranted personal assumption that that person would help settle the appellant.

Consideration

Relevant principles

30    An administrative decision maker is required to engage in what has been described by the Full Court in a number of recent cases as “an active intellectual process” with the “relevant matters or criteria”: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [35], [46] (Griffiths, White and Bromwich JJ); CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131; [2019] FCAFC 155 at [76] (Allsop CJ, Kenny and Snaden JJ).

31    Illogicality and irrationality do not solely arise in respect of a decision maker’s ultimate conclusion or in respect of the decision itself. They may also arise in respect of subsidiary findings or reasoning leading to that conclusion, albeit that the overarching question is whether the decision itself is affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT and Another (2013) 212 FCR 99; [2013] FCA 317 at [150]-[156] (Robertson J); ARG15 and Others v Minister for Immigration and Border Protection and Another (2016) 250 FCR 109; [2016] FCAFC 174 at [47] (Griffiths, Perry and Bromwich JJ); CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [58]-[61] (Murphy, Mortimer and O’Callaghan JJ); and the cases referred to therein in each of these references.

32    In order for the appellant to succeed on his unreasonableness and irrationality contentions it would be necessary for him to show that the Tribunal’s decision to affirm the Delegate’s decision to refuse the Visa Application was one which no rational or logical decision maker could have arrived at on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [130].

33    The relevant question is “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”; that is, whether “[o]n the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal”: SZMDS at [133] and [135]. If a logical or rational decision maker could have done so, the relevant findings will not be illogical or irrational, even if one may emphatically disagree with the Tribunal’s reasoning: SZMDS at [124], [131] and [135].

34    Nevertheless a decision may be affected by jurisdictional error on the basis of illogicality or irrationality where “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”: SZMDS at [130]-[133] (Crennan and Bell JJ). This may arise where, for example, a decision maker relies upon “unexpressed and unwarranted assumptions not based in any evidence”: DAO16 v Minister for Immigration and Border Protection and Another (2018) 258 FCR 175; [2018] FCAFC 2 at [45] (Kenny, Kerr and Perry JJ).

35    Findings require a probative basis and “some intellectual engagement that is beyond stereotyping and speculation”: DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [53] (Bromberg, Mortimer and Snaden JJ). Inviting an applicant for a protection visa to speculate on the motivations, reasons or circumstances of a third party in the applicant’s country of nationality may be unlikely to produce probative material. Further, seeking to contrast that invited speculation against speculation of the Tribunal itself in order to reach findings would constitute no more than conjecture on the part of the Tribunal: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [45]-[47] (Mortimer J).

36    Further, the existence of error is not sufficient to establish jurisdictional error. It is also necessary to establish materiality. An error is only material if there is a realistic possibility that the decision in fact made could have been different had the error not occurred: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [45] (Bell, Gageler and Keane JJ); CRL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 917 at [71], [83] (Stewart J). A majority of the High Court recently declined to revisit the explanation of materiality in SZMTA, describing it as “sound in principle and consistent with precedent”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

Ground 1

37    Each of the six particulars to Ground 1 of the notice of appeal are ultimately directed at the Tribunal’s rejection of the claim sought to be advanced by the appellant that by reason of his family’s conversion from Voodooism to Christianity, he faced a well-founded fear of persecution; or alternatively there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Liberia, there was a real risk of him suffering significant harm. The Tribunal addressed this claim at [31] to [40] of its decision.

Two news articles (Ground 1(a) and (b))

38    Particulars (a) and (b) to Ground 1 are directed at the Tribunal’s rejection of the two news articles as corroborating evidence of his claims that his grand uncle and uncle were killed by way of ritualistic killings on Bushrod Island in 2003.

