BBG21 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 801

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BBG21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 801

File number(s):	SYG 730 of 2021
Judgment of:	JUDGE ZIPSER
Date of judgment:	29 May 2025
Catchwords:	MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether Tribunal erred in finding inconsistency and embellishment in applicant’s evidence - whether Tribunal failed to assess significance and weight of inconsistency – whether Tribunal misunderstood or failed to consider applicant’s explanation for inconsistency - application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 476
Cases cited:	BEL16 v Minister for Home Affairs [2019] FCA 1678; 167 ALD 295
Division:	Division 2 General Federal Law
Number of paragraphs:	55
Date of hearing:	7 May 2025
Place:	Parramatta
Counsel for the Applicant:	O R Jones
Solicitor for the Applicant:	Ray Turner Immigration Lawyers
Counsel for the Respondents:	Mr G Johnson
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

SYG 730 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BBG21

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	29 MAY 2025

THE COURT ORDERS THAT:

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

2.The application is dismissed.

3.The applicant pay the first respondent’s costs in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

1. On 23 April 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 March 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. In November 2015, the applicant, a citizen of Lebanon, first arrived in Australia on a visitor visa.  

4. On 21 March 2016, the applicant applied for a protection visa. The applicant claimed to fear a real risk of serious harm if she returned to Lebanon.

5. On 28 April 2017, a delegate of the first respondent, after interviewing the applicant on 18 April 2017, made a decision refusing to grant the visa.

6. On 22 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

7. On 29 January 2021, the Tribunal invited the applicant to attend a hearing on 11 March 2021.

8. On 11 March 2021, the applicant, assisted by her representative, appeared before the Tribunal to give evidence and present arguments.

9. On 19 March 2021, the Tribunal made a decision affirming the decision of the delegate not to grant the applicant a protection visa.

   TRIBUNAL’S DECISION

10. The Tribunal at [3]-[13] summarised the applicant’s claims in her protection visa application. The applicant claimed that in September 2014 she was involved in an incident in Lebanon with armed men. Following this, she was the victim of an attempted murder. She then left Lebanon because she feared being harmed further.

11. The Tribunal at [14]-[22] summarised the delegate’s decision dated 28 April 2017 and some documentary evidence provided by the applicant to the Tribunal.

12. The Tribunal at [23]-[54] considered the applicant’s evidence to the Tribunal at the hearing on 11 March 2021.

13. The Tribunal at [55]-[60] considered country information.

14. The Tribunal at [67]-[80] considered the applicant’s credibility, as well as the applicant’s claims concerning events which occurred to her in Lebanon. The Tribunal, after making an upfront finding at [67] that it did “not accept aspects of the applicant’s claims are credible or reliable”, set out reasons in support of this finding at [68]-[79]. The Tribunal then concluded at [79] that the applicant “is not a credible witness”. The Tribunal at [70]-[79] also made findings rejecting parts of the applicant’s claims.

15. The Tribunal at [81]-[85] considered claims by the applicant that she was at risk of harm as a single divorced woman in Lebanon, because of the current political situation in Lebanon, because she will be perceived as wealthy on return to Lebanon, and that she will be harmed in Lebanon by the economic situation. The Tribunal was not satisfied the applicant faced a real chance of serious harm in relation to any of these matters.

16. The Tribunal at [86] concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.

17. The Tribunal at [87]-[90] considered the complementary protection criterion for a protection visa and concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

    PROCEEDINGS IN THIS COURT

    Judicial review application and steps up to hearing on 7 May 2025

18. On 23 April 2021, the applicant lodged in this Court an application for judicial review of the Tribunal’s decision.

19. Following a period of inactivity, on 14 March 2025 the registry of the Court informed the parties that the matter was listed for hearing on 7 May 2025.

20. On 15 April 2025, the applicant filed an amended application (Amended Application) which advanced a single ground (as written):

    1.The Tribunal adopted a legally unreasonable process of reasoning in assessing the applicant’s credibility and thereby committed jurisdictional error.

