BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 70

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 70

File number(s): SYG 854 of 2017

Judgment of: JUDGE EGAN

Date of judgment: 10 February 2022

Catchwords: MIGRATION – Application for protection visas – country information relied upon to make adverse credibility findings against applicants – where corroborating evidence only acceptable if credibility of applicants was accepted – no jurisdictional error established – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.36(2)(a), (aa) and (2A), 499
Article 1A(2) of the 1951 Convention relating to the Status of Refugees
Ministerial Direction No.56

Cases cited: BZD17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 94
Minister for Immigration and Multicultural Affairs; Ex parte APPLICANT S20/2002 (2003) 73 ALD 1
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
BXK15 v Minister for Immigration and Border Protection [2019] FCAFC 76
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Division: Division 2 General Federal Law

Date of last submission/s: 2 February 2022

Date of hearing: 2 February 2022

Number of paragraphs: 37

Solicitor for the Applicants: Craddock Murray Neumann

Counsel for the Applicants: Ms T. Baw

Solicitor for the First Respondent: HWL Ebsworth Lawyers

Counsel for the First Respondent: Mr G. Johnson

Second Respondent: Submitting appearance save as to costs
ORDERS

SYG 854 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BFD17

First Applicant

BFM17

Second Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

10 FEBRUARY 2022

IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Amended Application for Review filed on 18 October 2021 be dismissed.
3.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review, as agreed, or failing agreement, to be assessed.

