BWH17 v Minister for Immigration - [2020] FCCA 838

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWH17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 838

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to consider corroborating evidence – whether the Tribunal’s findings were irrational or illogical – whether the Tribunal purported to act as the arbiter of genuine religious feeling.

Legislation:
Migration Act 1958, s.91R(3)

Cases cited:
BXN16 v Minister for Immigration [2019] FCCA 2820
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; (2016) 70 AAR 413; [2016] FCAFC 146
Maan v Minister for Immigration and Border Protection (2017) 253 FCR 564; (2017) 72 AAR 394; [2017] FCA 906; [2017] FCA 906
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; (2013) 136 ALD 41; (2013) 302 ALR 572; [2013] FCA 317
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495; [2012] FCA 451
SZSWO v Minister for Immigration and Border Protection [2015] FCA 285

Applicant:

BWH17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 878 of 2017

Judgment of:

Judge Riley

Hearing date:

11 November 2019

Date of last submission:

11 November 2019

Delivered at:

Melbourne

Delivered on:

15 April 2020

REPRESENTATION

Counsel for the applicant:

Chris Oldham

Solicitors for the applicant:

Ravi James Lawyers

Counsel for the first respondent:	Jonathan Barrington
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

DLA Piper

ORDERS

The application filed on 1 May 2017 and amended on 29 October 2019 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 878 of 2017

BWH17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

The applicant’s claims

In his outline of submissions filed on 4 November 2019, the first respondent outlined the applicant’s claims as follows:
8.In summary, the applicant claimed that:7
7 CB 479 [11]-[13].
8.1.her mother died when she was young;
8.2.in 2004, at about 13 years of age, she ran away from her home in Rawalpindi because her father was very violent, and she has not seen her father or her two sisters since;
8.3.she has lived in various hostels after leaving home and worked from about 2004 to 2007 as a domestic maid in Rawalpindi;
8.4.in 2007 she obtained a job as a marketing officer/receptionist with a company owned by Mr Ahmed;
8.5.in 2011, Mr Ahmed helped the applicant set up a trust to fund and work on animal rights in Pakistan, called the ‘[Animal Rights Trust]’ (the Trust);
8.6.the Trust ceased operations after she left Pakistan in 2014 due to threats received from the Taliban because of her conversion to Christianity;
8.7.she visited the United States for about 2 weeks in August 2012 and for almost six months in late 2012/early 2013, during which time she spent time attending animal rights events; and
8.8.she attempted to visit the United States again on 9 December 2013 but was turned back at the airport after her visa was cancelled.
9.The applicant claimed to fear harm because of her status as:
9.1.a Christian convert;
9.2.an animal rights activist;
9.3.a single woman without male protection or family support;
9.4.a failed asylum seeker; and
9.5.as a returnee from a Western country.

