Federal Court of Australia

SZVDF v Minister for Immigration and Citizenship [2026] FCA 1287

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to the appellant to rely on the amended notice of appeal filed 17 July 2026.

2.    The appellant pay the first respondent’s costs occasioned by the filing of the amended notice of appeal.

3.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

4.    The appeal be dismissed.

5.    The appellant is to pay the first respondent’s costs of the appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2), dated 7 May 2025, which dismissed an application by the appellant for judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal) to affirm the decision of a delegate of the respondent, the (then) Minister for Immigration and Multicultural Affairs, not to grant the appellant a Protection (Class XA) visa: SZVDF v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 644 (PJ).

2    The delegate’s decision, with which these proceedings are concerned, was made more than a decade ago, in July 2013. Since that time, notwithstanding that the appellant’s short-term visa expired in March 2013, he has remained in Australia pursuing various avenues of merits and judicial review of the delegate’s decision.

3    By this appeal, the appellant submits that the primary judge (a) denied him procedural fairness in the conduct of the proceedings below, (b) failed to decide the judicial review application according to the legal complaints which he actually advanced, and (c) failed to identify a jurisdictional error in the Tribunal’s findings as to his credibility. For the following reasons, those grounds are bereft of merit and the appeal should be dismissed.

Procedural history

4    The appellant is a citizen of India. He arrived in Australia on 4 December 2012, having been granted a Subclass 456 Business (Short Stay) visa on 30 October 2012. That visa was due to expire on 4 March 2013, but, as mentioned, he has remained here ever since.

5    On 1 March 2013, the appellant filed an application for a protection visa.

6    On 15 July 2013, a delegate of the Minister refused to grant the protection visa on the basis that he was not satisfied that the appellant had a well-founded fear of persecution.

7    On 1 August 2013, the appellant applied to the Refugee Review Tribunal (RRT) for merits review of that decision. That application was dismissed on 31 March 2014: 1310836 [2014] RRTA 268 (31 March 2014).

8    On 2 September 2014, he sought review of the RRT’s decision in the (then) Federal Circuit Court. On 15 June 2017, the Court ordered, by consent, that the matter be reconsidered on the basis that s 438(1)(b) of the Migration Act 1958 (Cth) (Migration Act) applied to certain documents and information.

9    As a result, the matter was remitted to the Tribunal (as the RRT was subsumed within the Tribunal in 2015). It conducted a hearing on 14 November 2018, and the appellant was given until 16 November 2018 to provide further information in support of his contentions.

10    On 27 November 2018, the Tribunal affirmed the delegate’s decision of 15 July 2013.

11    On 18 December 2018, the appellant filed an application for review of the Tribunal’s decision. That was filed with the assistance of solicitors, who later withdrew from acting for him in or around March 2020. It appears that the former solicitor on record no longer practices law.

12    For reasons unknown, though presumably related to the outbreak of COVID-19 in Australia and the appellant becoming self-represented, the matter was not heard until 2025. It was initially listed for hearing on 12 March 2025, but the appellant sought and was granted an adjournment in order to file an amended application and written submissions.

13    The application was eventually heard by the primary judge on 10 April 2025, and dismissed on 7 May 2025.

14    The appellant filed the present appeal on 16 May 2025. He did so with the assistance of Counsel, Mr Silva, who appeared at the hearing on a direct access basis.

The Tribunal’s decision

15    It is not necessary, at this stage, to assay the Tribunal’s reasons in detail. They will be addressed, where relevant, in the course of considering the appellant’s submissions. For present purposes, it suffices to make the following observations in summary.

16    Before the Tribunal, the appellant contended that he feared harm in India, by reason of his status as a Muslim and his and his father’s involvement in the All India Majlis-e-Ittehadul Muslimeen (AIMIM). The AIMIM appears to be some form of political party that purports to represent the interests of Muslims and other minority groups. The appellant claimed that he recalled several incidents of violence or corruption against him, his family and other members of his community, which occurred between 2006 and 2012. In particular, he referred to the death of his father on 28 December 2007, after an accident involving two youths on motor scooters. He asserted that, whilst staged as an accident, his father’s death was actually the result of a targeted attack by Hindu fundamentalists.

17    In considering the appellant’s case, the Tribunal identified the relevant questions for consideration as being (a) whether the appellant had a right to enter and reside in another country, (b) whether his claims were credible, (c) whether he had a well-founded fear of persecution in India, and (d) whether Australia owed protection obligations to him under the Refugee Convention or the complementary protection provisions of the Migration Act.

18    As to the first question, the Tribunal found that, notwithstanding the appellant’s marriage to a Sri Lankan citizen, he did not have a present right to enter and reside in Sri Lanka, because the residence visa for which he was eligible was subject to the exercise of discretion by a decision-maker.

19    As to the second question, the Tribunal considered the appellant not to be a credible, truthful and reliable witness. That was because he was found to have provided inconsistent evidence on a number of matters, including the extent of his and his father’s involvement in the AIMIM and the circumstances of his father’s death. He also gave “confusing and changing” evidence – which was unable to be corroborated by any contemporaneous material – about his decision to leave India for Sri Lanka on 3 November 2012, and his return on 17 November 2012. In this regard, the Tribunal considered that, if he and his family had actually suffered the harm which he asserted had occurred prior to his departure, it is unlikely that he would have returned to India and remained there between November and December 2012. The Tribunal also took into account the fact that he failed to disclose, in his application for a protection visa, that he and his wife had been detained in Thailand for nine months in March 2007 for holding false Singaporean passports. His evidence as to whether he and his wife were consequently convicted of any offence was also found to be inconsistent.

20    As to the third question, by reason of his lack of credibility, the Tribunal did not accept that the appellant left India in December 2012 for any of the reasons claimed, or with any concerns for his safety. It also did not accept that the appellant or his father were ever involved with the AIMIM or any Muslim group, nor that the appellant would be involved in any activities with the AIMIM, face persecution by being involved in the AIMIM, or be targeted by Hindus on his return to India.