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 EGAN:
Introduction

The first and second named applicants are citizens of Nigeria who arrived in Australia on 9 May 2014 on tourist visas. They applied for Protection (Class XA) visas on 27 June 2014. The first applicant is the mother of the adult second applicant.
On 2 March 2015, a delegate of the Minister refused to grant the applicant a Protection (Class XA) visa.
On 31 October 2016, the applicants lodged an application for review of the decision of the delegate by the Administrative Appeals Tribunal (‘the Tribunal’).
On 15 February 2017, the Tribunal affirmed the decision of the delegate.
On 18 October 2021, the applicants filed an Originating Application for Review of the decision of the Tribunal.
At the hearing before the Court, the applicants relied upon an Amended Application for Review, the grounds of which were as follows:
“Ground 1
The Second Respondent (the Tribunal) was legally unreasonable in failing to give a proper, genuine and realistic consideration to the evidence of corroborating witnesses based upon its adverse credibility finding against the Applicants.
Particulars
(a) The Applicant’s relied on the evidence of corroborating witnesses to support their claims, including statutory declarations and oral evidence.
(b) The Tribunal, having made adverse findings about the Applicant’s credibility based on other evidence, determined that it did not give any weight to the evidence of the corroborating witnesses.
(c) In the circumstances, the Tribunal was required to disclose in its reasons an active intellectual engagement with the evidence of the corroborating witnesses, rather than rely upon its earlier credibility findings from other material.
Ground 2
The Tribunal erred by making findings material to the Applicant’s credibility that were without any logical or rational basis and unsupported by any probative evidence.
Particulars
(a) The Tribunal found that the Applicants gave consistent evidence, especially of the approach and attack by Boko Haram in August 2013, both overtime and between each other; and such evidence could be indicative of genuine claims for protection. However, the Tribunal dismissed that conclusion by circular reasoning – finding that the applicants were not credible witnesses.
(b) The Tribunal found that it had called the First Applicant’s husband by telephone in Nigeria. However, the transcript of the hearing showed that the telephone line was often inaudible and unclear; the Tribunal had difficulty understanding what was said; it was a very short conversation; and the Tribunal failed to ask any other questions to verify the identity of the speaker.
(c) The Tribunal found that contrary to the First Applicant’s evidence, the Second Applicant’s evidence did not sit his exams. However, the transcript of the oral evidence showed that the evidence was consistent. The First Applicant said that the Second Applicant was preparing to sit for his exams in November/December. The attack by Boko Haram happened in August, which caused him to stop attending school, so it was correct that Second Applicant did not get the opportunity to sit his exams.
(d) The Tribunal found that the First Applicant’s credibility was undermined as she initially did not take seriously the approach to recruit the Second Applicant by Boko Haram. That was irrelevant to whether the subsequent attack by Boko Haram actually occurred. It was an irrational, illogical finding, and unfounded by any probative evidence in the face of consistent evidence of the attack accepted by the Tribunal, and the corroborating evidence of witnesses that the Tribunal failed to properly consider.”
Consideration of Claims by Tribunal
At [12] – [13] of its reasons, the Tribunal recorded that it had had regard to the criteria for the grant of a protection visa, as set out in s. 36(2) of the Migration Act 1958 (Cth) (‘the Act’).
At [13] – [14] of its reasons, the Tribunal noted that it had had regard to the protection obligations under Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol.
At [16] – [22] of its reasons, the Tribunal recorded the four elements required for satisfaction of the refugee definition under Australia’s protection obligations pursuant to the Convention. Those were as follows:
“[16] There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
[17] Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve 'serious harm' to the applicant (s. 91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of 'serious harm' are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
[18] Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
[19]Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition: race, religion, nationality, membership of a particular social group or political opinion. The phrase 'for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared s.91R(1)(a) of the Act.
[20] Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of being persecuted for a Convention stipulated reason. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
[21] In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression 'the protection of that country1 in the second limb of Article 1 A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
[22] Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.”
At [23] – [25] of its reasons, the Tribunal appropriately set out the relevant considerations when assessing Australia’s complimentary protection obligations pursuant to the provisions of s. 36(2)(aa) and 36(2A) of the Act. It found as follows:
“Complementary protection criteria
[23] If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
[24] 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.
[25]There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.”
At [26] of its reasons, the Tribunal relevantly noted that it was required to take into account policy guidelines as set out in Ministerial Direction No.56 made pursuant to the provisions of s. 499 of the Act.
At [28] of its reasons, the Tribunal listed the substantial amount of material which it had before it as follows:
“Consideration of Claims and Evidence
[28] The Tribunal has before it the Department's file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
•The applicants' protection visa applications of 27 June 2014 including identity documents and claims for protection made within the Part C forms of both applicants.
•Oral evidence of the applicants at the Department interview held on 9 December 2014 and at the Tribunal hearing held on 17 October 2016.
•Statutory Declaration of the first named applicant dated 4 August 2014.
•Statutory Declaration of the second named applicant dated 25 August 2014.
•Photographs of the first named applicant allegedly showing injuries suffered in the August 2013 attack including an injury below the eye and scars submitted to the Department on 7 August 2014.
•Photographs of the burnt church belong to the applicants submitted to the Department. They claim it was burnt by Boko Haram in August 2014.
•Affidavit from [name of person omitted] (first named applicant's minor daughter) dated 19 October 2014 indicating that her mother and brother travelled to Australia as they received threats from Boko Haram members. She outlined that on 6 August 2013 they were in the house when strange masked men came looking for her brother, her brother went to the ceiling for safety and they went in another room. She claims she heard her mother calling for help. She claims her mother and brother were seriously beaten and then her mother ran away and travelled from house to house. She claims they no longer live in the house for their safety. She claims her parents' reported it to the police but they did not help.
•Letter from Evboriaria Community to the first named applicant indicating that the applicant's house was set ablaze on 29 August 2014. The letter writer claims she saw strange men coming and they tried to stop them but could not do anything. She notes that during the investigation they found they were members of Boko Haram and that they noticed they continue to come to the area searching for the first and second named applicants.
•Affidavit by [name of person omitted] indicating that on 6 August 2013 some strange masked men came to the premises of the applicants, she heard the first named applicant and children shouting that their mother is dead after the gangs left. She claims she saw the first named applicant on the floor almost dead after the beating and she was rushed to hospital. She claims she was told by the first named applicant that the gang were members of Boko Haram and they tried to involve her son but she objected and they returned. She refers to the threats against the applicants and that they need protection in Australia.
•Education Certificate indicating the first named applicant achieved a Post Graduate Diploma in IT in October 2012 and other education certificates.
•Operational Certificate indicating the first named applicant was ordained as a Pastor on 24 June 2000 by the Christian Association of Nigeria.
•Loan agreement between the applicant and Aiso Christmas Savings in the sum of 80,000 Niara dated 29 May 2014. The first named applicant claims they borrowed this money via [name of person omitted] from the Christmas Saving to travel to Australia. Also included was an affidavit from [name of person omitted] confirming the loan and that he was the Guarantor.
•Certificate of Incorporation of the Pleroma-Church of Christ on 6 February 2009 with the first named applicant named, among others.
•Photo of the first named applicant with her husband holding a church book.
•Photographs claimed to be at a Rotary Meetings in Benin City and first named applicant's Rotary Membership and participation Certificates.