    Particulars

    a.   At [70] of its decision, the Tribunal identified inconsistencies between the applicant’s account of the September 2014 incident before the delegate and before the Tribunal in circumstances where there was no real inconsistency.

    b.   The Tribunal did not assess the extent or significance of any such inconsistency, or explain how the inconsistency demonstrated that the applicant’s account was not credible.

    c.   The Tribunal mischaracterised or misunderstood the applicant’s explanation for any inconsistencies.

    d.   The Tribunal’s identification of a motive for the applicant to lie did not demonstrate that she had in fact lied.

    e.   At [71] of its decision, the Tribunal identified inconsistencies between the applicant’s account of the February 2015 incident but did not explain why it had rejected the applicant’s explanation for those inconsistencies.

    f.    The Tribunal impugned the applicant’s credit in relation to the February 2015 incident on the basis that she could not have accurately heard certain words being said, when the real question was whether she honestly believed those words were said.

21. On 9 April 2025, the applicant filed a written submission (AS).

22. On 29 April 2025, the first respondent filed a written submission.

    Hearing on 7 May 2025

23. At the hearing in this Court on 7 May 2025, Oliver Jones of counsel appeared for the applicant, and Greg Johnson of counsel appeared for the first respondent.

24. A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal. Mr Jones read an affidavit filed on 1 May 2025 which annexed a transcript of the hearing before the Tribunal on 11 March 2021.

25. Counsel then made oral submissions which supplemented their written submissions.

    CONSIDERATION

    Ground 1 – particulars (a)-(d)

26. The applicant claimed that in September 2014 an incident occurred which brought her to the attention of Hezbollah. The Tribunal at [67]-[70] considered the claim. The Tribunal expressed the view in the last sentence of [70] that “the inconsistencies and embellishments in the applicant’s evidence cast serious doubt on the claim that she came to the adverse attention of Hezbollah in September 2014”. Particulars (a)-(d) in ground 1 contend the Tribunal “adopted a legally unreasonable process of reasoning” in reaching its opinion in the last sentence of [70].

27. To assess the applicant’s contention in particulars (a)-(d), it is necessary to consider the Tribunal’s reasoning process and the applicant’s attack on the reasoning process.

28. The Tribunal stated at [67]-[70]:

    [67] The applicant has claimed to be a divorcee who was first harmed by Hezbollah in September 2014. Her evidence regarding that incident, discussed in more detail below, has been inconsistent and developing. The applicant has also claimed that she was subsequently stalked, threatened and intimated, and in February 2015 she was the victim of an attempted murder … For the following reasons, the Tribunal does not accept aspects of the applicant’s claims are credible and reliable.

    [68] In her written application, the applicant claimed that she was in dispute with Hezbollah members having been caught filming burning tyres blocking the road to Beirut airport. She claimed that on being spotted filming, “armed men” pushed her to the ground, took her camera and mobile phone and then brutally kicked her. The applicant has provided to the Tribunal copy of the delegate’s decision record. It records that the applicant’s oral evidence provided at her interview differed with respect to this alleged event. She claimed that she was initially in an argument with a man who tried to divert her through Al Dahia, a Shia suburb near the airport. She claimed that when she was out of the car he grabbed her mobile phone and the man subsequently found a caricature of the Hezbollah leader Nasrallah on her phone and angrily demanded to know if she was making fun of Nasrallah. She claimed that then another two men came to see what was going on and one warned her what could happen to her as they were in authority. She claimed, when she tried to take her mobile phone back, they started kicking her.

    [69] The Tribunal notes that in her oral evidence at her hearing the applicant gave a somewhat different account of what happened in September 2014. She told the Tribunal she was on her way to work when a Hezbollah member was diverting traffic through the Al Dahia area. She indicated that she could not do this because she did not know her way around and she needed to go to work. He insisted that she take the diversion. She started arguing with him and pleaded that she be allowed to proceed so she could go to work but he did not care. She then took out her phone to send her boss a message to explain why she was late and to notify clients and to film the roadblock.  The Hezbollah member told her to get out of the car and asked what she was filming and they started screaming at each other. This attracted the attention of two other men who came up and asked what they were arguing about. The first man told them that she was filming. She claimed the superior took her phone and found a caricature of Nasrallah. He asked if she was making fun of their leader. At the hearing she emphasised that she was screaming at them and arguing with them. She claimed one Hezbollah member was kicking her on the leg. She introduced a new claim that she then went off at him and said works to the effect “that’s enough. You are killing us”, to which they replied “you haven’t seen what we can do”. She claimed however that they returned her phone so she could call someone for help.