39    The appellant submits that the Tribunal’s reasoning for rejecting or placing limited weight on the corroborating evidence in the two news articles was based on two unwarranted assumptions. First, an assumption that the media in Liberia widely reported on ritualistic Voodoo practices. The only basis disclosed for this assumption was that the Tribunal had found media reports on ritualistic Voodoo killings on the internet and therefore concluded that it was “widely reported”. Second, an assumption that the two news articles would still be available on the internet, leading to the “false premise that if no news articles on the two deaths resulted from its own internet search then it must mean the event did not occur”. The appellant submitted that the Tribunal effectively rejected the articles as being fraudulent, and stated that it was “pure speculation” for the Tribunal to conclude that if it could not find the news articles in its own internet search then the appellant should not be believed.

40    The appellant submits that the Tribunal made no attempt to engage with the two news articles. He contends that the Tribunal did not analyse their content (only noting that one was undated and this was inconsistent with it being authentic), did not question the appellant about the articles and did not refer to any country information about false news articles originating from Liberia. He also contends that the Tribunal ignored the fact that the names, date and details of the circumstances of the killings were consistent with his claims. Ultimately, the appellant submits that by “merely measuring the news articles against its own speculation, and basing its disbelief upon unwarranted assumptions, the Tribunal acted unreasonably”.

41    The Minister submits that the first article has no masthead indicating its publisher, no by-line, is undated and refers only to anonymous sources other than the appellant’s grandmother. He submits that the second article has conflicting dates and is cut-off after the first page.

42    The Minister submits that it is not apparent why the Tribunal would not be concerned about the provenance of the articles given the matters outlined above and that it could not find the media articles on the internet, particularly given that the appellant’s migration agent had advised the Tribunal only a few weeks before its decision that he had “found” the articles. The Minister submits that an inference reasonably available is that the migration agent had only recently found them, particularly given they were not made available to the Delegate.

43    The Minister otherwise submits that it was for the appellant to establish his claim, that he had failed to satisfy the Tribunal of his claims and that there was nothing impermissible in the Tribunal’s reasoning that, because it was able to access other news articles on ritual killings, it could conclude that such killings do get reported.

44    On balance, I do not accept the appellant’s submissions. The submissions advanced by the appellant are essentially directed at a merits review.

45    The appellant sought to rely on the two news articles as evidence corroborating his claim that his grand uncle and uncle were killed because of his family’s conversion to Christianity and to support his claim that he faced death or serious harm if he returned to Liberia.

46    The Tribunal plainly chose to give the two news articles little or no weight.

47    I accept that it does not logically follow that wide reporting of a matter means that every, or even the majority, of instances of that matter would be reported, or that if it is not possible to now locate a copies of those media articles on the internet, that this necessarily raises a material doubt as to their authenticity.

48    Having said that, no jurisdictional error is established in circumstances where the Tribunal has preferred some evidence over other evidence. In order to establish jurisdictional error, the appellant would need to establish that the Tribunal had failed to engage intellectually with the appellant’s claim that he would face harm if he were returned to Liberia by reason of his family’s conversion to Christianity.

49    In the course of addressing that claim, the Tribunal did refer to the two news articles. It did more than merely “note” the existence of the two news articles: cf Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [43(a)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

50    Here, the Tribunal provided a reason why it gave the articles little or no weight. The reason given was that the Tribunal had been able to access news articles on the internet about ritualistic killing towards the end of the civil war in August 2003, but had not been able to access any news articles on the deaths of the appellant’s grand uncle and uncle. This included not being able to locate copies of the two news articles relied upon by the appellant.

51    Moreover, the reasoning of the Tribunal in relation to the two news articles has to be read as a whole, in particular, the significance of, first, the fact that the appellant had been born after the family had converted to Christianity and had therefore been born into Christianity rather than converted to Christianity, and second, the 2015 “crackdown” on voodoo and ritualistic deaths ordered by the then President of Liberia, well after the date or apparent dates of the news articles.