21    As to the fourth question, the Tribunal was satisfied that, on the available evidence, the appellant did not face a real chance of harm were he to return to India. Having regard to country information produced by the Department of Foreign Affairs and Trade, it observed that any violence against Muslims in India is not so general as to subject all Muslims to a real chance of serious or significant harm. As such, the Tribunal was not satisfied that the appellant was a refugee under s 36(2)(a) or (aa) of the Migration Act.

The primary judge’s decision

22    Before the primary judge, the appellant advanced some thirteen grounds of review of the Tribunal’s decision. His Honour recorded them as follows, at PJ [42]:

1.    Credibility Assessments – (Inconsistent Testimonies and Socio-Political Context) – Paragraphs 7, 33, 39, 40 and 73

2.    Failure to Consider Country Evidence – (Disregard for Critical Information on Persecution) – Paragraphs 90, 95 and 98

3.    Misapplication of Legal Standards on “Well-Founded Fear” – (Narrow Interpretation of Fear of Persecution) – Paragraphs 102 and 103

4.    Section 438 and Confidential Information Disclosure – (Lack of Transparency and Fairness) – Paragraphs 14 and 16

5.    Inconsistent Findings Regarding the Applicant's Activities (Contradictory Assessments of Involvement with AIMIM) – Paragraphs 36, 48, 49 and 82

6.    Failure to Acknowledge Real Risk of Harm – (Underestimation of Threats to the Applicant) – Paragraphs 101 and 102

7.    Misinterpretation of “Well-Founded Fear” – (Failure to Address Complexity of Risk) – Paragraphs 102 and 103

8.    Inadequate Consideration of Cumulative Claims – (Failure to Assess Overall Evidence in determination of the availability of a complementary protection) – Paragraphs 103 and 104

9.    Neglect of Protection Obligations – (Misunderstanding of Legal Responsibilities) – Paragraphs 104, 105 and 106

10.    Complementary Protection Criterion (Paragraph 104, 105 and S.36(2)) – (Inadequate Risk Assessment)

11.    Reasonableness of Relocation (S.36(2B) Migration Act 1958) – (Failure to Analyze Relocation Options)

12.    Ministerial Direction Consideration – (Failure to Adhere to Relevant Guidelines)

13.    Inadequate Evaluation of “Significant Harm” – Complementary Protection Criterion (S.36(2)(aa)) – (Lack of Thorough Examination).

23    Even on a cursory reading of these grounds, it is apparent that they sought to invoke engagement with the merits of the application before the Tribunal. Notwithstanding that apparent deficiency, his Honour carefully considered the submissions advanced in respect of each ground. Of those, only some are relevant to the matters raised on appeal to this Court, namely grounds 1 and 5. It is appropriate to only summarise his Honour’s findings in respect of them.

24    The first ground concerned an alleged failure by the Tribunal to consider the “broader socio-political context affecting Muslim communities in India and the traumatic impact of events that can lead to variations in recollecting past events”: PJ [44]. Having regard to the well-established principle that the trier of fact enjoys an advantage in observing the evidence given by both parties: Fox v Percy (2003) 214 CLR 118, 131 – 132 [41]: his Honour concluded that the Tribunal’s reasons for rejecting the appellant’s evidence were set out in detail and provided a logical, evidential basis for the conclusions which it reached: PJ [55]. His Honour said further that the Tribunal specifically raised and considered issues associated with cultural differences and made specific reference to its “Guidance on Assessment of Credibility” and any possible interpretation difficulties: PJ [55]. Accordingly, his Honour considered the first ground of review to be a mere attempt to engage the Court in merits review: PJ [54].

25    The fifth ground concerned an argument that the Tribunal made inconsistent findings as to the appellant’s involvement in the AIMIM. In particular, the appellant relied upon an alleged inconsistency in the Tribunal’s reasons, in that it acknowledged that some parts of his evidence had remained consistent but ultimately rejected it entirely, and considered it to be a fabrication. This ground was rejected on the basis that it was not supported by any particulars: PJ [72]. Further, and in any event, the primary judge was satisfied that the Tribunal provided a detailed, coherent and logical basis for rejecting some parts of the appellant’s evidence but accepting others: PJ [73].

The appeal to this court

26    The appellant advances the following grounds of appeal in this Court:

GROUND 1 – Part 1

The learned primary judge denied the appellant procedural fairness by proceeding with the final hearing notwithstanding that the Court was aware that the self-represented appellant had not received, and had not had an opportunity to consider, the Court Book.

…

GROUND 1 – Part 2

The learned primary judge denied the appellant a fair hearing or alternatively failed to exercise the judicial review function according to law by failing to identify the legal substance of the appellant’s challenge to the Tribunal’s credibility reasoning, notwithstanding that the appellant was self-represented, required an interpreter, and had expressly challenged both the Tribunal’s reliance upon alleged inconsistencies and the rationality of its reasoning process.

…

GROUND 2

The learned primary judge erred in failing to find that the Tribunal committed jurisdictional error by making adverse credibility findings founded upon a combination of genuine and alleged inconsistencies, without demonstrating how those matters, individually or cumulatively, rationally justified its overarching conclusion that neither the applicant nor his father had been involved in AIMIM and that the applicant had fabricated his protection claims. The Tribunal’s credibility assessment therefore lacked an evident and intelligible justification and was legally unreasonable.

…

27    The two “parts” of Ground 1 do not appear to be related in any way, save that they both concern allegations of a procedural mistake on the part of the primary judge. It is somewhat curious that they have been grouped together. Nevertheless, it is appropriate to deal with each ground in turn.

Ground 1, Part 1

28    The first part of the first ground of appeal concerns an allegation that the primary judge proceeded with the hearing notwithstanding that the appellant, who was self-represented and assisted by an interpreter, had neither been provided with, nor afforded an opportunity to consider, the Court Book.

29    The transcript of the proceedings below shows that, at the commencement of the hearing, the appellant indicated to the primary judge from the Bar table that he did not have a copy of the Court Book with him. He did, however, have a “pile” of documents, though there is no evidence as to what that contained. The primary judge then asked the Minister’s representative whether the appellant had been served with the Court Book, to which the representative responded that it would have been served on his former solicitors, but he could not guarantee whether that was the case.