    [70] The Tribunal appreciates that the alleged event occurred over six years ago. However it notes that her account to the Tribunal differs to that provided to the delegate (which differed significantly to the written claims) and is somewhat embellished in that she now asserts that she argued and screamed at three armed Hezbollah members. This was despite acknowledging to the Tribunal that she was scared of Hezbollah members. The Tribunal has some doubts that the applicant would have engaged with three armed Hezbollah members in the manner she described at the hearing. It also notes that she did not mention in the written application the Hezbollah member finding the caricature on her phone. It has taken into account her explanation for this, that her first representative omitted to include it in her written application. However it is of the view that this is an important, highly relevant claim and it is not satisfied it would have been left out of her written application if it had in fact occurred. The Tribunal is concerned that the applicant has embellished her oral evidence at the hearing to overcome the issued raised by the delegate, that Hezbollah does not target ordinary Lebanese citizens and non-Shia critics of Hezbollah would not be a risk of harm unless they presented a direct threat to Hezbollah’s political power. Overall the Tribunal is of the view the inconsistences and embellishments in the applicant’s evidence cast serious doubt on the claim that she came to the adverse attention of Hezbollah in September 2014.

29. The applicant’s first attack on the reasoning process, identified in particulars (a) and (b) of ground 1, arises from the Tribunal’s reliance on “inconsistencies” in the last sentence of [70]. The applicant contends in particular (b) that “the Tribunal did not assess the extent or significance of [the inconsistencies] or explain how the inconsistency demonstrated that the applicant’s account was not credible”.

30. The Tribunal at [70] identified at least one inconsistency between accounts given by the applicant at different times concerning the incident in September 2014. The applicant told the delegate at an interview in April 2017 (see CB 94) and the Tribunal (see at CB 150 [33]) at the hearing in March 2021 that a Hezbollah member, with whom the applicant had an interaction at a road stop in September 2014, found a caricature of the Hezbollah leader Nasrallah on her mobile phone and “angrily demanded to know if she was making fun of Nasrallah” (CB 94). However, the applicant did not mention this incident in her protection visa application in March 2016. The Tribunal at [70]:

    (a)considered the significance of the inconsistency and opined that “this is an important, highly relevant claim”;

    (b)recorded the applicant’s explanation when the Tribunal member put this inconsistency to the applicant – being “that her first representative omitted to include it in her written application”; and

    (c)considered whether it accepted the applicant’s explanation for the inconsistency and did not accept the explanation on the basis that “it is not satisfied it would have been left out of her written application if it had in fact occurred”.

31. Relevantly, the applicant did not contend in this Court proceeding that it was not open to the Tribunal:

    (a)to find that “this is an important, highly relevant claim”; or

    (b)to reach a state of satisfaction that the incident “would [not] have been left out of her written application if it had in fact occurred”.

32. The applicant contends at AS [8(b)], based on the principle explained in cases such as BEL16 v Minister for Home Affairs [2019] FCA 1678; 167 ALD 295 (BEL16) at [20], that “it was incumbent on the Tribunal to assess the precise extent, nature and significance of that inconsistency” and the Tribunal did not do this.

33. In BEL16 at [20] Beach J stated that “even where there are inconsistencies or discrepancies in evidence, their significance and weight must be assessed having regard to the centrality or peripherality of the particular issue upon which the evidence is given”.

34. As explained in paragraph 30 above, the Tribunal not only considered the significance of the inconsistency in the applicant’s evidence and described the inconsistency as “important”, but also considered (and rejected) the applicant’s explanation for the inconsistency. Mr Jones did not explain precisely how the Tribunal did not apply the principal explained in BEL16 at [20]. Further, although the point is not determinative in considering whether the Tribunal did not apply the principal explained in BEL16 at [20], the delegate had the same concern about this inconsistency in the applicant’s evidence when he wrote in his decision: (CB 94)

    Having carefully considered these claims, I find that the applicant has failed to provide a consistent account of this incident. If the discovery of a caricature on her mobile phone had caused this dispute to escalate in the manner described, I am of the opinion that these important details would have been mentioned at the time of application. Consequently, I am of the opinion that the applicant has fabricated claims concerning the initial dispute with Hezbollah in order to establish claims for protection.