•Letter from the President, Rotary Club, Benin City dated 18 November 2014 indicating the first named applicant has been a member since 2009. It indicates that the club is aware of her situation as they witnessed her pain and stress during her stay in Nigeria.
•Letter from Rotary International to the second named applicant dated 12 December 2011 in respect of him being President of the Interact Club while a student at Western Boys High School. Also included was a Certificate of Participation indicating the second named applicant participated in the Rotary Leadership awards in 2011.
•Photographs of their burnt church the applicants' claim was burnt in August/September 2014, after their arrival in Australia.
•Letter from Medibank dated 3 July 2014 indicating abdominal pain and RLQ scar which is noted to be from previous attack at home.
•Letter from a Counsellor at STARTTS dated 10 July 2014 indicating the first named applicant reported a range of symptoms associated with posttraumatic stress, depression and anxiety. It notes the applicant is not capable of undertaking paid employment for a period of at least three months and the counsellor requests urgent financial assistance be provided to her.
•Letter from Professor Mark Harris dated 1 December 2014 indicating he holds a Bachelor of Surgery and Medicine, Diploma of Obstetrics and Gynaecology and is a member of the Fellowship from the Australian College of General Practitioners. He claims the first named applicant first presented to him at the Asylum Seekers Centre on 9 August 2014. He notes that the first named applicant claims she was attacked and beaten by the rebel army who wanted to recruit her son and since the attack she has been unable to have a sexual relationship with her husband. He claims she suffers from depression with features of PTSD including difficulty sleeping and concentrating, nightmares, loss of memory and agitation. He prescribed Setraline and referred her for psychological counselling.
•Report of Danielle Tompson, counsellor dated 4 December 2014 with regard to the first named applicant. The report indicates she was treated from 22 August 2014 to 20 November 2014 over six sessions. She indicates the applicant outlined the persecution, harassment, torture and traumatic events that the she and her family had endured at the hands of Boko Haram. She notes the applicant also referred to her concerns for her children in Nigeria and the breakdown of her marriage that has resulted from the escape. She noted the applicant attended with symptoms of post-traumatic stress, depression and suicide with passive suicidal ideation. Ms Tompson referred to treatment focussing on trust and rapport, psych-education, identifying protective factors, strength and resilience, case management, referral to STARTTS groups for social support and referral to physiotherapy and grounding techniques.
•Report titled "Why do youth join Boko Haram?" by Freedom Onuoha dated June 2014 published in the United States Institute of Peace undated and submitted to the Department. This article discusses why youth have become radicalised and join this group. Its area of research was focussed in North east Nigeria. It refers to attacks by Boko haram in Borno, Gombe, Jigawa, Kaduna, kobe, Kohe, Niger Plateua and yobne states as well as the attack on the capital Abuja in August 2011 when it attacked a UN compound situated there. It refers to the state of emergency declared in May 2013 in the most" affected states of Adamawa, Borno and Yobe.
•Report from Human Rights Watch “Nigeria Boko Garam Abducts Women, Recruits Children" dated 29 November 2013. It reports on their visit to Kano and Maiduguri in North East Nigeria. It reports on attacks in Borno, Yobe and Adamawa states in North east Nigeria.
•Letter from the second named applicant received 25 October 2016 advising that the first named applicant was at the point of committing suicide when the police came and prevented it and took her to Blacktown Mental Health Hospital where she is admitted for mental issues, depression, sleepless nights and is in an emotionally unstable condition. He claims he noticed changes in her after the hearing which brought to her a fear of being removed home where she will face the terrible treatment she encountered with the sects which almost took her life but left behind numerous cuts around her body.
•Letter from Roma Price of the Rotary Club of Blacktown dated 18 September 2016 supporting the application and the character of the first named applicant. It notes he met the applicants in Australia and refers to the persecution they endured in Nigeria and supports their character and notes the first named applicant is on the Rotary board and holds the position of Vocational Service Director.
•Letter from Melvin Gray, President, Rotary Club of Blacktown dated 29 September 2016 attesting to the character of the first named applicant and her role as Vocational Chairman. He also attests to the positive character of the second named applicant. He notes that he is in awe of her positive and forgiving nature when one understands the persecution she faced in Nigeria. He refers to her commitment to her Christian beliefs.
•News article dated 19 August 2014 indicating the arrest of suspected Boko Haram suicide bombers at Lagos Airport dated 19 August 2014.
•News article indicating Boko Haram claim Lagos and Abuja attacks dated 14 July 2014. It notes that there were two blasts at the Lagos depot killing two persons and a bombing in the capital, Abuja killing 24 people.
•News article indicating two Boko Haram suspects were arrested in Lagos.
•Article dated 15 July 2014 indicating that Boko Haram has extended its reach referring to the explosion in Lagos in. the ports district referred to in the news article above.
•News Articles as to Bomb Threats at the University of Ibaden conducted by Boko Haram.
•News articles from 2015 regarding Nigeria being the tenth most dangerous place for Christians in 2015 and referring to the abduction of the 200 girls in the North by Boko Haram.
•News article referring to increased military presence in Nigeria in states including Edo to deal with organised crime.
•Article indicating that the UN Condemns Boko Haram Violence in Nigeria, noting nine million had been displaced and 50 children had been coerced to carry out suicide bombings.
•Article dated 31 August 2015 stating that Boko Haram had spread to Lagos, noting that 12 members had been arrested in Lagos and in the south eastern city of Enugu.
•Report dated 24 November 2015 warning of a Boko Haram attack in Lagos in the ports.
•Report indicating that a mosque and Islamic school was attacked in Benin City dated 10 January 2012 and noting Christians who live in the north were being registered in Benin City escaping Boko Haram.
•News article referring to Boko Haram remaining a threat dated 14 May 2016 when international leaders met in Abuja.
•News article indicating that the police had arrested 150 suspected Boko Haram insurgents in Ondo, who were coming froth another part of the country, although the suspects said they were farmers.
•US Nigeria Travel Warning dated 3 August 2016 referring to areas to be avoided because of Boko Haram and kidnapping. Edo State is not referred to.
•News article dated 3 February 2016 referring to a bomb in Benin City destroying five houses, and noting that the police invaded and arrested the suspects. It was thought they were from Boko Haram.
•Dental Report relating to the second named applicant dated 3 November 2014.
•Reports and medical notes from September 2016 with regard to gynaecological problems, loss of blood and need for an operation with regard to the first named applicant.
•Photos of the first named applicant's other minor children in Nigeria concerning her claims that their father has left them and disappeared and they tried to go to a relative but she told them they should go to the church.
•Letter from Gary Raymond, a retired police force member and member of the Rotary Club of Blacktown among other organisations. He claims he has known the applicants for two and half years, and attests to their positive character. He notes they are committed Christians and that they have related distressing stories of life threatening events in Nigeria. He notes deprivation and harassment was part of their dangerous life in Nigeria. He claims as a thirty four year old veteran he has observed genuine fear by both applicants should they be sent back to Nigeria. He is certain they would be strong assets to Australia.
•Letter from Dr Dickens, former Mayor and long serving Counsellor of Blacktown Council supporting the applicants. He notes he is impressed by the first named applicant's knowledge of local Australian affairs and her ability to integrate into the Australian way of life. He claims he is fully aware of the background in Nigeria and if refugee status is granted is sure the applicants would make excellent citizens.
•Letter explaining why the applicants should be given protection received post hearing, including photos of their destroyed church. The applicants provide 'information as to Boko Haram and the first named applicant states she does not fear return on account of her Rotary membership and Christianity. Also attached are news articles and reports, plus information as to where Western Boys High School is positioned. She also refers to articles referring to the recruitment of Boko Haram beyond its borders from December 2014. Also included is a letter from [name of person omitted] dated 19 October 2016 indicating he loaned her the money to repay the debt she gained to flee Nigeria. He notes she has repaid him in full.
•DFAT, DFAT Country Report Nigeria - 10 February 2015
•Department of Immigration - PAM3 Refugee and Humanitarian - Complementary Protection Guidelines and PAM3 Refugee and Humanitarian - Refugee Law Guidelines.”
(names of people omitted)