The Tribunal’s reasons

The Tribunal’s reasons are summarised in the first respondent’s outline of submissions filed on 4 November 2019 as follows:
11.The Tribunal expressed some concerns about the applicant’s claims to have run away from home to escape her violent father, because aspects of her claims are “somewhat implausible” and also because it found her oral evidence “vague and at times evasive”.9
9 CB 480 [18].
12.Despite these concerns, the Tribunal was willing to accept that her father may have been violent towards her and that she ran away from home when she was 13 and lived in various hostels thereafter in the Rawalpindi/Islamabad area.10
10 Ibid.
13.However, the Tribunal found the chance that the applicant would be seriously harmed by her father on return to Pakistan was remote, because:
13.1.the applicant ran away from home in 2004 and remained in Rawalpindi and Islamabad, except for a brief period away, until 2014 and her father made no attempts to locate her to the applicant’s knowledge;11
11 CB 480 [19].
13.2.the fact that the applicant did not move away from Rawalpindi or Islamabad indicated that she was not fearful of her father during this period, nor was she in hiding as claimed;12 and
12 CB 480-481 [19].
13.3.the applicant’s return to Rawalpindi/Islamabad on two occasions after visiting the United States was not indicative of someone who feared her father.13
13 CB 481 [20].
14.The Tribunal accepted that the applicant attended some animal rights events in Australia and the United States and has been involved with animal rights activities and meeting people involved in such activities in Pakistan, the United States and Australia in the past.14 The Tribunal also accepted that the applicant had been involved in animal rights events in Australia and had become a vegetarian.15
14 CB 482 [26].
15 CB 482 [27].
15.The Tribunal accepted that Mr Ahmed and the applicant established the Trust in 2011, and that the applicant was the president of the Trust.16
16 CB 482-482 [31].
16.However, the Tribunal did not accept that the applicant had a high profile as a result of her work with the Trust, because:
16.1. the applicant’s evidence about the strategy of the Trust was vague;17
17 CB 483 [32(a)].
16.2. at the hearing, the applicant demonstrated very limited knowledge about relevant laws protecting animal rights in Pakistan, despite her claims that a main part of her job with the Trust was to make people aware of existing animal rights and laws in Pakistan;18
18 CB 483 [32(b)].
16.3. the applicant’s oral evidence about her meetings with government ministers was vague and unconvincing;19 and
19 CB 483 [32(c)].
16.4. the applicant had no knowledge about other animal rights organisations in Pakistan.20
20 CB 483 [32(d)].
17.Given these concerns, the Tribunal found that, while the applicant may have been involved in some day-to-day tasks with the trust, it did not accept that the applicant had a profile to the level claimed.21
21 CB 483-484 [33].
18.The Tribunal concluded that, even if the applicant became involved in animal rights work in Pakistan upon return, she would not face a real chance of serious harm, because:
18.1.on the applicant’s own evidence, she never suffered harm as a result of her involvement in animal rights or her role in the Trust in the past;22
22 CB 484 [37].
18.2.the fact that she had failed to seek protection in the United States indicated to the Tribunal that she faced no serious chance of harm;23 and
23 CB 484 [38].
18.3.the Tribunal was not able to locate any country information that indicated that animal rights activists were at risk of serious harm in Pakistan.24
24 CB 484 [39].
19.With respect to the applicant’s claims about Christianity, the Tribunal found that the applicant’s oral evidence about her Christian activities in the United States was vague and evasive. The Tribunal was willing to accept that she helped out at the Holy Apostles soup kitchen as claimed and may have formed a friendship with a Priest there.25 However, the Tribunal found any chance of harm as a result from this to be remote.26
25 CB 486 [48].
26 CB 486 [49].
20.The Tribunal also found that the applicant’s failure to apply for protection while in the United States suggested that she did not fear harm for reason of her religion or any other reason.27
27 CB 486 [49].
21.The Tribunal had significant concerns about the credibility of the applicant’s evidence about her claimed conversion to Christianity, because:
21.1.the applicant’s oral evidence about her motivations to convert was vague, general and unconvincing;28
28 CB 487-488 [55(a)].
21.2.apart from isolated events, the applicant did not actually practice Christianity in Pakistan;29
29 CB 488 [55(c)].
21.3.the Tribunal found the applicant’s evidence about being targeted by the Tehrik-i-Taliban Pakistan (TTP) to be lacking in credibility;30
30 CB 488-489 [55(d)].
21.4.the applicant’s evidence about a threat from an Imam left at her office, and gunshots fired at her office, was vague and evasive;31 and
31 CB 489. [55(e)].
21.5.the applicant gave inconsistent evidence about whether she read the Bible in Pakistan.32
32 CB 489-490 [55(f)].
22.These circumstances caused the Tribunal to doubt the applicant’s core claims to have explored and converted to Christianity in Pakistan and to have been assaulted and threatened by TTP members. As such, the Tribunal rejected these claims.33
33 CB 490 [56].
23.In reaching this conclusion, the Tribunal had regard to the translated copies of the letters allegedly from the TTP dated 26 December 2013 and 14 May 2014. The Tribunal found that this documentary evidence was not sufficient to overcome the Tribunal’s serious credibility concerns.34
34 CB 490 [57].
24.With respect to the applicant’s Christianity in Australia, the Tribunal accepted that the applicant was baptised at Jesus is the Way church in 2014 and confirmed at St Francis’ Church in October 2015.35 However, the Tribunal had concerns about the applicant’s motivation to convert to Christianity and to participate in religious activities in Australia, because:
35 CB 490-491 [58].
24.1.the applicant’s evidence about her religious beliefs and practices was vague and limited;36 and
36 CB 491 [62].
24.2.the Tribunal found the applicant did not attend church in Pakistan and the United States.37
25.For these reasons, the Tribunal did not accept that the applicant genuinely held Christian beliefs and found that her conversion to Christianity and attendance at church in Australia was for the sole purpose of strengthening her claim to be a refugee.38 The Tribunal disregarded this conduct pursuant to s 91R of the Migration Act 1958 (Cth) (the Act).39
26.Accordingly, the Tribunal was not satisfied that the applicant would be persecuted in Pakistan as a result of her religion.40
27.With respect to the applicant’s claim to face serious harm as a member of a particular social group of ‘single, young women in Pakistan without male protection’,41 the Tribunal accepted that the applicant was young and single, that she ran away from her father and had no contact with him. However, the Tribunal found that the lack of family support in the past had not prevented the applicant from obtaining employment, accommodation, setting up the Trust and travelling to the United States.42 The Tribunal also found that Mr Ahmed provided the applicant with support in the past and was satisfied that he would continue to do so.43
28.The Tribunal did not accept the applicant’s claim that she would face serious harm from the authorities or anyone on return to Pakistan as a failed asylum seeker.44
29.The Tribunal also did not accept that the applicant would face a real chance of serious harm on return to Pakistan as a result of being a returnee from a western country.45
30.At the hearing, the Tribunal discussed with the applicant that the Departmental file contained a certificate issued under s 438 of the Act, which the Tribunal found to be invalid.46 The Tribunal considered the information contained in the documents the subject of the certificate. While the information contained within those documents contained information inconsistent with the applicant’s claims, the Tribunal accepted the applicant’s explanations with respect to these inconsistencies.47
31.The Tribunal relied on the same findings in relation to the Complementary Protection Criterion. However, with respect to the Tribunal’s acceptance of the applicant’s conversion to Christianity in Australia, the Tribunal did not accept that the applicant was a genuine Christian convert and was therefore not satisfied that she would practise Christianity on return to Pakistan, or that anyone would know or have issues with the fact that she converted to Christianity in Australia or was involved in church activities.48
37 CB 491 [63].
38 CB 491-492 [64].
39 CB 492 [68].
40 CB 493 [69].
41 CB 493 [73].
42 CB 493 [71].
43 CB 493 [72].
44 CB 494 [81].
45 CB 495 [85].
46 CB 495 [86].
47 CB 496 [89].
48 CB 497-498 [94].