35. Further, as discussed with Mr Jones at the hearing, it is relevant that the Tribunal did not reject the applicant’s claim concerning the incident in September 2014 because of this inconsistency. The Tribunal merely concluded that the inconsistency, along with an embellishment explained at [70] and considered further below, “cast serious doubt on the claim that she came to the adverse attention of Hezbollah in September 2014”.

36. Particulars (a) and (b) do not identify a jurisdictional error in the Tribunal’s decision.

37. The applicant’s second attack on the reasoning process, identified in particular (c) of ground 1, is that “the Tribunal mischaracterised or misunderstood the applicant’s explanation for any inconsistencies”. The transcript of the hearing before Tribunal indicates that the applicant gave the following explanations for inconsistencies between the claims accompanying her protection visa application in March 2016 and her subsequent claims at interview with the delegate in April 2017 and at the hearing before the Tribunal in March 2021:

    (a)At P-17, in response to the Tribunal member’s statement that her oral evidence in relation to the incident in September 2014 was different to her written claims, the applicant replied:

    I must say I had a different representative in the beginning. And then I was telling him everything that was happened to me, and he was writing things down. He might have missed out stuff, and I don’t know what he missed out on, but I swore to tell the truth, and I’m telling you the whole truth now.

    (b)At P-19, in response to the Tribunal member’s question “Why are your subsequent claims so different to your written application?”, the applicant replied:

    Because I actually swore to tell the truth, and I’m telling you the truth of what happened. But like I said, my previous representative did not write down everything I said. This is what I’m surprised at.

    (c)At P-26 there was the following exchange:

    Tribunal Member:       And the delegate raised a number of concerns with your evidence. I have talked to you about one of those concerns, and that is that your written claims about your initial dispute with Hezbollah have been inconsistent with your oral evidence. You have indicated that’s because your first representative must have written down the wrong thing. Is there anything else you want to say about why those claims appear to be different?

    Applicant:Okay. I’m repeating or reiterating: I’m telling the truth, and I’m telling the truth as it happened now. And I don’t even know why he abbreviated everything I told him and he cut my story short the way he did. 

    Tribunal Member:       Well, it wasn’t cut short. It was different.

    Applicant:But whatever I have told you already – this is what happened with me.

1. It is stated at AS [11] that the Tribunal at [70] mischaracterised the applicant’s position because “her evidence was not that the agent had simply failed to write down a particular factual aspect of her claims … but that he had written down a totally different version of events”. I disagree. The applicant never claimed that the agent “had written down a totally different version of events”. I consider that the Tribunal at [70] properly characterised the applicant’s explanation, given to the Tribunal at the hearing in March 2021, and in particular recorded in the transcript at P-17, for inconsistencies between the claims accompanying her protection visa application and her subsequent claims in respect of the incident in September 2014.

2. The applicant’s third attack on the reasoning process, identified in particular (d) of ground 1, is that “the Tribunal’s identification of a motive for the applicant to lie did not demonstrate that she had in fact lied”. This attack is on the sentence at [70]: (Motive Finding)

   The Tribunal is concerned that the applicant has embellished her oral evidence at the hearing to overcome the issue raised by the delegate, that Hezbollah does not target ordinary Lebanese citizens and non-Shia critics of Hezbollah would not be at risk of harm unless they presented a direct threat to Hezbollah’s political power.

3. It is stated at AS [8(f) and (g)] that, “while the Tribunal sought to identify a motive for lying … the Tribunal did not provide any explanation as to why it considered that these additional details were fictious” and, even if the applicant had a motive to lie, “the supposed motive … does not provide a rational basis for the Tribunal’s approach”.

4. The Tribunal, in the last sentence of [70], concluded that “the inconsistencies and embellishments in the applicant’s evidence cast serious doubt on the claim that she came to the adverse attention of Hezbollah in September 2014”. The Tribunal, in the previous sentences of [70], provided reasons in support of this finding, including a concern in the Motive Finding to the effect that the applicant had intentionally, rather than accidentally, embellished her oral evidence at the hearing before the Tribunal to overcome an issue raised by the delegate. I do not accept that the Tribunal’s reasoning process was irrational. While it was not necessary for the Tribunal to consider whether the applicant had a motive to embellish her evidence at the hearing before the Tribunal, it was open to the Tribunal to consider this matter. Mr Jones did not explain why it was not reasonably open to the Tribunal to consider this matter. Nor did he explain why the motive, as found by the Tribunal, “[did] not provide a rational basis for the Tribunal’s approach”.