30    The appellant submits that it was procedurally unfair for the primary judge to proceed with the hearing, in circumstances where it had not been established that he had been served with, and thereby had an opportunity to consider, the Court Book. He says that by not adjourning the hearing to allow him time to consider the Court Book, the primary judge denied him a reasonable opportunity to present evidence and make submissions.

31    In response, the Minister has adduced evidence to the effect that: firstly, the Court Book was served on the appellant, via his erstwhile solicitors, on or about 28 March 2019, being approximately one year before they ceased acting for him and some six years before the hearing occurred; and second, on 20 February 2025, the appellant applied to the Registry for access to all documents relevant to his matter and was provided with material as a result. The appellant submits, however, that no regard may be had to those matters because the fairness of the primary judge’s decision to proceed with the hearing must be assessed by reference only to the material and information available to his Honour at the time that decision was made.

32    For the following reasons, the appellant’s submissions on this ground lack any merit.

33    Fundamentally, the concern of procedural fairness is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [37]. Whether practical injustice has been occasioned is determined not by reference to the subjective knowledge of the primary judge, but upon an objective assessment of the circumstances, which may, depending on the circumstances, be the subject of further evidence on appeal or review. That is because “[w]hat must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process”: Nathanson v Minister for Home Affairs (2022) 276 CLR 80, 118 [80]; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 342 [58]. In this case, in determining the existence of any practical injustice, it is appropriate to consider the extent to which the appellant may have had an opportunity to consider the Court Book prior to the hearing. That cannot be gleaned solely from the transcript.

34    To that end, the evidence adduced by the Minister suggests that the Court Book was filed and served by the Minister on or about 28 March 2019, and, further, that the appellant filed an application for production of all relevant documents on 20 February 2025. From this, it can be inferred that, even if the appellant was not provided with a copy of the Court Book by his former solicitors (a fact of which there is limited evidence), it is more likely than not that he received it from the Registry on or after 20 February 2025. That being so, it can also be inferred that he likely had a reasonable time to consider it before the hearing.

35    The appellant has not adduced any evidence to gainsay that inference. Though he swore an affidavit annexing the transcript of the hearing below, he did not depose that he, in fact, did not have a copy of the Court Book at the hearing, or that a copy had never been provided to him. Nor did he explain what documents he received in response to his request for copies of all documents on the Court’s electronic file. Rather, the transcript reveals only that he was uncertain about the documents which he had received or were otherwise in his possession.

36    It follows that the Court is unable to conclude, on the balance of probabilities, that the appellant did not have any opportunity to consider the Court Book prior to the hearing. Indeed, it is equally possible, on the available evidence, that he simply failed to bring it with him to the hearing. He has, therefore, failed to discharge his onus of proving that he suffered any practical injustice. Contrary to submissions advanced by the appellant’s Counsel, that does not involve any “speculation” as to the extent of his access to the Court Book, but is a straightforward application of the onus of proof.

37    Further, and in any event, the appellant has not identified the specific injustice that arose as a result of his purported lack of access to the Court Book. He has not pointed this Court to any particular document contained in the Court Book to which he would have referred, but was unable to do so, nor has he identified any submission which he was prevented from advancing.

38    It was, however, suggested on behalf of the appellant that he was unable to interrogate the references to the Court Book in the Minister’s written submissions. To that end, the Court was taken to several paragraphs of the Minister’s submissions to which the appellant was allegedly denied an opportunity to respond. However, those paragraphs set out the appellant’s background and the history of the proceedings. They recorded, as the appellant’s Counsel conceded, uncontroversial factual matters of which he would almost certainly have been aware. It follows that no prejudice or injustice is identified by that submission.

39    That aside, it is also abundantly clear that the appellant was afforded a fair opportunity to advance his case. As mentioned, the primary judge granted an adjournment from 12 March 2025 to 10 April 2025 to enable him to file an amended application and written submissions, notwithstanding that he was given ample notice of the original hearing date. He filed both documents on 27 March 2025. They were detailed, contained references to relevant paragraphs in the Tribunal’s reasons, and demonstrated engagement with the issues and the material. Nothing in either document suggests that their preparation was impeded by any lack of access to relevant information.

40    Then, at the hearing, the primary judge carefully explained to the appellant, via his interpreter, the nature of the proceedings and the matters which he was required to address in order to establish error in the Tribunal’s decision. So much is clear from the following exchange in the transcript:

HIS HONOUR:    All right. Now, the job that I have to do today is I have to determine whether or not there was a legal error in the decision of the tribunal. The legal error is something like that they – and it's not exclusively, but it can be something like, they didn't instruct themselves on the law properly, or they did not follow a required procedure, or they took into account something they shouldn't have taken into account. So what I'm doing is, I'm looking for a legal error in the decision only. If I find there was a legal error, then what I can do is send the matter back to the tribunal and ask them to reconsider it. But what I can't do is consider the merits of your application. I can only consider whether or not there's a legal error. Okay. Now, as I said, if I find there's an error, all I can do is send it back to the tribunal. Now, do you have any questions on the job I have to do today?

THE INTERPRETER:     No, your Honour.

HIS HONOUR:     All right. Now, the way that we're going to run the hearing is this. First, I'm going to ask you to talk to me. That is your opportunity to tell me why there was a legal error in the decision. When you're doing that, you should make reference to the grounds of judicial review that you filed. Okay. After I've heard from you, I will hear from Mr Pinder. And he will tell me, in his view, why there was no legal error in the decision. Once he has finished, you get a right of reply, which is your opportunity to respond to anything that he has said. Now, you will not get a decision here today. I will consider the matter, and I will produce a written decision, and we will contact you and let you know when the decision is going to be handed down. Now, you don't need to come to court on that day. You can come in via the video, and I will tell you what the outcome is. Now, I haven't determined what I'm going to do, but I need to warn you that if you are unsuccessful, the Minister is likely, most likely, to ask for legal costs. Because in a court, an unsuccessful party normally has to pay the other side's legal costs.