At [30] – [38] of its reasons, the Tribunal relevantly recorded the applicants’ claims as follows:
“[30] The first named applicant (the applicant) claims in her protection visa application that she left Nigeria as in mid-2013 her son complained of people coming to his school to recruit him into a violent rebellion against the Nigerian government. He claims they offered him a free cell phone and recharge card and a monthly salary of $100 if he agreed to spy for their organisation. She claims his school is at Ramat Park junction, a gateway to the Muslim communities and areas. She refers to Boko Haram as the group that tried to recruit her son and claims they are hell bent on destroying education, Christianity and trying to impose strict Sharia Law as the law of Nigeria. She claims many politicians and rich Nigerians are working and sponsoring this organisation and they have creeped into all the nooks and corner of the state of Nigeria. She claims they want to remove the current President and destroy the nation for their own political agenda.
[31]She claims at first she told her son, the second named applicant, to ignore these people as he was just 15 years old, and then they came again and he asked them why they were interested in him. She claims they said to him that it is because he is young, smart, intelligent and has good computer skills and he was recommended to them and has been watched for a long time in school. She claims they wanted her son to act as a spy and monitor the movement of police, soldiers and other law enforcement officers in the school, market and other strategic places in the community and report to them. She claims a lot of Nigerians have lost their lives working for different militant groups and she did not want her son to be involved in such activities as they are Christian and she is a Pastor of the Church.
[32] As to the harm experienced in her country she claims that on Monday afternoon 24 June 2013 she approached the man who had been trying to recruit her son. She claims he lives close to their home and is known as a political thug and said to have different ammunitions and been released by the police many time. She claims she told him she did not want her son involved in the organisation and that he was a child and she wanted him to stay at school. She claims he was angry in response and advised her that he had been paid and he would deal with her and her son. She said he advised she could report him to the Commissioner of Police but he is the law.
[33] She claims on 6 August 2013 a group broke down their kitchen protector, windows and removed bars and came into the kitchen and then opened the door for others to enter. She claims they started asking for her son and they were shouting and she called the police but they did not come. She claims she advised her son to enter the ceiling and the men were shouting and destroying things and kicking property and asking for her son. She claims while they were there they saw her rotary things, such as stickers, banners and photos and rotary are known to support western education. She claims they now knew she was a rotary supporter and this put them both at further risk. She claims they started beating her and telling her that she should bring her son out. She told them she did not want her son to join and her husband and children were taken to another room. She claims one of the men slapped her four times, started kicking her and brought a knife and stabbed her arm and stomach and tore her dress. She claims he was about to rape her and he stabbed her in the tights and was using different tools to hit her. She claims while her husband and other children were locked in another room everyone was screaming and then her son came down because of the screaming, then they beat him and slapped him and she fainted.
[34] She claims she spent 5 days in hospital and then she and the second named applicant went to Ghana and Toga and they started receiving text messages from Boko Haram. She claims Boko Haram would treat them like that wherever they found them and that they would not leave her son alone if she did not give him up to join them.
[35] She claims to have been a member of Rotary for 6 years and her son was a president of Rotary at his school. She claims the Rotary convention enabled them to come to Australia and to survive.
[36] She claims she will face death on return.
[37] She claims the Boko Haram men who attacked her are still there and she claims she will never allow her son to be recruited; hence she will be harmed and mistreated more than before. She claims police protection is unavailable as the authorities are afraid of Boko Haram.
[38] The second named applicant repeats the claims of his mother. He said he did not want to be involved in Boko Haram and be recruited by them as he is a Christian and many young Nigerians have lost their lives working for them. He claims they came to his home and attacked him in August 2013 as he refused to be recruited.”
Consideration of Grounds for Review
Ground 1 of the Amended Application for Review was a claim that the Tribunal was legally unreasonable in that it had failed to actively intellectually engage with evidence which was submitted as corroborating the claims of the applicants that they were at risk of serious harm should they be returned to Nigeria because of the group known as Boko Haram. On the question as to what constitutes active intellectual engagement with corroborative evidence, the Full Court of the Federal Court in BZD17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 94 at [45] – [51] inclusive, per Perram, Perry and O’Callaghan JJ, said as follows:
[45] In our view, however, these passages reveal a failure by the Tribunal to give a proper, genuine, and realistic consideration to the evidence of Mr C. In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct.
[46] In this regard, while the Tribunal states that it gives Mr C’s detailed evidence about the appellant and Mr B “little weight”, logically (as the Minister accepted) the Tribunal decision must be read as having rejected the totality of that evidence. The question then arises as to the reasons, if any, that the Tribunal gave for its comprehensive rejection of Mr C’s evidence regarding the appellant and Mr B.
[47] First, there is no suggestion by the Tribunal, for example, that Mr C mistakenly confused the appellant with someone else.
[48] Secondly, while the Tribunal finds at [87] that the “totality” of the appellant’s evidence reveals that he has “consistently fabricated claims and [has] been deliberate in his actions in order to present himself to a range of people as gay”, there is no consideration of why the appellant might have presented himself to Mr C as a gay man in Cameroon if that was not true. Mr C’s evidence was that he met Mr B in Cameroon in or around mid-May 2011, whereas the appellant did not arrive in Australia and apply for a protection visa until mid-2014, some three years later. As such, to the extent to which the Tribunal gave any real consideration to Mr C’s evidence, it must be inferred that the Tribunal found that Mr C’s evidence was fabricated, as the Minister accepted.
[49] Thirdly, there is no attempt by the Tribunal to analyse Mr C’s evidence and explain why he must have lied. It appears from the Tribunal’s reasoning at [133] that the Tribunal relied upon the alleged failure by the appellant to mention his involvement in the human rights group run by Mr C, but this does not logically explain why Mr C would have lied about that involvement and his prior association with the appellant and Mr B. Nor does the Tribunal give any consideration as to why Mr C might have fabricated such an elaborate story. It seems that the Tribunal even doubts Mr C’s evidence to have been a human rights activist for gay people in Cameroon, describing this merely as “claimed” by Mr C, without giving any apparent consideration to the press reports of Mr C’s significant activities in this field in Cameroon.
[50] As such, ultimately the appellant is “left to guess” why the Tribunal rejected Mr C’s evidence and whether, if at all, the Tribunal engaged intellectually with that evidence. Applying the principles earlier referred to, it follows that the Tribunal has failed to engage in an active intellectual manner with the evidence of a critical witness and has thereby fallen into jurisdictional error.