5. The applicant’s fourth attack on the reasoning process, although this does not appear in the particulars to ground 1, is that the Tribunal erred in finding that the applicant’s account to the Tribunal was “somewhat embellished” in comparison to the account provided to the delegate. The Tribunal at [70] identified the embellishment as the applicant asserting to the Tribunal that “she argued and screamed at the three armed Hezbollah members”. The transcript of the hearing before the Tribunal records the applicant’s evidence as follows: (P-13)

   Okay. First time, it was in September. I was going to work, and I was surprised that the road was closed. And it was Hezbollah – they had the road closed. And they were gesturing for us – they were diverting the traffic, telling us to go into Al Dahia area … And we started arguing – me saying that I don’t want to go in there, and he’s saying that I have to.

   Okay. So I was asking, ‘Can you please let me go through’, because first of all I’m going to work. I’m in a rush. I can’t waste time …  So he kept saying, ‘I don’t care’ to me, but even though I might be running late, that I need to go through Al Dahia, so at that time I took out my phone and I was videoing the road blockage, and in order – just the purpose of that, to send to my boss, to tell him that I was delayed because of that, and I will be late, and to notify my other clients not to take that road because they will be late.

   Okay. So he saw me filming, and he has asked me to get out of the car, and he has asked me, ‘Why are you doing this?’ I said to him ‘I’m just filming that to send it to my boss, so – because I work for a travel agent and I have to explain to him what’s happening, why I’m late’. So we started screaming at each other, and then two other guys from the road blockage came up to us to find out why we – what are we arguing about. One of them was a superior to the guy that I was arguing with, and he had asked him ‘What’s happening? What are you arguing about?’

   And the guy said to him, ‘Well, because she was filming the video in the road blockage’. So he took the phone off me. So my phone was confiscated, or they took the phone off me and they said – the guy that I first encountered, he told his superior, ‘Yes. She was videoing the road blockage’, and so they – the superior took his phone – the phone from him. And he was scrolling through my videos and my photo, and in a very, you know, way that he has got nothing else in the world to worry about except scrolling through my photos. And back then I had some caricature – caricature, am I saying that right in English?

6. In contrast, according to the delegate’s decision, the applicant described the incident as follows: (CB 94)

   The applicant claimed that she initially had an argument with a man who told her to take a detour through Al Dahia. The applicant claimed that after taking a photograph with her mobile phone, the man asked her to get out of her car. She claimed that once out of the car he tried to grab her mobile phone. The applicant claimed that the man subsequently found a caricature of the Hezbollah leader, Nasrallah, on her mobile phone and angrily demanded to know if she was making fun of Nasrallah. The applicant claimed that she became very upset and challenged the man's authority. She claimed that another two armed men came to see what was going on. She claimed that one of the men warned her: "We will show you what we do with you. We are here the authority', The applicant claimed that when she tried to take her mobile phone back one of the men started to kick her.

7. The Tribunal, after listening to a recording of the interview between the applicant and delegate, described the incident at [15] as follows:

   However, at her interview … she claimed that she had an argument with a man who told her to take a detour through Al Dahia. She claimed that after taking a photograph with her mobile phone the man asked her to get out of her car and, once she did, he tried to grab her mobile phone. She claimed that the man subsequently found a caricature of a Hezbollah leader, Nasrallah, on her phone and he angrily demanded to know if she was making fun of Nasrallah. She then challenged the man's authority. She claimed that two other armed men came to see what was going on and she was warned that they had authority. She claimed that when she tried to recover her mobile phone one of the men started kicking her.

8. I consider that it was open to the Tribunal to describe the applicant’s account to the Tribunal as “somewhat embellished”. The applicant told the Tribunal that she and a Hezbollah member were “screaming at each other”, which description involves the applicant “screaming” at the Hezbollah member and the Hezbollah member “screaming” back at the applicant, but did not use this or similar language in her description of the incident to the delegate. It is stated at AS [8(a)] that there is no difference “of any substance” between the applicant’s use of the word “screamed” to the Tribunal and the applicant’s use of the words “feud”, “dispute” and “argued” to the delegate. I disagree. In any event, the question for the Court is not whether the differences between the applicant’s versions to the delegate and the Tribunal were “of any substance”. The question is whether it was reasonably open to the Tribunal to describe the applicant’s version to the Tribunal as “somewhat embellished”. I consider this was open to the Tribunal.