SZVDF:    Okay.

41    The transcript also reveals that his Honour explained his concerns with some of the appellant’s submissions – which he delivered by reading from a document he had prepared – and allowed him an opportunity to respond to those concerns. He also gave submissions in reply to those advanced by the Minister.

42    Nothing in the foregoing suggests that the appellant was not afforded a fair opportunity to present his case. Rather, he was generously assisted by the learned primary judge, who, on the face of the transcript, was anxious to ensure that he understood the nature of the proceedings and the issues which he needed to address.

43    In that regard, the observations of Allsop CJ and Mortimer J in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 (SZRUR), to which the appellant referred, do not assist his case. That case concerned an allegation from the Bar table by a litigant-in-person that a migration agent had forged his signature on a document provided to the RRT. One issue with which the Full Court was concerned was that the litigant-in-person was not given an opportunity to give sworn evidence on the alleged forgery, and the elements of establishing fraud were not explained to him. As Allsop CJ observed, the dictates of procedural fairness required that the appellant be afforded the opportunity to give evidence from the witness box with knowledge of the matters which he had to address: SZRUR 456 [53] – [54]. Similar observations were made by Mortimer J, who said that the primary judge was required to ensure that the appellant had sufficient information about the evidence required to make out an allegation of fraud: SZRUR 456 [58] – [59], citing Hamod v New South Wales [2011] NSWCA 375 [311].

44    That is distinct from the circumstances of this case. The transcript shows that the primary judge assiduously ensured that the appellant was given ample information about the nature of the proceedings and the issues which he was required to address. On the material before the Court, any lack of access to the Court Book at the hearing could not have affected his understanding of the relevant issues so as to deny him a reasonable opportunity to present his case.

45    It follows that the appellant has not established that he was denied procedural fairness in the conduct of the hearing before the primary judge. The first aspect of ground 1 should be dismissed.

Ground 1, Part 2

46    The second aspect of the first ground of appeal alleges that the primary judge denied the appellant a fair hearing, or failed to exercise the judicial review function according to law, by failing to identify the legal substance of the appellant’s submissions.

47    This submission is somewhat obscure. It was not articulated with any clarity or precision in the written submissions, nor at the hearing. From what can be discerned, it appears to comprise two submissions: firstly, that the primary judge wrongly dismissed grounds 1 and 5 below as mere attempts to engage in merits review, without engaging with the substantive legal complaint they purportedly raised; and second, that his Honour should have read and understood grounds 1 and 5, but particularly the latter, as advancing the ground of review which is now sought to be articulated in ground 2 of this appeal.

48    The first submission misconstrues the primary judge’s reasons. Ground 1 was expressed in the amended application for review as follows:

1. Credibility Assessments – (Inconsistent Testimonies and Socio-Political Context) – Paragraphs 7, 33, 39, 40, 73

Particulars: The Tribunal’s conclusion that the applicant is not a credible witness relies heavily on inconsistent testimonies, while failing to adequately account for the broader socio-political context affecting Muslim communities in India. The decision does not give proper consideration to the traumatic impact of the events described by the applicant, nor does it take into account the inconsistencies that may naturally arise from recounting traumatic experiences. This undermines the principle of the benefit of the doubt that should apply to asylum seekers.

49    In the reasons, his Honour articulated ground 1 as being “a complaint that the Tribunal’s finding that the applicant is not a credible witness who relied on “inconsistent testimonies”, fails to account for the broader socio-political context affecting Muslim communities in India and the traumatic impact of events that can lead to variations in recollecting past events”: PJ [44]. That appears to be a faithful paraphrasing of the appellant’s contention, suggesting that his Honour did in fact appreciate and address the substantive argument advanced.

50    Moreover, though his Honour observed that the ground amounted to an attempt to engage in merits review of the Tribunal’s decision (PJ [54]), he ultimately concluded that it lacked a substantial basis in any event:

55.     The findings of the Tribunal as to why it rejected key aspects of the applicant’s claims were set out in detail and provided a logical, evidential basis for the conclusions the Tribunal arrived at. At [74]-[75], the Tribunal specifically raised and considered issues associated with cultural differences and made specific reference to the Tribunal’s ‘Guidance on Assessment of Credibility’ and any possible interpretation difficulties. Having considered these matters, the Tribunal still arrived at the conclusion that the applicant was not a credible witness.

56.    The Court is satisfied that the credibility findings made by the Tribunal were open to it based on the evidence before it and for the reasons it gave. Ground one has no merit.

51    Those reasons are not appropriately characterised as merely dismissing the ground of review without identifying and engaging with the legal substance of the complaint sought to be advanced. On the contrary, the primary judge directly and accurately identified the issue raised before him.

52    The same can be said for ground 5. That was recorded in the amended application as follows:

5. Inconsistent Findings Regarding the Applicant's Activities — (Contradictory Assessments of Involvement with AIMIM) — Paragraphs 36, 48, 49, and 82

Particulars: The findings regarding the applicant's alleged involvement with AIMIM are contradictory. The Tribunal alternates between dismissing the applicant's involvement based on perceived inconsistencies while simultaneously acknowledging that aspects of the applicant's background have remained consistent. This dual standard leads to an unfair assessment of the applicant's claims.

53    It will be recalled that this ground was dismissed on the basis that it was not supported by sufficient particulars as to the precise nature and degree of inconsistency in the Tribunal’s reasons: PJ [72], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]. However, in any event, the primary judge also found that the Tribunal “provided a detailed, coherent and logical basis for rejecting some of the applicant’s evidence but accepting other parts” and that there was “nothing illogical or irrational in the approach adopted”: PJ [73].

54    It follows that both grounds of review were not summarily rejected in the manner which the appellant contends. They were dismissed for logical and rational reasons that were plainly open to the primary judge.