52    I do not accept that the internet searches conducted by the Tribunal from which it concluded that “there are no reports of societal abuses or discrimination based on a person’s religion or religious conversion”, contrary to the appellant’s submissions, can be dismissed as “its own speculation”. The correct perspective is not whether the Court considers that the decision was unreasonable but rather whether a decision-maker could reasonably come to the conclusion: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [21] (Allsop CJ).

53    I am satisfied that a reasonable decision maker addressing the claim that the appellant’s family’s conversion to Christianity exposed the appellant to the risk of persecution or serious harm could have preferred its recent internet searches over the historical unsourced corroboration of the causes of the deaths of the appellant’s grand uncle and uncle in 2003 provided in the two news articles, bearing in mind that the person or persons providing the alleged corroboration are not identified in the articles.

Remote Location (Ground 1(c) and (d))

54    Particulars (c) and (d) to Ground 1 are directed at the Tribunal’s alleged unreasonable dismissal of corroborating evidence from four “eyewitnesses” to support the appellant’s claim that his grandmother and her family were advised to relocate to Bushrod Island, which was alleged to be “a hard to get to location in the capital”, in order to hide from her extended family. The evidence of Ms Johnson was directed at the need to relocate to the “remote” location of Bushrod Island. The evidence of the other three eyewitnesses was not more specific than Bushrod Island was an “isolated place” and “hard to get to”. The Tribunal did not accept that Bushrod Island was remote. It relied on the information that it had obtained from Britannica.com and Google Maps that indicated the island was connected by “road and bridge”, had government buildings and was the national port of Liberia.

55    The Tribunal is inquisitorial and may rely on any information it considers relevant and by any means it considers appropriate: Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; [2009] HCA 30 at [4] (French CJ, Heydon, Crennan, Kiefel and Bell JJ).

56    The relevance of the Tribunal’s finding that Bushrod Island was not “remote” to its reasoning, in context, would appear to be that it raises doubt that the relocation of the appellant’s family was in fact driven by a fear of ritualistic killings.

57    The critical issue would appear to be whether the appellant’s grandmother and her family relocated to the island in order to avoid detection from her extended family, not whether Bushrod Island is an “isolated place” and “hard to get to”. It does not logically follow, however, that if an island was accessible by “bridge and road” or was otherwise not “remote” that the appellant’s claim that his family relocated to the island to avoid persecution is unfounded. Further, descriptions such as “isolated place” and “hard to get to” are inherently subjective, evaluative and relative.

58    However, I do not consider that the Tribunal’s decision not to refer to this qualitative and conclusionary evidence given by the “eyewitnesses” gives rise to any jurisdictional error.

59    Although the Tribunal is required to give reasons for its decision, it is not required to refer to every piece of evidence before it. Further, the absence of any express reference does not necessarily mean that the evidence, or an issue raised by it, was not considered by the Tribunal: ETA067 v The Republic of Nauru (2018) 360 ALR 228; [2018] HCA 46 (ETA067) at [13] (Bell, Keane and Gordon JJ). There is a distinction between a failure to advert to evidence that, if accepted, might have led the Tribunal to make a different finding of fact, and a failure to address a contention that, if accepted, might establish that an applicant had a well-founded fear of persecution for a Convention reason: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (WAEE) at [46] (French, Sackville and Hely JJ). Further, as the High Court explained in ETA067 at [14], there is a distinction between an omission to refer to evidence indicating that the Tribunal did not regard it as material to an applicant’s claims, and an omission to consider a matter that was material, including a matter that was an essential ingredient to an applicant’s claim or a matter that would be dispositive of the Tribunal’s review.

60    The fears of ritualistic killing by reason of the family’s conversion to Christianity are at the heart of the appellant’s claims. I accept that any decision to “flee” to Bushrod Island would provide some corroboration of the seriousness of those fears. The Tribunal did not expressly refer to evidence that the appellant relied upon in support of that contention. This evidence comprised the affidavit of Ms Johnson in which she claimed to have advised the appellant’s grandmother to flee to Bushrod Island with her family. It also included the evidence from the other three “eyewitnesses”. The absence of any express reference to this evidence, however, does not establish that it was not considered by the Tribunal, particularly in circumstances where the evidence was inherently subjective, evaluative and relative as to accessibility to Bushrod Island and the Tribunal had made its own enquiries as to the remoteness of Bushrod Island.