[51]In addition, we note that the transcripts of the Tribunal hearings also disclosed a troubling lack of any attempt to engage intellectually with the substance of Mr C’s evidence in the Tribunal’s questioning of Mr C. The Tribunal’s questioning of Mr C occupies less than three pages of the transcript and focuses only upon why the appellant had not mentioned that he and Mr B had volunteered on Mr C’s project and why the alleged attack on the appellant and Mr B was not reported by any gay rights organisation publicly or otherwise. The Tribunal never put to Mr C that his evidence was fabricated or sought to explore why that might be the case.”
In the present matter, when referring to the evidence of one corroborating witness, the Tribunal referred to that person’s evidence at [51] of its reasons, and found as follows:
“[51] [witness name withheld] gave evidence from Nigeria that it was not a safe place for the first named applicant and her son to come and live. She said Boko Haram was looking for the applicants and they should not return. She said the problem arose as the first named applicant would not let her son be recruited by Boko Haram.”
(name of person omitted)
The Tribunal at [56] – [94] of its reasons considered country information from a large number of sources. Having done so, the Tribunal concluded that Boko Haram was not active in Edo State where the applicants had formerly lived, and that, therefore, the applicants had falsified their evidence relating to Boko Haram activity in Edo. It was found that the giving of a false account was done with a view to obtaining a positive visa outcome.
The country information considered by the Tribunal, and as referred to by the Tribunal in its reasons, did make some reference to fears expressed by people living in Edo State about Boko Haram activity. At [70] of its reasons, the Tribunal referred to reports of school closures feared to be related to Boko Haram. At [72] of its reasons, the Tribunal recorded a newspaper report of 22 August 2016 to the effect that the security service had foiled attempts by Boko Haram elements to launch attacks on targeted locations in Edo State as well as other states. At [73] of its reasons, when referring to a Nigerian army event held in Benin city on 12 August 2016 (Benin is the capital of Edo State), the Governor of Edo thanked the army for ensuring peace and security of the state, “ … especially in defeating the Boko Haram terrorists”. That speech was reported in an article entitled “Boko Haram’s defeat makes us proud of armed forces”. [1] At [74] of its reasons, the Tribunal recorded that some two weeks after the Nigerian army event referred to in [73] of its reasons, local Edo State elections were postponed because of security concerns and threats of terror activity which were reported by The Guardian newspaper on 15 September 2016 under the heading “Postponement of Edo Election Not A Good Advertisement For Nigeria”. [2] Though the Tribunal recorded that DFAT advice was to the effect that Boko Haram largely operated in the North-East of Nigeria, there were occasional reports of BH cells operating in states throughout Nigeria.
[1] Footnote 18 at Court Book (CB) p. 518.
[2] Footnote 20 at CB p. 518.
The Tribunal found that those recorded fears were unsubstantiated, and did not support a finding that there had been any relevant Boko Haram activity in Edo State, which was geographically in the most southerly part of Nigeria. It was entitled to so find based upon the country information before it.
Having made the findings that it did, the Tribunal was entitled to look at the evidence of the applicants, and that of the corroborating witnesses, in such light.
The Tribunal’s adverse findings on credibility were set out at [122] – [139] as follows:
“[122] For all the above reasons, considered cumulatively, the Tribunal does not find the applicants to be a credible, truthful and reliable witness as to these claims. The Tribunal is of the view that in regard to these claims, the applicants have fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility, concerns the Tribunal therefore does not accept that the applicants are credible witnesses and cannot be satisfied on the evidence before it that the applicants are truthful witnesses as to their claims to have been targeted by Bomboi and Boko Haram; as well as the family of the first named applicant's husband.
[123] In making the above findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, being emotional and the manner in which responses can differ depending on the nature and manner of which a question is asked.. It is also sensitive to the various cultural differences that can impact on an applicant's responses to questioning, as discussed in the Tribunal's 'Guidance on the Assessment of Credibility'. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicants are not reliable witnesses as to these claims.
[124] The Tribunal has also considered the letter from the Counsellor at STARRTS dated 10 July 2014, dated 1 December 2014 and the Report of Danielle Tompson dated 4 December 2014 as to the applicant's mental health. These reports indicate that at that time the applicant suffered post-traumatic stress, depression and anxiety. There is also a report from Professor Mark Harris, who reports the applicant suffers depression with features of PTSD including difficulty concentrating, sleeping, nightmares, loss of memory and agitation. The report of Danielle Tompson refers to treatment in 2014. The Tribunal has also considered the reports as to gynaecological problems of the first named applicant. The Tribunal does not accept that the applicant's recall of events has been so affected by memory difficulties arising from psychological condition reported on in 2014 or because of reported medical conditions in 2016 that explains the concerns about her evidence. The applicant has been able to over time to produce detailed declarations as to the claimed past experiences. While the applicant may have been affected psychologically in 2014 as noted in the reports and medical conditions in 2016 there is nothing which indicates to the Tribunal that the applicant is so affected that she would be unable to give a consistent account of the claimed events over time. Taking into account the psychological evidence and medical evidence, the Tribunal therefore does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
[125] These reports also refer to the difficulties faced by the applicants in Nigeria. The Tribunal accepts that the report writers believe the applicant's account of her past experiences in Nigeria and fears of return. However, the Tribunal had the opportunity to take detailed oral evidence from the applicants and to have considered the independent evidence raised above. These reports appear to be made on the basis of the applicant's evidence at face value. These reports do not outweigh the significant credibility aspects outlined above and do not lead the Tribunal to change its view that the applicants are not a credible witnesses.
[126] The Tribunal has also taken into account the first named applicant's comments at hearing about not wanting to return to Nigeria and that at one stage she was very emotional at the hearing. It has also considered the letter from the applicant's son received after the Tribunal hearing indicating that following the hearing the applicant was admitted to Blacktown Hospital for mental depression, sleepless nights and being in an unstable condition. These claims do not outweigh the significant credibility aspects outlined above and do not lead the Tribunal to change its view that the applicants are not credible witness. This is particiculary so as a major aspect of the credibility finding is based on objective evidence.
[127] The Tribunal has also considered dental problems as to the second named applicant which it is claimed occurred as a result of the second named applicant being hit by a gun in the August 2013 attack. However this report does not outweigh the significant credibility aspects outlined above and do not lead the Tribunal to change its view that the applicants are not credible witness. This is particiculary so as a major aspect of the credibility finding is based on objective evidence.
[128] In making this finding the Tribunal accepts that information has been consistent over time between the first and second named applicant's, particiculary as to the approach and attack by Boko Haram in August 2013. However the Tribunal considers that while such consistent evidence could be indicative of genuine claims for protection, in this matter it does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicants are not credible witnesses.