9. None of the above four attacks identifies a jurisdictional error in the Tribunal’s reasons at [70].

   Ground 1 – particulars (e) and (f)

10. The applicant claimed that in February 2015 an incident occurred in which she was attacked by one or two men on motorcycles. The Tribunal at [71] considered the claim and concluded in the last sentence of [71] that “the applicant has manufactured this significant claim”. Particulars (e) and (f) in ground 1 contend the Tribunal “adopted a legally unreasonable process of reasoning” in reaching its conclusion in the last sentence of [70].

11. To assess the applicant’s contention in particulars (e) and (f), it is necessary to consider the Tribunal’s reasoning process and the applicant’s attack on the reasoning process.

12. The Tribunal stated at [71]:

    The Tribunal is also concerned that aspects of the applicant's evidence regarding the incident in February 2015 have been manufactured. It finds her description of the warning given by the man on the moving motorcycle "we'll show you what we can do to you" problematic. The Tribunal notes that the applicant was on a main road and there was the noise of at least two motorcycles in the vicinity, and the motorcycle was in motion. Yet she claims to have heard this message. She claims the second motorcycle then hit her and then both motorcycles took off. Despite being asked at least twice what then happened, and asked at the end of her hearing if she had any other claims, she did not repeat the claim that she was shot at. The Tribunal is of the view she did not repeat this claim because it did not happen. It has concluded the applicant has manufactured this significant claim.

13. The applicant’s first attack on the reasoning process, identified in particular (e) of ground 1, is that “the Tribunal identified inconsistencies between the applicant’s account of the February 2015 incident but did not explain why it had rejected the applicant’s explanation for those inconsistencies”. The applicant, in her protection visa application, stated in relation to the incident in February 2015 when she was attacked by one or two men on motorcycles:

    When they came towards me, one of them pushed me to the ground, took my camera and mobile phone and then kicked me brutally … When they were leaving they began shooting towards me.

14. In contrast, when the applicant described the incident to the Tribunal at the hearing in March 2021, she did not repeat the claim that she was shot at. The applicant contends in this Court proceeding that “the applicant had explained that she did not prepare her written application and that it was not an accurate account of what she said occurred” and “the Tribunal did not address this explanation or offer any reason for rejecting it”: AS [16]. A significant problem with this contention is that the applicant’s explanation to the Tribunal for inconsistencies between the written claims in her protection visa application and her subsequent oral evidence at her interview with the delegate and at the hearing before the Tribunal was that her former migration agent “missed out stuff” (P-17 line 4) and “did not write down everything” (P-20 line 3). But, the present inconsistency involved a claim in the protection visa application which the applicant did not repeat at the hearing before the Tribunal. The applicant did not explain this inconsistency to the Tribunal. The Tribunal cannot consider an explanation not provided by the applicant.

15. The applicant’s second attack on the reasoning process, identified in particular (f) of ground 1, is that “the Tribunal impugned the applicant’s credit in relation to the February 2015 incident on the basis that she could not have accurately heard certain words being said, when the real question was whether she honestly believed those words were said”. I disagree that the question for the Tribunal was whether she honestly believed those words were said. As stated by the Tribunal at [71], the applicant “claims to have heard this message”. She did not claim that she did not hear the message, but honestly believed (albeit erroneously) that she heard the message.  A question for the Tribunal was whether accepted, or did not accept, the applicant’s claim “to have heard this message”. The Tribunal, for reasons provided at [71], did not accept the applicant’s claim that she heard the message. The Tribunal thereby considered and rejected the claim made by the applicant.

16. Neither of the above two attacks identifies a jurisdictional error in the Tribunal’s reasons at [71].

17. Since ground 1 does not identify a jurisdictional error in the Tribunal’s decision, the application must be dismissed.

    COSTS

18. At the conclusion of the hearing, the Court invited submissions from the parties on costs. The parties agreed that the losing party should pay the winning party’s costs in the scale amount of $8,371.30. Accordingly, I will order that the applicant pay the first respondent’s costs in the amount of $8,371.30.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       29 May 2025