61    In this case, the Tribunal had also undertaken its own research to obtain information on the extent to which ritualistic killings were reported in Liberia and whether any such killings were attributed to conversions to Christianity. The Tribunal is not required to refer to every piece of evidence before it that might bear on that issue.

62    I am not persuaded that the issue of whether Bushrod Island was “remote” and “difficult to access”, if resolved in favour of the appellant, would be dispositive of the Tribunal’s review of the Delegate’s decision and thus give rise to any inference that it had been “overlooked”: cf WAEE at [47]-[52]; ETA067 at [13]-[14]. The issue of whether Bushrod Island was remote or difficult to access was not an essential or dispositive step in the Tribunal’s reasoning that the applicant did not have a well-founded fear of persecution if he were to be returned to Liberia.

63    I am not persuaded that the approach taken by the Tribunal was an approach that could not have been taken by a logical or rational decision-maker.

Failure of Tribunal to engage intellectually with corroborating evidence (Ground 1(e))

64    Particular (e) to Ground 1 is directed at the alleged failure by the Tribunal to provide any active intellectual engagement with, and further or in the alternative, give any real, genuine or proper consideration to, the corroborating evidence of Mr Talbert and the May 2013 report prepared by Amnesty International for the appellant’s grandmother addressing ongoing violence surrounding traditional ritualistic practices in Liberia and the absence of adequate state protection (Amnesty International Report).

Tolbert evidence

65    The appellant submits, correctly, that the only reference the Tribunal made to the evidence of Mr Tolbert was that it outlined “ritualistic killings and how they are difficult to eradicate from the country”. There was no reference to Mr Tolbert’s corroborating evidence that:

… although it is not well publicised in the Liberian media sometimes it is a form of revenge on relatives who have converted for example from an African religion such as Voodoo to Christianity or Islam. This is not publicised as the class in power do not want attention directed at ritualistic killings.

…

I know that if a person who is a member of a Voodoo family converts to Christianity or Islam that will bring about repercussions that are violence [sic] on the persons who converted to Christianity or Islam and this can and usually does accelerate to murders of those who converted from Voodoo and usually the murders are murder by a Voodoo curse or barbaric ritualistic killings which is revenge by the Voodoo relatives. This is what happened to two of Mrs Goodridge’s sons and her half brother Charles Williams.

66    The appellant submits that this evidence of Mr Tolbert concerning revenge religious killings was central to his claims and provided an explanation for why they were under-reported. He submits that the Tribunal failed to state whether Mr Tolbert’s evidence was taken into account, let alone how it might have been taken into account.

67    The appellant contends that the failure of the Tribunal to refer to or examine any of this evidence from Mr Tolbert, which he submits “corroborates the central claim”, shows that that the Tribunal “did not understand that its obligation was not to simply note the witness’ evidence, but to actively provide an intellectual engagement with it”.

68    The Minister contends that the Tribunal was entitled to rely on the “available country information” and prefer it to the evidence relied upon by the appellant, that there was no obligation on the Tribunal to refer to every piece of evidence, and that it is not required to provide a “sub-set of reasons why it accepted or rejected individual pieces of evidence”: Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48]. The “available country information” was the internet searches undertaken by the Tribunal. Moreover, as the Minister submits, Mr Tolbert referred to ritualistic killings “sometimes” being in revenge for conversion, and he also suggests other reasons. Finally, the Minister submits that there was no suggestion that Mr Tolbert had personal knowledge of what had occurred to the appellant’s family members.