55    Pausing there, it is appropriate to observe that it is somewhat unusual to suggest that a decision maker cannot logically or rationally accept some parts of a witness’ evidence but not others. No logical foundation for that submission was advanced by the appellant before the primary judge or on appeal. It is a quotidian aspect of the assessment of a witness’ credit that the trier of fact may accept their testimony on some matters but not on others, particularly where the witness falsifies or greatly exaggerates the essential or crucial parts of their evidence. It follows that the foundation of the fifth ground of review before the primary judge was fundamentally misconceived. A finding that an applicant was untruthful in some parts of their evidence but not in others is not, of itself, internally inconsistent.

56    Turning to the second submission, it will be recalled that ground 2 of this appeal concerns an allegation that:

…the Tribunal committed jurisdictional error by making adverse credibility findings founded upon a combination of genuine and alleged inconsistencies, without demonstrating how those matters, individually or cumulatively, rationally justified its overarching conclusion that neither the applicant nor his father had been involved in AIMIM and that the applicant had fabricated his protection claims…

57    The appellant submits that the primary judge should have understood grounds 1 and 5 below as cumulatively raising an argument to that effect. He says that, as a litigant in person, he should not have been expected to express his grounds of review “in the language of appellate advocacy”, and that the primary judge should have understood his submissions as challenging the reasonableness of the Tribunal’s conclusion. In this regard, he calls in aid his reference in the submissions below to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW).

58    That submission must also be rejected. As a starting point, grounds 1 and 5 do not correspond with that which is presently raised by ground 2. Ground 1 concerned the Tribunal’s consideration (or lack thereof) of socio-cultural factors affecting the manner in which the appellant gave his evidence, a matter which does not appear to be raised on this appeal. Similarly, the purported challenge in ground 5 was confined only to the Tribunal’s use of the inconsistencies which it identified in the evidence, in relation to its finding that neither the appellant nor his father was involved in the AIMIM. Ground 2 of this appeal is far broader than that.

59    Against that background, the primary judge was under no obligation to fashion the appellant’s submissions into the cogent and particularised argument of legal unreasonableness now advanced. Indeed, it would have been inappropriate for him to do so. The reasons of the Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479 at 491 – 492 [52] – [57] (Flightdeck) are instructive in this respect. In summary, the Court there observed that:

(1)    Whilst the Court is required to assist litigants in person, that cannot override its concurrent duty to remain an impartial adjudicator: Flightdeck 491 [53].

(2)    The Court must strike a fine balance between providing assistance to a litigant in person, and ensuring a fair trial for all parties: Flightdeck 491 [53], citing Hamod [315]; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, 446 [29]; SZRUR 452 – 454 [37]; AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, 44 – 46 [39].

(3)    The assistance provided to a litigant in person is, therefore, limited to that which is necessary to diminish the disadvantage which they will ordinarily suffer, and the Court should be wary to avoid placing a litigant in person in a position of advantage over a represented opponent: Flightdeck 491 [54].

(4)    That does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf. Nor does it extend to viewing their submissions with a favourable eye: Flightdeck 492 [56], citing Hamod [312]; Bhagwanani v Martin [1999] SASC 406 [23]; Clark v New South Wales (No 2) [2006] NSWSC 914 [13].

(5)    The extent of the Court’s obligation to assist a litigant in person is factually idiosyncratic and depends upon the circumstances of the case: Flightdeck 492 [57], citing Abram v Bank of New Zealand [1996] ATPR 41,507, 42,347.

60    Applied here, the appellant is effectively asking the Court to construct a cogent legal unreasonableness argument from allegations that were not articulated in those terms, nor adequately particularised. That is aptly illustrated by the appellant’s reference in his submissions below to SZVFW. In particular, his submissions with respect to ground 5 offered the following summary of that case:

The High Court criticised the Tribunal for inconsistent and contradictory findings about the applicant’s conduct and political activities, which undermined the reliability of the credibility assessment. The Court made clear that inconsistency in fact-finding, particularly where one part of the applicant’s account is accepted and another is dismissed without logical reconciliation, constitutes an error of law. Decision-makers must demonstrate rational and cohesive reasoning, as fragmented or contradictory conclusions corrode the validity of their decisions.

61    SZVFW was not remotely concerned with inconsistent or contradictory findings in an assessment of credibility. The cited paragraphs in the judgment (564 – 566 [53] – [55]) also do not appear to relate to the submission advanced. In those circumstances, the argument was materially deficient, and the reference to SZVFW would not have assisted the primary judge to interpret the ground as making the submission now sought to be advanced. Indeed, an argument so constructed by his Honour would have been substantially different from the submissions actually put, and one to which the Minister had not been given an opportunity to respond. It follows that, had the primary judge acted as the appellant contends, the represented Minister would have been placed in a position of disadvantage relative to his unrepresented opponent. That is, axiomatically, inappropriate.

62    Though true it may be that to insist upon an applicant identifying a “jurisdictional error” in those precise terms is a “pointless, and unfair, exercise”: Shrestha v Migration Review Tribunal (2015) 229 FCR 301, 310 – 311 [53]: the applicant must nonetheless identify an actionable error and provide sufficient particulars of it. Contrary to the appellant’s submissions, this does not require an unrepresented applicant to express their complaint “in the language of appellate advocacy”, or with the precision expected of counsel, but requires them to, at the very least, identify and particularise an actionable error in the decision-making process adopted by the Tribunal. The grounds advanced before the primary judge did not do so, and his Honour did not err in rejecting them.

63    Ultimately, it is apt to invoke the remarks of the High Court in Northern Territory v Sangare (2019) 265 CLR 164 at 174 [27]: “unmeritorious litigation is no less unmeritorious because it is pursued by a person who is … a litigant-in-person”.

64    In the result, the second part of the first ground of appeal identifies no error on the part of the primary judge. It should be dismissed.