[129] In making this finding the Tribunal has considered the oral evidence of each of the applicants supporting the other's claims. It accepts their evidence was generally consistent. It has also considered the oral evidence of [name of person omitted] who indicated the applicant's children in Nigeria were not in a safe place. She said the applicants were not safe and Boko Haram is looking for them. She said it is because Boko Haram wanted the second named applicant to join them but the applicants refused. She said they should not return and it is not safe for them to live in Nigeria. However, the Tribunal has found on these set of claims that the applicants are completely lacking in credibility. The Tribunal considers that the evidence of [name of person omitted] and that of the applicant in support of each other's case does not lead the Tribunal to change its view, for the reasons outlined above, that the applicants are not credible witnesses as to these claims.
[130] In making this finding, the Tribunal has considered the statutory declaration's made by [name of person omitted] and Evboriaria Community as to the burning of the church/house in August 2014, affidavit of [name of person omitted] and letter from the President of the Rotary Club in Nigeria date 18 November 2014. However, given the fundamental lack of credibility of the applicants' evidence, the Tribunal does not give any weight to these statutory declarations and their contents.
[131] The Tribunal has also considered the medical report from Medibank in Australia as to the scar on the first named applicant being from a previous attack at home. It has also considered the photographs submitted as to the scars on her body and injuries suffered as evidence of her claims and attack by Boko haram. The Tribunal accepts that the applicant sustained injury and has scars on her body as claimed. However the fact that the applicant has scars and evidence of past injuries does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicants are not a credible witness as to their claims and sustained the injuries and scars in the manner claimed for the reasons claimed. With regard to the Medibank report information in the report as to how the scars occurred is based on information provided by the applicant. Based on the Tribunals' finding as to the credibility of the applicants' claims it places no weight on this as evidence of the attack by Boko Haram.
[132] The Tribunal has also considered the evidence of the photos of the first named applicant’s children in Nigeria being destitute and that she is paying rent for them. However, given the fundamental lack of credibility of the applicants evidence, the Tribunal does not give any weight to these statutory declarations and their contents as evidence as to their claims or that the children are destitute or at risk form Boko Haram as claimed.
[133] The Tribunal has also considered photographs of the burnt church and their house compound, and video via What's App as evidence this was burnt down and attacked by Boko Haram in 2014. While the Tribunal accepts that the church/house may have been burnt down on the basis of the applicants' lack of credibility it does not accept it was burnt for the reasons claimed.
[134] The Tribunal has also considered the letters of Gary Raymond, Dr Dickens, Melvin Gray and Roma Price, who first met the applicants' in Australia, as to the applicants' positive credibility and the difficulties they faced in Nigeria. The Tribunal accepts that the writers believe the applicants' account of their past experiences in Nigeria and fears of return for the reasons they claim. However, the Tribunal had the opportunity to take detailed oral evidence from the applicants and to have considered the independent evidence outlined above. These letters appear to be made on the basis of the applicants' evidence at face value. These letter do not outweigh the significant credibility aspects outlined above and do not lead the Tribunal to change its view that the applicants are not credible witnesses.
[135] Accordingly, for all of the above reasons, in light of its findings that the applicants are not reliable witness as to these claims, the Tribunal has no confidence in accepting that key aspects of these claims were based on their personal or actual experiences and considers it was fabricated to create a claim to be owed protection. It follows it does not accept as true that the second named applicant was approached by Bomboi who acts for Boko Haram and other Boko Haram members at his school or anywhere else on any occasion in 2013 or 2014, and requested or threatened or brined with money and a phone to join Boko Haram. It follows it does not accept as true the first named applicant approached Bomboi and Boko Haram and argued with them regarding her son being recruited by Boko Haram in the manner claimed. It follows that as a result of the second named applicant not agreeing to being recruited and the first named applicant approaching and questioning Bomboi and Boko Haram, the applicants together with her husband and children were subjected to an attack in August 2013 in their home by Bomboi and other Boko Haram members. It follows it does not accept as true that any of the applicants or their family was beaten, kicked, threatened, stabbed, harmed, sexually assaulted, hit with a gun or a gun was forced in their mouth or physically and verbally abused by Bomboi and Boko Haram. It follows it does not accept as true that when they entered the house they saw they were members of Rotary and support western education and are also Christians and this exacerbated their desire to harm them. It does not accept that as a result of this attack by Boko Haram the applicants spent time in hospital, complained to the police and they did nothing and went into hiding in Togo, Ghana, anyone else's home or in Lagos or anywhere in Nigeria. It follows it does not accept as true the applicants were threatened on the phone by Boko Haram that they would harm them or their family and were in hiding at any time in Nigeria or Togo and Ghana for the reasons claimed. It follows it does not accept as true they were ever threatened with death. It follows it does not accept as true they fled from Nigeria due to a fear of Bomboi and Boko Haram.
[136] It follows it does not accept as true they were ever targeted by Boko Haram in Nigeria either at school or in their home or in Togo or Ghana or anywhere else in Nigeria as the second named applicant refused to join them, as the first named applicant approached them and argued against her son's recruitment or as she questioned them or embarrassed them in the argument, as they are Christians, as they are members of Rotary, as the first named applicant is a Pastor or married to a pastor or as the second named applicant is the son of a Pastor and they want to convert him to Islam. It follows it does not accept as true that they fled Nigeria in fear of Boko Haram for any of the reasons they claim.
[137] It follows based on the applicant’s lack of credibility that it does not accept as true that before or after they departed their house/church, which is in the same compound, was attacked and burnt by Boko Haram, that they threatened the applicants and their family, or that her children in Nigeria have gone into hiding or her husband has disappeared because of a fear of Boko Haram or for any of the reasons claims. It follows it does not accept her children are at risk of being targeted by Boko Haram and are destitute for this reason.
[138] The Tribunal rejects the applicants’ claims in their entirety as to the difficulties they faced at the hands of Boko Haram for any of the reasons they claims and rejects that they fear return on this basis.
[139] Based on the first name applicant’s lack of credibility it also does not accept that she faced any of the difficulties claimed from her husband’s family, including being slapped, threatened or them taking her car due to her influence over her husband and the will. It follows it does not accept as true she departed Nigeria for this reason or fears return on this basis. The Tribunal rejects the entirety o the applicant’s claims as to why they fear return to Nigeria from her husband’s family.
Do they have a well-founded fear of persecution in relation to Nigeria and the protection obligations under the Refugees Convention and do they meet the protection obligations under the complementary protections provisions of the Migration Act?”
(names of people omitted)