Amnesty International Report

69    The appellant submits that the Amnesty International Report is consistent with Mr Tolbert’s evidence, in particular, the references to the United States State Department’s reports of ritualistic killings being described by Liberian police as homicides, accidents or suicides, notwithstanding body parts were missing. The appellant also relies on the references in the Amnesty International Report to the police having inadequate resources to investigate such crimes, their inability to bring perpetrators to justice and the community’s opposition to eradicating the imposition of non-consensual Voodoo practices on people.

70    The appellant submits that the Amnesty International Report is consistent with the death certificates provided by the appellant, but the Tribunal failed to refer to that or examine the information in the Report that was contrary to the conclusions that the Tribunal formed on ritualistic practices in Liberia.

71    The Minister contends that the Amnesty International Report was of limited probative weight because it reported that victims of ritualistic killings were often powerful members of the same indigenous religious group as the perpetrator (which was not the case with the appellant); it makes no reference to the removal of body parts (as was alleged to have occurred by the appellant); the ritualistic killings were reported to have occurred during the civil war when “violence was rampant”; and it does not follow that because the police might record ritualistic killings as being caused by other means, that the deaths of the appellant’s uncle and grand uncle were due to ritualistic killings.

72    The Minister submits that the better view is that the Tribunal did not make any reference to the Amnesty International Report because it was not material to its conclusions.

Conclusion

73    I am ultimately not persuaded, for the following reasons that the Tribunal engaged in jurisdictional error by not expressly referring to the substantive parts of the Tolbert affidavit relied upon by the appellant, by not making any reference to the Amnesty International Report or by failing to make any findings with respect to this evidence.

74    First, it could not be submitted that the Tribunal overlooked the Tolbert affidavit. It expressly referred to it in its decision.

75    Second, given that Mr Tolbert had been living in Australia since 2004 and he did not purport to have any personal knowledge of the circumstances surrounding the deaths of the appellant’s grand uncle and uncle, a Tribunal acting reasonably and rationally could well have preferred its contemporaneous internet searches as more reliable and probative of the present risks in Liberia of ritualistic killings by reason of conversions to Christianity. The respective weight to be given to conflicting evidence is a matter for the Tribunal. A failure to refer to specific evidence or to challenge the evidence does not establish that the Tribunal did not consider or engage with it, in the context of the scope of the Tribunal’s obligations to provide reasons.

76    Third, the more plausible inference to draw from the Tribunal’s decision not to make any specific reference to the Amnesty International Report is that it did not consider the Report to be material, rather than that it overlooked a material matter. I accept that, contrary to the submissions of the Minister, the report did refer to the removal of body parts from victims of ritualistic killings. The Report, however, did not speak to the current position with respect to ritualistic violence in Liberia. It was prepared in May 2013 to be used as country information by the appellant’s grandmother in connection with her application for a protection visa. It could therefore only speak to ritualistic violence in Liberia up to that period.

77    Fourth, and more significantly, the Amnesty International Report did not draw or otherwise suggest any link or connection between “ritualistic killings” and “conversions from Voodoo beliefs to Christianity”, notwithstanding the reference in the covering letter from Amnesty International to the appellant’s mother in which it was noted that:

You have outlined to Amnesty International that you fear to return on the grounds that your family have made attempts on your life, and murdered your son and half brother due to your conversion from Voodooism to Christianity.

Failure of primary judge to engage intellectually with contentions (Ground 1(f))

78    Particular (f) of Ground 1 alleges that the primary judge failed intellectually to engage with the contentions advanced by the appellant in particulars (a) to (e) of Ground 1.