Ground 2

65    By the second ground of appeal, the appellant contends that the primary judge erred in failing to find that the Tribunal’s credibility reasoning was legally unreasonable, in that it was:

…founded upon a combination of genuine and alleged inconsistencies, without demonstrating how those matters, individually or cumulatively, rationally justified its overarching conclusion that neither the applicant nor his father had been involved in AIMIM and that the applicant had fabricated his protection claims…

66    At the hearing, this ground appears to have altered somewhat. Counsel for the appellant advanced three submissions, namely that:

(a)    the Tribunal wrongly characterised certain aspects of the appellant’s evidence as inconsistent;

(b)    in finding that the appellant was not a credible witness, the Tribunal only considered the inconsistencies in his evidence and did not take into account the aspects which remained consistent; and

(c)    the Tribunal did not provide any reasons for its finding that the appellant’s evidence was fabricated.

Should leave be granted to advance the ground on appeal?

67    As a continuation of the matters discussed in the previous ground, the Minister submits that, properly understood, this is a new ground which requires leave to be advanced. There is some force in that submission, as the ground differs substantially from grounds 1 and 5 raised below.

68    The Court is empowered to grant leave to argue new points on appeal where it is satisfied that it is in the interests of justice to do so: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152, 154 [2]. In making that assessment, the Court generally considers the reasons, if any, offered as to why the ground was not raised at first instance, whether the respondent is prejudiced by allowing the new ground to be raised, and whether the new ground bears any merit: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 193 – 194 [13] (Tohi). The evaluation of the merits of the new ground is often regarded as “an important consideration”: Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1, 10 [33]: though it is done only at a “relatively impressionistic level”: Tohi 194 [13(6)], citing NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 [31].

69    That the appellant was self-represented at first instance and is now represented by Counsel is a factor which weighs in favour of the granting of leave, as it is in the interests of justice that he be afforded every opportunity to properly articulate his case. So, too, is the fact that the Minister has not identified any prejudice which he might suffer if leave is granted. Nor does it appear that any such prejudice might arise, as the proposed ground is not one that would have necessitated the filing of any further evidence in the proceedings below. Though, on the other hand, as the following discussion reveals, the proposed ground is devoid of any merit. That would ordinarily warrant the refusal of leave.

70    Notwithstanding, in circumstances where the question of leave was not seriously contested at the hearing, and having regard to the other matters weighing in favour of leave being granted, it is appropriate to generously do so for present purposes.

Were the Tribunal’s findings as to credibility legally unreasonable?

71    The core of the appellant’s submission on this second ground is that the inconsistencies which the Tribunal identified in his evidence do not rationally support the conclusions that he fabricated his claim for protection and that neither he nor his father were members of the AIMIM. This necessitates setting out the identified inconsistencies in some detail.

72    Before doing so, it is appropriate to bear in mind the oft-cited principle that, in cases of this nature, the Court is not concerned with looseness in the Tribunal’s language, and the reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.

The evidentiary inconsistencies identified by the Tribunal

73    The Tribunal’s reasons reveal that it carefully considered the appellant’s evidence on his experiences in India and the risk of harm to him and his family were he to return. In doing so, it identified a number of inconsistencies in his evidence, particularly as to his and his father’s involvement in the AIMIM, the alleged attacks perpetrated by Hindu fundamentalists against his father in 2007, his return to India from Sri Lanka in November 2012, his asserted fear of return on account of being a cattle trader, his detention in Thailand, and his employment history in India.

74    The inconsistencies in relation to his and his father’s involvement in the AIMIM were as follows:

(1)    At the hearing, the appellant stated that he became a member of the AIMIM in 2008, to follow in the footsteps of his recently deceased father, but had been informally involved prior to that time. He said that he was appointed to the role of Secretary in 2010. However, in his evidence to the Department of Immigration (as it then was), he said that he became a committee member of the AIMIM in 2006 and was elected Secretary in 2008.

(2)    The appellant also asserted, at the hearing before the Tribunal, that he arranged political meetings, was involved in elections and canvassed votes for AIMIM candidates. He said that his father was involved in similar activities. However, in the hearing before the RRT, he said that he and his father were not involved in the political activities of the AIMIM and contributed only to charity and humanitarian initiatives.

75    The Tribunal considered both of these inconsistencies to be significant, because it formed the view that, if the appellant had joined the party as he claimed, he would have been able to provide more consistent evidence as to what he and his father did for the organisation and when he became a member and later Secretary: [37]. Though it took into account the fact that the events had occurred some time ago, it considered that, at the very least, the appellant should have been aware of when he joined the party, in circumstances where he had asserted that he did so as a result of his father’s passing. Consequently, the Tribunal found that the appellant was not a credible witness as to his and his father’s involvement in the AIMIM: [39].

76    Next, the Tribunal identified inconsistencies in relation to the appellant’s claim that his father’s death, while staged as an accident, was actually a murder by two Hindus. The evidence was as follows:

(1)    In his application for a protection visa, the appellant described the circumstances of his father’s death as “suspicious”. He attached a report which identified his father as having been killed after being hit by a scooter negligently operated by two males: [43].

(2)    In his submission to the Department in 2013, he added that, two days before his father’s death, a few youths came to his father’s door and warned that he should stop his anti-Hindu activities, or he would not live for long: [44]. He also stated that the police did not take any action against the two males riding the scooter because there were no eyewitnesses of the incident: [44].

(3)    At the hearing before the RRT in 2014, he said that the police instituted legal proceedings against the two youths who were riding the scooter: [46].

(4)    At the hearing before the Tribunal, he said that, in the week before his father’s death, Hindus came to his father’s home and threatened him: [47]. He also said that he went to court on three or four occasions to witness the proceedings against the two youths: [47].

77    On that last point, leaving to one side the temporal inconsistencies in the appellant’s recollection of the threats against his father shortly before his death, the Tribunal asked the appellant why he did not raise this matter in his application for protection and instead simply described the death as “suspicious”. It also queried the assertion that he had attended court hearings in respect of the incident, as he had stated earlier that the police had taken no action. The Tribunal’s reasons suggest that he was unable to offer a logical explanation of these inconsistencies: [47].

78    The Tribunal regarded these inconsistencies as significant: [48]. It did not accept that he would frame his father’s death as “suspicious” in his application if, as he suggested, his father was threatened either two days or a week beforehand. It was also concerned by the inconsistencies relating to the extent of police action. Ultimately, the inconsistencies were considered to “further add to the finding that the applicant is not a credible witness”: [49].