Ground 1

The first ground of review in the application filed on 1 May 2017 and amended on 28 October 2019 is:
The Tribunal fell into jurisdictional error by failing to consider all of the corroborating evidence that supported the Applicant’s claim that she is a person who Australia has protection obligations under the refugee criterion or other complementary protection grounds set out in Migration Act 1958 (Cth) (the “Act”) and the Migration Regulations 1994 (Cth) (the “Regulations”). (errors in original)
In relation to ground 1, the applicant formally withdrew paragraph 9 of her written submissions filed on 29 October 2019.
The applicant argued that, while the weight to be attributed to material provided by an applicant is a matter for the Tribunal, the Tribunal’s treatment of the highly probative evidence of the documents from the Tehrik-i-Taliban (“the TTP”) and the oral evidence of Father McSweeny amounted to overlooking material that corroborated the applicant’s claim.
In support of this contention, the applicant relied on the decision in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; (2013) 136 ALD 41; (2013) 302 ALR 572; [2013] FCA 317. In that case, Robertson J said at [19] that:
On the question of law whether these facts established jurisdictional error, the Federal Magistrate set out at [30] passages from his earlier decision in SZMSD v Minister for Immigration & Anor [2009] FMCA 96, and said the jurisdictional error relied upon had been described as that of ‘ignoring relevant material’.
23.…In a well known passage in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said at [82]:
82It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal)
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (citations omitted)
24.The error of ‘ignoring relevant material’ is related to the jurisdictional error of ‘failing to take into account a relevant consideration’, which was explained by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 and following. However, as their Honours in Yusuf suggested at [74], the latter is more concerned with how a decision-maker has identified legal and factual issues which were required to be addressed when the relevant legislation is applied to the particular matter for decision, than with “the process of making the particular findings of fact upon which the decision-maker acts”.
25.In relation to a decision-maker’s consideration of the evidence, it is well established that no jurisdictional error occurs, if the decision-maker makes a ‘mere’ error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law arising in the matter (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [52]-[54] and [68]). Moreover, the Full Court has warned against drawing an inference that either an issue has been overlooked, or that evidence was overlooked, merely because a piece of evidence was not expressly discussed in the course of a decision-maker’s stated reasons, since “it is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons” (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]). However, an error in the assessment of a material piece of evidence is one thing, and failing to be aware of evidence which is material to the decision, and of which the decision-maker should be aware, is another.
26.The jurisdictional error of ‘ignoring’, or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker “is required to make his decision on the basis of material available to him at the time the decision is made” (see Mason J in Peko-Wallsend (supra) at 45, also Gibbs CJ at 30, Dawson J at 71, Brennan J at 67 and Deane J at 70).
27.It has been suggested that a statutory duty to be aware of the evidence submitted by an applicant is subject to a qualification that the evidence is material to the issues to be decided and is not ‘insignificant or insubstantial’ (cf. Gibbs CJ in Peko-Wallsend (supra) at 31). To the same practical effect, are suggestions that the materiality and significance of allegedly overlooked evidence should be considered, before drawing conclusions from the decision-maker’s reasons as to whether, in fact, the decision-maker was unaware of, or uninformed as to, that evidence (cf. Sackville J in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at 165 and following). These tests also come into play at a discretionary level, since relief will be refused if the Court is satisfied that the overlooking of evidence was of no possible significance to the decision which was made (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28]-[29], [55]-[59], [91], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [85]-[86]).
28.In the present case, I have considered the need to be cautious before concluding that the Tribunal overlooked a piece of evidence which was in the documents which the Secretary forwarded as “relevant to the review” pursuant to s.418(3) of the Migration Act. I must also read the Tribunal’s statement of reasons so as to give it the benefit of doubts (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291). However, the Tribunal was under a statutory duty both to be aware of those documents, and to include in its statement of reasons its findings on what it thought was the material evidence. An inference can be drawn, if appropriate, from the absence of reference to significant evidence forwarded by the Department, that it was overlooked (see Yusuf (supra) at [10], [35], [69], and [75]).