Another aspect of the applicants’ claims which the Tribunal found to be implausible related to the continued enrolment of the second applicant at his school at a time after it had been alleged that he had been singled out for recruitment by Boko Haram. The Tribunal was entitled to make such finding based upon the evidence before it. At [95] – [100] of its reasons, the Tribunal found as follows:
“[95] The Tribunal views as undermining the applicants' evidence that despite both claiming many boys had been recruited by Boko Haram in schools in the area, including forcibly and indicating' it was also happening at [name of place omitted] around the time the second named applicant was approached neither took the approach by Bomboi and other Boko Haram members seriously when they approached the second named applicant at his school. This is particiculary so as both outlined the dangers and fears of Boko Haram at the time. The evidence in the post hearing submission was that the first named applicant at first thought he was joking, until confronted by them. Their evidence is the second named applicant remained at school until the attack in August 2013 after the initial approaches in June 2013 at his school.
[96] When raised with the first named applicant she provided a vague response and referred to an incident where her son was threatened at Granville Boys High School in Sydney. She said he was threatened and did not want to go to school and he said he did not come to Australia to fight. When the Tribunal raised with her that a school yard issue in Australia appeared far less serious than recruitment by Boko Haram, and questioned why she did not take it seriously and he remained at school, she confirmed she thought it would be ok and she said her son wanted to go to school. She said her son was getting ready for his final exams. She said she thought it was a joke and did not take it seriously. She said as a Christian she thought he would not be harmed and children always want to go to school.
[97] When raised with the second named applicant why he would take the approach of Bomboi and Boko Haram not seriously when it was his evidence that other boys had been forcibly recruited from his school by Boko Haram and boys had been recruited around his area and everywhere by Boko Haram; he said he did not believe they were coming for him and wasn't sure 100%.
[98] The Tribunal also raised with the applicants via S.424AA that despite the first named applicant saying the second named applicant had to go to school to sit his exams as reason why he went back until August 2013 and stayed after the initial approaches by Boko Haram, the second named applicant indicated he was not undertaking exams. This further undermines the first named applicant's credibility and response as to why the second named applicant remained at school.
[99] The Tribunal does not accept the applicants' responses as explaining the Tribunal's concern in this regard. It does not accept the applicant thought he was joking or would have, if her claims were true as to the extent of recruitment in the area and at her son's school. It does not accept that she did not take it seriously for the same reasons, or as a Christian prayed or that as he was the son of Christians he would not be harmed.
[100] The second named applicant's continued attendance at school after the approaches by Bomboi and Boko Haram in June 2013 in the circumstances where it is their evidence other boys had been forcibly recruited by Boko Haram from his school and others schools in the area, and there evidence the applicants did not take it seriously, adds to the finding the applicants are not credible as to these claims. It adds to the finding the applicants are not credible witnesses.”
(name of place omitted)
Further, the Tribunal recorded what constituted deceptive conduct on the part of the first applicant during the course of the Tribunal hearing which also impacted adversely upon the credibility of the first applicant. At [101] – [111] of its reasons, the Tribunal found that the first applicant was a person who lacked credibility. The Tribunal’s reasons for additionally so finding were as follows:
“[101] Added to the applicant's lack of credibility is her evidence at the Tribunal hearing that her husband, [name of person omitted], has disappeared and she does not know where he is. It is her claim that she last had contact with him in September 2014 when he left her other children. She said he had run off. She claims she received a phone call from her children that her father had left them. She said she had tried contacting him but had been unable to do so.
[102] She gave evidence that together they were previously both Pastors at the Pleroma Church of Christ but she said that Church was no longer running. She gave evidence that the Church burnt down in 2014 after their arrival in Australia. She said she stopped being involved once she fled with her son in August 2013 and the Church was closed after it burnt down.
[103] However, at the hearing the Tribunal referred her to the website for the Pleroma Church of Christ which had its contact details on it including a phone number. In the presence of the first named applicant the Tribunal called the number. As the Tribunal was calling the number and indicated to the first named applicant it was doing so, it noticed the first named applicant was trying to text on her phone. The Tribunal asked her to stop and for the phone. The Tribunal read the message which was being typed to the second-named applicant. It stated "Rock, trying to call Peth." The Tribunal asked for the phone to be turned off. It notes Rock is the second named applicant who was outside the room at the time the first named applicant was giving this evidence.
[104] The Tribunal then called the contact number as indicated in the website for Pleroma Church of Christ. A person answered who identified himself as [name of person omitted]. He said he was the Pastor at Pleroma Church of Christ and was currently contacting services there.
[105] The Tribunal raised with the first named applicant via the process outlined in S.424AA that this questions her credibility as to the disappearance of her husband, that she has tried contacting him but has been unable to do so and that the Church has closed as it has burnt down. It also raised as of concern her action in trying to alert her son. When raised with her that it may lead it to find she is not credible; she responded that someone has placed the personal number there and if it was the church number the secretary would have answered the phone. She indicated that it was the mobile number which the Tribunal had called. She questioned if her husband was still around why her other children are with friends and that why had her children told her they do not know where her husband is anymore.
[106] When raised with second named applicant via the process outlined in s.424AA and that this questions the claim the first named applicant's husband has disappeared; he responded that that is what his mother, the first named applicant told him. The Tribunal accepts that this may be the case and that he may have been advised of this by the first named applicant.
[107] In the post-hearing written response the applicant submitted that she was surprised when the Tribunal advised that the church had a functional website and she noticed it contained former pictures, personal phone numbers and no church line to the secretary. She claims the Tribunal made a call at 11 am which is 1 am in Nigeria and the phone was picked up. She claims this shows it is a personal number, not the church number as calls cannot be picked up at that time of day. She claims she has been looking for ways to contact her husband as his number was not working. She claims she was reliably informed that the church was burnt when they could no longer get hold of any member of the family. She claims she had to get her friend to help them and what mother would leave her children without their father if her life was not threatened by one of the most dangerous groups being Boko Haram.
[108] The Tribunal has considered the evidence of the money transfer she claims was sent to [name of person omitted] for rent for the care of her children, as evidence her children are destitute as her husband has disappeared and the evidence of the church being burnt down. It has considered her evidence supporting her claim that her husband has disappeared and she has been unable to contact him.
[109] However, the Tribunal does not accept the evidence of the first named applicant as explaining why it was possible for the Tribunal to contact her husband and why she would warn the second named applicant that the Tribunal was calling him; when it was her previous evidence he had disappeared and she had been trying to contact him.
[110] It does not accept that the money transfer to [name of person omitted] overcomes the above concerns or is evidence her children are alone as the documentation only refers to a money transfer. As to the photographs of the burnt church and building these have been considered below.
[111] These matters add to the finding she is not a credible witness as to the claims.”
(names of people omitted)
It is in the entirety of the evidentiary context that the Tribunal’s treatment of the applicants’ claims, and the purported substantiation of such claims by corroborating witnesses, ought to be viewed. At [129] – [130] in particular of its reasons, the Tribunal was seen to have actively intellectually engaged in a consideration of the corroborating evidence. The Tribunal specifically referred to the evidence of [witness name withheld] and other corroborating witnesses but said “ … given the fundamental lack of credibility of the applicants’ evidence, the Tribunal does not give any weight to these statutory declarations and their contents”. In making that finding, the Tribunal made it clear that to the extent that such corroborating evidence was aligned with the evidence of the applicants, it would not be accepted. Such was not an unorthodox or unacceptable way for the Tribunal to undertake a deliberative process.
In Minister for Immigration and Multicultural Affairs; Ex parte APPLICANT S20/2002 (2003) 73 ALD 1 at [49], McHugh and Gummow JJ recognised that there were circumstances in which an administrative decision maker might give no weight to corroborative evidence because the credibility of the applicant had otherwise been so discredited. It was said by their Honours as follows:
“[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
In Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50, at [37], North and Lander JJ (with whom Katzmann J agreed) said:
“[37] Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 [2003] HCA 30; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.”
The facts of the present matter are not at one with those in BXK15 v Minister for Immigration and Border Protection [2019] FCAFC 76, where the majority there held that there had been no consideration by the Tribunal of the evidentiary value of the witness statements. That case is distinguishable from the facts of the present case which is aligned with the factual scenario in S20/2002. Each case will necessarily differ in terms of the factual matrix within which the Tribunal will be called upon to consider whether it should assess corroborative evidence in the light of other evidence before it, or whether no weight should be given to it. An administrative decision maker ought not to be required to always have regard to corroborative evidence, particularly in circumstances where the veracity of such evidence was incapable of acceptance because it aligned so closely with other claims of the applicants which were incredible. Such was the case here.
The Tribunal was further criticised for not seeking to speak directly to the first applicant’s husband about her claims, but it was justified in not doing so because of the deceptive conduct of the applicant exhibited during the course of the Tribunal hearing, vis a vis her husband’s alleged disappearance, as referred to above. As to the Tribunal’s questioning of the witness [witness name withheld], such person was asked what she wanted to say about the first applicant’s claims in addition to what was contained in her statement. [witness name withheld] did so. It was not the task or role of the Tribunal member to make out the case for the applicants. The onus in that regard was upon the applicants.
It has been held that Courts ought to be wary in any review of the exercise of discretionary power by administrative decision makers. The decision of the Tribunal not to place any weight upon the corroborative evidence could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There is no merit to Ground 1 of the Amended Application for Review.
Ground 2 of the Amended Application for Review was a claim that the Tribunal acted illogically or irrationally by making adverse credibility findings against the applicants. There is no merit to such claim.
First, it is a high bar that has to be met for there to be a finding of illogicality or irrationality, particularly in relation to findings as to credit. Extreme illogicality must be demonstrated. In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the principles relating to legal unreasonableness as follows:
“[30] The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …
(Citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”