79    The Tribunal then turned to the evidence concerning the appellant’s return to India on 17 November 2012, following a stay of several weeks in Sri Lanka. The appellant claimed that, in the months preceding his departure from India, he had been targeted, chased and threatened by fundamentalist Hindus because of his involvement in the AIMIM, his Muslim faith and his occupation as a cattle trader. He asserted that he left India for Sri Lanka on 3 November 2012 out of fear. However, the Tribunal found that he gave “confusing and changing” evidence as to why he returned to India only two weeks later:

(1)    In 2013, he told the Department of Immigration that he returned to India to sell his home before travelling to Australia.

(2)    Before the RRT in 2014, he gave evidence that he returned to India to give money to the agent and sell the contents of his business.

(3)    Before the Tribunal, he initially said that he lived at the same address in Jamisthanpur, Musheerabad, Hyderabad both before and after his travel to Sri Lanka, and that he still owned the home but was renting it out. He then changed his evidence and said that upon returning from Sri Lanka, he did not return to that address but instead went to his uncle’s home in Golcandor, Hyderabad. He suggested that he sold a different home when he returned, not the property in Jamisthanpur, though the Tribunal noted that there was no evidence of him ever owning another home.

80    The Tribunal considered that these inconsistencies undermined his claims that he faced threats and violence in India prior to his departure and that he left in fear: [54]. It found that, if he had, in fact, faced the difficulties which he claimed, and if his life was indeed at risk, he would not have returned to his home area of Hyderabad, or even to India at all: [55]. The Tribunal considered that this “add[ed] to the finding [that] he is not credible as to his claim to have faced the difficulties he claims in October 2012, to have been in hiding and in fear of harm from the [Hindu] fundamentalists for the reasons he claims prior to departing India”: [56]. It also added to the finding that he was not a credible witness generally: [57].

81    The Tribunal then turned to the appellant’s assertion that he feared returning to India as a Muslim involved in cattle and goat trading. The Tribunal rejected this evidence on the basis that it was a recent invention, given it had not been raised at any time in the five years between the filing of his application for a protection visa and the hearing before the Tribunal: [58]. It considered the contention to “[add] to the finding [that] the applicant is not a credible witness as to fearing harm on this basis and [add] to the finding [that] he is not a credible witness generally”: [58].

82    Next, the Tribunal turned to the circumstances relating to the appellant’s detention in Thailand for holding a false Singaporean passport. The first issue was that he had failed to disclose the detention to the Department of Immigration in his application for a protection visa, and in his application for the original visa on which he entered Australia: [60]. He also gave inconsistent evidence on the detention, as follows:

(1)    In 2013, he told the Department of Immigration that he and his wife were prosecuted in Thailand. He said that they went to court and were convicted of an offence.

(2)    Before the RRT in 2014, he said that his failure to disclose his detention and subsequent conviction on his visa applications was a mistake.

(3)    However, before the Tribunal, he said that while he and his wife were detained in Thailand for nine months, they were never convicted of an offence and never went to court. He said that this was the reason why he did not disclose the matter.

83    When the Tribunal put this inconsistency to the appellant, he responded by saying that he was nervous and under pressure, and did not know what to say, when giving the earlier evidence. The Tribunal rejected this explanation on the basis that it was difficult to accept that someone who was nervous and under pressure would wrongly assert that they had been convicted of a crime: [65]. It concluded that this inconsistency “add[ed] to the finding that he is not a credible witness”.

84    Finally, the Tribunal considered the evidence given by the appellant as to his employment history in India. In summary, his visa application stated that he worked for a certain company in India, but he subsequently gave evidence to the Department of Immigration, and before the RRT, that he worked in his father’s hardware and paint shop, and that he knew nothing of the company by which he had previously stated he was employed. Then, before the Tribunal, he said that he worked for both that company and his father’s shop. The Tribunal did not accept this “changing and inconsistent evidence”, and considered it to be of “significant concern”: [72]. It considered the evidence to “add to the finding that he is not a credible witness”: [72].

85    After considering all of the foregoing, the Tribunal summarised its conclusions on the appellant’s credibility as follows:

73.    For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to why he fears return and the difficulties he claims he faced and will face on return. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed India and why he fears return. Accordingly, for all of the above reasons, in light of its findings that he is not a reliable witness, the Tribunal has no confidence in accepting that his evidence about the key aspects of his claims as to the harm he and his family have faced was based on personal or actual experiences or for any of the reasons he claims, and considers it was fabricated to create a claim to be owed protection.

(Emphasis added).

86    In so finding, the Tribunal expressly noted that it:

(a)    allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the degree to which responses can differ depending on the nature of a question and the manner in which it is asked: [74];

(b)    considered the appellant’s claim of interpretation difficulties at the RRT hearing in 2014: [75];

(c)    considered that the appellant filed his application in English: [76];

(d)    considered the appellant’s claim regarding the fact that he remained in Australia apart from his wife and children for six years and while his mother was very sick: [78];

(e)    considered the documents the appellant submitted regarding his father’s death: [79]; and

(f)    considered that some information had been consistent over time, including that he is a Muslim, that both he and his father were involved with AIMIM, and that he was threatened by Hindu fundamentalists in October 2012. However, the Tribunal considered that these matters were easily recallable, and his consistency with respect to them did not outweigh the significant credibility concerns it had previously articulated: [80].

87    The Tribunal then concluded:

81.    Therefore, based on the applicant’s lack of credibility, and on the evidence before it, the Tribunal does not accept either the applicant or his family had profiles as community activists politically or socially or as they assisted in humanitarian work or due to any involvement with the AIMIM as members, supporters, activists or leaders advocating for the rights of Muslims in the manner claimed. In particular it does not accept that either his father or the applicant was a member of the AIMIM or that he was secretary of the local branch, assisting canvassing for votes, attending meetings and rallies or undertaking any political work for the AIMIM or any humanitarian work, nor that the applicant and his father were advocates for uplifting Muslim values and the welfare of Muslims.