79    The appellant submits that the primary judge made “findings of high generality” and did not engage in the “nub” of Grounds 1 and 2 in the Amended Notice of Appeal. The appellant contends that the approach of the primary judge was analogous to the approach that the primary judge had taken in two other migration cases that he had determined and that had been found to be erroneous in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 755 (Singh) at [19]-[20] (Perram J); EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758 at [46]-[50], [94]-[103] (Charlesworth J). The approach was described by Perram J in Singh at [20] as reflecting:

a complete lack of intellectual engagement with the argument which was being put and is indicative of a judicial method in which meaningless phrases are unthinkingly gathered from the authorities like twigs and patched together in some kind of forensic bird’s nest.

80    The Minister acknowledges that the primary judge’s reasons “are on the shorter side” but does not concede that they were so deficient that they would, in and of themselves, dictate that the matter should be remitted to the primary judge. Further, the Minister submits that this Court is in as good a position as the primary judge to determine whether the Tribunal erred and the matter should be remitted to it for rehearing.

81    I am satisfied that there is some force in the appellant’s complaint that the primary judge failed to engage intellectually with the contentions advanced by the appellant in particulars (a) to (e) of Ground 1. There was a tendency on the part of the primary judge to recite findings by the Tribunal and then to resort to formulaic responses such as the “Tribunal did not have to refer to every piece of evidence before it”, the Tribunal’s findings were “open for the reasons given by the Tribunal”, it was apparent that the Tribunal had a “thorough and genuine intellectual engagement with the whole of the applicant’s claims and evidence”, the Tribunal and “ a real and meaningful engagement with the applicant’s claims” and the challenges to the Tribunal’s decision were “in substance, an invitation to engage in merits review”: J at [20], see also at [9], [10], [12], [13], [17], [18] and [19].

82    Nevertheless, given that I have not found any jurisdictional error in the Tribunal’s decision by reason of the grounds for review advanced in particulars (a) to (e) of Ground 1 and I am in as good a position to determine those issues as the primary judge, the ground of review advanced in particular (f) to Ground 1 becomes somewhat moot and unnecessary to address further.

Unwarranted assumption about resettlement assistance (Ground 2)

83    The appellant contends in Ground 2 that the primary judge erred in failing to find that the Tribunal erred in finding that associates of the appellant’s father could assist the appellant if he returned to Liberia, in not addressing the contention that the appellant’s father only communicated with an old school friend in Liberia and by making an unwarranted assumption that that person would assist the appellant.

84    In the course of addressing the other claims advanced by the appellant the Tribunal found at [47]:

The applicant’s father in his evidence told the Tribunal he still talks to people in Liberia who keep him posted on what is happening and the Tribunal considers that these friends and associates would be able to assist the applicant to get settled when he returns to Liberia.

85    The Tribunal did not identify any evidence on which it relied to reach the finding that friends and associates would be able to assist the appellant to get settled (settlement assistance finding). Further, I note that the oral evidence of the appellant’s father at the Tribunal hearing was that he only had one person that he still speaks to in Liberia, as demonstrated in the transcript of the following exchange between the Tribunal and the appellant’s father:

40:19     MS NORA LAMONT         Do you have any um, I know you just told me about your relatives but you were you were older when you left Liberia. Do you have any um friends or um associates still that you speak to in Liberia that update you on what's going on there or what’s happening with your relatives? Do you know any information about them, like what (inaudible) or what they've been doing or saying?

40:49     [Appellant’s father]     Uh Yes, l'm aware that they uh are alive and they are, they are (inaudible) of doing what they been doing all along. So, I got a friend up here we went to school together who I do communicate with and he is aware of all that has happened in the beginning with my family and myself.

41:14     MS NORA TAMONT         Right. [as literally recorded in the transcript]

86    The Minister further submits that a rational Tribunal could read the evidence given by the appellant’s father as being that he had friends and associates (plural) in Liberia, not simply the one school friend that he had stated that he communicates with, and there was nothing illogical or irrational in the Tribunal considering that the father’s friends could assist the appellant on his return to Liberia.

87    The relevant issue raised by the appellant, however, is not illogicality or irrationality but rather whether the Tribunal had made an unwarranted assumption which lacked any evidential foundation.