Second, the Tribunal’s reasoning process was not flawed. The fact that the Tribunal found some evidence of the applicants to be consistent did not prevent it from finding that the substantive claims made by the applicants were incredible. Paragraph [128] of the Tribunal’s reasons must be read in conjunction with those other paragraphs relating to credibility in its reasons. Paragraphs [101] – [111] of the reasons of the Tribunal relating to the first applicant’s deceptive conduct during the course of the Tribunal hearing was but one basis for it being open for the Tribunal to find that the first applicant lacked credibility.
The Tribunal’s findings about the implausibility of the second applicant remaining at his school in the face of claims made by him that he was the target of recruitment by Boko Haram was open on the facts before the Tribunal. Another reasonable, rational and logical Tribunal member could have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
No extreme illogicality or irrationality has been demonstrated.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.
Dated: 10 February 2022

File number(s):	SYG 854 of 2017
Judgment of:	JUDGE EGAN
Date of judgment:	10 February 2022
Catchwords:	MIGRATION – Application for protection visas – country information relied upon to make adverse credibility findings against applicants – where corroborating evidence only acceptable if credibility of applicants was accepted – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss.36(2)(a), (aa) and (2A), 499 Article 1A(2) of the 1951 Convention relating to the Status of Refugees Ministerial Direction No.56
Cases cited:	BZD17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 94 Minister for Immigration and Multicultural Affairs; Ex parte APPLICANT S20/2002 (2003) 73 ALD 1 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 BXK15 v Minister for Immigration and Border Protection [2019] FCAFC 76 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division:	Division 2 General Federal Law
Date of last submission/s:	2 February 2022
Date of hearing:	2 February 2022
Number of paragraphs:	37
Solicitor for the Applicants:	Craddock Murray Neumann
Counsel for the Applicants:	Ms T. Baw
Solicitor for the First Respondent:	HWL Ebsworth Lawyers
Counsel for the First Respondent:	Mr G. Johnson
Second Respondent:	Submitting appearance save as to costs

SYG 854 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BFD17 First Applicant BFM17 Second Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	10 FEBRUARY 2022