The correctness of the identified inconsistencies

88    The appellant’s first submission is that the Tribunal wrongly considered some aspects of his evidence as being inconsistent. For example, he says that he was not incorrect to refer to his father’s death as “suspicious” in circumstances where he was not an eyewitness to the incident. Similarly, he asserts that he was correct to say that no action was taken by police against the alleged perpetrators, as that was a reference to the fact that no murder charges were laid.

89    By these submissions, the appellant seeks to have this Court re-evaluate the Tribunal’s findings of fact based on the evidence presented to it. Indeed, so much was admitted by Counsel for the appellant at the hearing:

HIS HONOUR:    You are saying that the way in which the tribunal found the facts in relation to the tribunal - - -

MR SILVA:     Yes.

HIS HONOUR:     - - - in relation to the detention in Thailand, was not how I should find them?

MR SILVA:     Yes…

90    It follows that these submissions are blatant attempts to engage this Court in merits review, and they will not be entertained.

The Tribunal’s consideration of the consistent evidence

91    The appellant’s second submission is that the Tribunal failed to take into account, when assessing his credibility, the aspects of his evidence which it found to be consistent.

92    That submission is directly answered by the Tribunal’s reasons at [33] and [80], being at the commencement and conclusion of its credibility analysis:

[33]     As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant’s claims and evidence, particularly those that he claims led him to leave India, which the Tribunal does not accept as true, and why he fears return, there are other aspects of his claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true.

…

[80]    In making this finding the Tribunal has also considered that some information has been consistent over time including that he is a Muslim, that both he and his father were involved with AIMIM and he faced difficulties on 24 October 2012 as Hindu extremists came to his shop, he escaped and they came to his home. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

93    Those paragraphs make clear that the Tribunal expressly considered the consistent aspects of the appellant’s evidence, and simply concluded that they did not outweigh the concerns which it had in relation to his credibility, by reason of the various inconsistencies which it exhaustively outlined in the intervening paragraphs. That the consistent evidence is not expressly referred to in paragraph [73], where the Tribunal summarises its credibility findings, does not give rise to any inference that the evidence to which paragraphs [33] and [80] refer was not considered. That is particularly so in circumstances where paragraph [80] commences with the phrase “In making this finding”, being a reference to the finding at paragraph [73].

The finding of fabrication

94    Finally, the appellant cavils with the Tribunal’s finding, expressed in the last sentence of paragraph [73], that his evidence had been fabricated to support a claim for protection. He submits that the Tribunal did not identify any rational basis for reasoning from the inconsistencies which it identified in his evidence to a finding of fabrication. In particular, he contends that the mere rejection of his evidence could not rationally sustain such a finding and that the Tribunal was required to provide additional reasons for it.

95    That submission should be rejected. Read in the light of the Tribunal’s analysis of the appellant’s evidence in the preceding 40 paragraphs, it is apparent that the finding of fabrication was reached by cumulative reasoning from the numerous inconsistencies identified in his account. There is nothing legally unreasonable in the Tribunal proceeding from those inconsistencies to the conclusion that the appellant was not a credible witness and that his account had been fabricated to support a claim for protection.

96    Nor, contrary to the appellant’s submissions, did the Tribunal reason merely from its rejection of his evidence to a finding of fabrication. Rather, it found that he had repeatedly given materially different accounts of central events said to underpin his claim for protection. In those circumstances, it was reasonably open to infer that the account had been fabricated for the purpose of advancing that claim. That inference was a logical and rational step in the Tribunal’s reasoning process.

97    It is also significant that the inconsistencies in the appellant’s evidence went to the core of his claim for protection, in that they fundamentally affected the Tribunal’s assessment of whether he had a well-founded fear of persecution in India. To that end, this case is distinguishable from SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, upon which the appellant relied. The inconsistencies identified by the Tribunal in that case were relatively trivial and, as Gordon J rightly concluded, they did not justify a conclusion that the evidence had been fabricated. In this case, however, the Tribunal was entitled to reason from its rejection of the appellant’s changing, inconsistent and sometimes confusing account of the fundamental events undergirding his protection claim, to a finding that the claim was fabricated.

98    Moreover, by paragraphs [74] to [80], the Tribunal expressly identified that, in making its decision as to the appellant’s credibility, it considered whether the identified inconsistencies might be explained by a lapse of memory, nervousness, interpretation difficulties, the passage of time, or the circumstances in which the appellant provided his previous accounts. That it did so strongly undermines the suggestion that its conclusions were not sufficiently reasoned, or lacked an evident and intelligible justification.

99    For the foregoing reasons, it is appropriate to adopt the primary judge’s observation at PJ [54] that the appellant’s contentions with respect to the Tribunal’s credibility findings do little more than seek to engage the Court in impermissible merits review. This case is yet another example of the invocation of the broadly formulated doctrine of legal unreasonableness by a litigant seeking to challenge the merits of a Tribunal’s decision. This occurs with monotonous regularity, notwithstanding the clear caution of Gageler J (as his Honour then was) in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 377 – 378 [113] that the test for legal unreasonableness is stringent and rarely satisfied. It is now commonplace for unreasonableness to be advanced in applications brought by those dissatisfied with administrative decisions. This carries significant risks. For one, by reason of the frequency with which arguments of this nature are advanced, courts may come to approach them with scepticism. That dilutive effect creates a risk that the comparatively rare cases in which a decision is truly affected by legal unreasonableness may be overlooked, or fail to receive the attention they warrant.

100    At the end of the day, the necessary conclusion is that the appellant has not established any legal unreasonableness in the Tribunal’s findings as to his credibility. The second ground of appeal must also be dismissed.

Conclusion

101    In the result, the appellant has not demonstrated any error in the reasons of the primary judge, nor in the manner in which his Honour facilitated the hearing. The appeal must, therefore, be dismissed.

102    The Minister is entitled to his costs of this appeal, taxed on the standard basis or as agreed.

Associate:    

Dated:    4 September 2026