88    In DQM18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 (DQM18) the Assistant Minister had concluded that the appellant could receive assistance from his two sisters in a refugee camp in Sudan. The majority found that the Assistant Minister had engaged in “nothing more than speculation, without a probative basis”: DQM18 at [52] (Bromberg and Mortimer JJ). The majority observed that the conclusion of the Assistant Minister had sought to be defended on the basis that it was a matter of “ordinary human experience” and that in the absence of evidence to the contrary the Court could proceed on the basis that “siblings will endeavour to help each other”: DQM18 at [54]. This contention was rejected by the majority in DQM18. Bromberg and Mortimer JJ concluded at [58]:

However, for the reasons we have given, without some factual basis, or more detailed reasoning, it is not possible to describe the Assistant Minister’s reasoning as being based on the probabilities of ordinary human experience. There is no evidence the Assistant Minister was equipped (by any probative material) to assess what “ordinary human experience” in Sudan or South Sudan might look like in any way, let alone in the particular way or circumstances in which a sibling might be able to help or support another sibling. The situation was not that of a sibling arriving into Heathrow airport and having family in a relatively proximate part of the United Kingdom, a developed country familiar to an Australian decision-maker, where it might be said most people have a reasonable standard of living and can access other parts of the United Kingdom, including having reasonable freedom of movement. There was no “popular perception” or “everyday experience” for the Assistant Minister to draw on about Sudan and South Sudan: at least, none which is apparent on the evidence. Compounding this were the specific circumstances of the appellant’s sisters, and the absence of any finding by the Assistant Minister about whether the appellant would even be returned to the same country that they were currently compelled to seek refuge in. The Minister’s submissions should be rejected.

89    This reasoning is equally applicable in the current context. The finding that the appellant’s father’s friends and associates “would be able to assist” the appellant to get settled if he returned to Liberia was made in the context of the Tribunal’s consideration of matters under the heading “Tribal issues” and the appellant’s claim that he could not return to Liberia as he could not move or relocate outside his home area due to tribal tensions. The evidence of the appellant’s father’s before the Tribunal was that he had friends or associates in Liberia that were still alive and he had one school friend “who I do communicate with and he is aware of all that has happened in the beginning with my family and myself”.

90    I am satisfied that the settlement assistance finding was an unwarranted assumption made by the Tribunal that could not be made without an evidentiary basis and more detailed reasoning, and was not a matter of “ordinary human experience”. The Tribunal did not identify the scope, nature or extent of the putative “assistance” and the prospective ability, means or motivation of any of the appellant’s father’s friends or associates to provide any assistance. In particular, the Tribunal did not explain how in the absence of any suggestion that the appellant’s father had any communications with these friends or associates, other than the school friend, it could be assumed that they would be able to provide such assistance.

91    Nevertheless, I note that the Tribunal otherwise observed in the context of considering the appellant’s claim that he could not return to Liberia as he could not move or relocate outside his home area due to tribal tensions, that the civil war in Liberia ended 17 years ago, since that time “hundreds of thousands of Liberians have returned to their country and continue to live there” and there was no evidence in the country information of discrimination against Americo-Liberians.

92    The Minister submits that it would only be necessary to consider the issue of relocation if the Tribunal found there was a real chance or real risk of serious or significant harm to the appellant should he return to Liberia. As the Tribunal did not make such a finding, the Minister submits that the issue of relocation was not a necessary or essential part of the Tribunal’s reasons and therefore the settlement assistance finding could not be material.

93    In the circumstances, I am not satisfied that the settlement assistance finding was a finding that was material to the Tribunal’s decision not to grant a protection visa to the appellant.

94    Ground 2 has not been established.

Disposition

95    It follows, for the reasons that I have given above, that the primary judge did not err in dismissing the application for review of the decision of the Tribunal and the appeal should be dismissed with costs.

Associate:    

Dated:    22 November 2021