Later, Robertson J said in SZRKT that:
112.As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.
113.In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, referred to in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441, [2010] FCAFC 123 at [83], the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. The Court said at [63] that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. I do not regard that decision as stating or attempting to state exhaustively the circumstances in which error may or does go to jurisdiction.
Robertson J’s decision in SZRKT was endorsed by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599, where Bell, Gageler and Keane JJ said at [13] that:
[T]he Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant’s case.
The applicant also relied on the decision of this court in BXN16 v Minister for Immigration [2019] FCCA 2820 at [71] where Judge A Kelly said:
It follows that I consider the Tribunal’s failure to have regard to the relevant information when assessing the question of risk constitutes a constructive failure to perform its core function of review.
The Minister said this case was comparable to SZSWO v Minister for Immigration and Border Protection [2015] FCA 285, where Davies J said at [12]:
… The appellant’s argument has misstated the Tribunal’s reasoning at [28]. This was not a case of the Tribunal ignoring relevant evidence, but of the Tribunal attributing little or no weight to such evidence in the context where the Tribunal had not accepted that the appellant was truthful in his claims. The onus was on the appellant to satisfy the Tribunal that he did not become baptised and attend church services in Australia solely to strengthen his claim to be a refugee. The Tribunal found that the appellant was not a reliable, credible or truthful witness and rejected the appellant’s evidence about his claimed earlier interest in Christianity while in Iran, which the Tribunal found was implausible. The task of determining how much weight to attribute to the pastor’s evidence was a matter for the Tribunal and no legal error is demonstrated.
The reality in this case is that the Tribunal did not fail to take account of the TTP letters. The Tribunal expressly referred to them at paragraphs 51, 53, 55(e) and 57 of its reasons for decision. The Tribunal said in the summary of its findings at paragraph 57 that:
In reaching this conclusion the Tribunal has had regard to the translated copies of the letters allegedly from the TTP dated 26 December 2013 and 14 May 2014 accusing the applicant of apostasy and deserting Islam …
The Tribunal noted that the applicant had provided the TTP letters to the Department. Copies of the letters are included in the court book and their translations are at CB157 and CB163.
The Tribunal gave detailed reasons for not accepting the applicant’s claims about her conversion to Christianity and the threats from the TTP at paragraph 55 of the reasons for decision. Those reasons included that the applicant was unable to explain at the Tribunal hearing how the TTP found out that she was a Christian, given that she told the Tribunal that:
a)she was not active;
b)did not attend church; and
c)only three people knew she was a Christian.
The Tribunal noted that one of the TTP letters provided by the applicant actually said that the TTP learned that she was a Christian because they saw her at a Christmas celebration the previous day. The applicant’s failure to mention that circumstance to the Tribunal during its oral hearing led the Tribunal to doubt her claims.
In these circumstances, it cannot be said that the Tribunal overlooked the TTP letters. Indeed, the Tribunal knew more about their contents than the applicant did.
Similarly, the Tribunal set out in detail at paragraph 58 of its reasons for decision, the evidence from Father McSweeney about the applicant’s religious activities in Australia. The Tribunal basically accepted that evidence, including the evidence that the applicant had been baptised and confirmed at a church in Australia in 2014 and 2015 respectively, and that the applicant attended mass in Australia on an ongoing basis.
However, the Tribunal found aspects of the applicant’s evidence to be vague and general. For instance, although the applicant claimed to have studied the Pentecostal and Catholic faiths, she was unable to identify meaningful differences between them. The Tribunal concluded that the applicant attended church in Australia for the sole reason of bolstering her claims to be a refugee. In accordance with s.91R(3) of the Migration Act 1958 (“the Act”), the Tribunal disregarded the applicant’s religious activities in Australia.
In these circumstances, it cannot be said that the Tribunal overlooked Father McSweeny’s evidence. On the contrary, the Tribunal accepted the basic facts that he asserted. By virtue of s.91R(3) of the Act, and in view of its findings, the Tribunal was obliged to disregard that evidence.
Under ground 1, the applicant also challenged the Tribunal’s assessment of her credibility, saying that the Tribunal relied on minor matters to make adverse credibility findings.
The Tribunal accepted the applicant’s claims to have been an animal rights activist and to have worked for a trust for animal rights, but did not accept that the applicant was as high profile in the animal rights movement as she had claimed. The Tribunal gave reasons for its findings in that regard, at paragraph 32 of its reasons for decision, as follows:
a.The applicant was unable to clearly explain the purpose and strategy of the trust, apart from making broad statements at hearing that it was set up “to help homeless animals”, for example. (In a statutory declaration provided to the Tribunal the applicant stated that she worked for animal rights because they deserve rights and no one thinks about the rights of animals, especially homeless animals.) Her oral evidence was vague in terms of which animals, specifically, and which geographic area they focused on, for example. She also was unable to describe the specific needs or problems animals in Rawalpindi/Islamabad faced, which the Tribunal expects would be the first step in order to develop a strategy to address particular problems. As well, the applicant was unable to adequately explain why the vice presidents channelled large sums of money through the trust and was vague and evasive when asked about their motivations behind doing so, apart from stating that they were animal lovers too. However they have not appeared to continue the trust’s work in any form after the applicant left Pakistan.
b.At hearing the applicant demonstrated very limited knowledge about relevant laws protecting animal rights in Pakistan, despite her claims that a main part of her job with the trust was to make people aware of existing animal rights and laws in Pakistan. She claimed to have done so by meeting ministers, other politicians and speaking publicly at schools. After the Tribunal hearing the applicant submitted, among other things, a copy of ‘The prevention of Cruelty to Animals Act, 1890’, stating in her statutory declaration⁷ that accompanied the document that this was the copy of “the card, of information brocure [sic], I presented to the minister”. Given her claims that her job with the trust was to have made people, including federal ministers, aware of such laws, the Tribunal would expect her to at least remember this particular law at hearing.
c.Further, the applicant’s oral evidence about her meetings with government ministers for example, was vague and unconvincing, which causes the Tribunal to doubt her evidence in this respect. For instance despite providing a photograph of herself with a federal government minister purportedly in relation to her work with animal rights, she was unable to identify the name of the minister, his portfolio or the specific purpose of her meeting, either at hearing or in her post hearing statutory declaration.
d.As well, the applicant had no knowledge about other animal rights organisations in Pakistan, which casts doubts about the motivation behind her work with the trust, and its scope.
(footnotes omitted)
These findings went to the applicant’s credibility, although they were not expressed as such. The matters identified by the Tribunal were not minor, in my view. They went to the heart of the applicant’s claims to be an animal rights activist.
The Tribunal also found, at paragraph 38 of its reasons for decision, that:
Further, the fact the applicant visited the United States twice after she had established the trust and had allegedly become visible in the animal rights field in Pakistan yet failed to seek protection there, indicates to the Tribunal that she had no real chance of serious harm because of her profile and role with respect to animal rights in Pakistan at these times.
This finding went to the credibility of the applicant’s alleged subjective fear of harm in Pakistan for reasons of her animal activism. A failure by an applicant to make a protection claim when she or he could is not a minor matter. Delays in making protection claims are well-established as legitimate grounds for disbelieving an applicant’s claims: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105.
The Tribunal explained why it did not accept the applicant’s claims to have converted in Pakistan to Christianity in paragraph 55 of its reasons, as follows:
a. The applicant’s oral evidence about her motivations to convert (to Christianity) and the circumstances in Pakistan were vague, general and unconvincing. For instance she claims to have been motivated to convert after meeting two Christian women who treated her well, in contrast to other Muslim women at the hostel who treated her badly. This sentiment is reflected in her written claims provided to the Department that after meeting Sonia and Maria in 2007 - who looked after her and showed her love - she felt accepted, particularly given she felt the other girls in the hostel hated her and were hostile. However at hearing she was unable to state who exactly treated her badly or what they did for example to treat her badly or in what ways they were hostile. Instead she replied in sweeping statements that all people treated her badly, did “bad stuff” to her, all Muslims, which emotionally affected her but she did not provide any particular details or context. At hearing she noted that she was very young at the time, which the Tribunal accepts. However her vagueness in this respect causes the Tribunal to doubt her claims, particularly when combined with other concerns as set out below.
b.Apart from her claim that she prayed in the evenings with Maria and Sonia when living at a hostel with them, and visited an area in Islamabad where Christmas celebrations were held on Christmas day in 2010, 2011 and 2013, the applicant did not actually practice her claimed Christian religion at all in Pakistan. As mentioned, she said she wanted to attend church but was scared after being warned by a priest (via a boy) at a church in Islamabad in June 2007. The Tribunal considers such behaviour – approaching a priest at a church randomly, without first investigating the viability of converting - at odds with her claims that Christian converts from Islam are at risk of serious harm in Pakistan.
c.Further, the Tribunal found the applicant’s oral evidence about the Christmas celebrations she purportedly attended in Islamabad to be vague and evasive, which casts doubt about the reasons for her visits to the area and the extent of her involvement in the celebrations. For example when asked what the celebrations involved, she responded with a question, asking the Tribunal to tell her what they do in Australia. Her response was then vague and general, stating only that there were decorations, and that people gathered together, wore new clothes, and were happy.
d.The applicant’s evidence about being targeted by the TTP because of her claimed Christian conversion lacked credibility for the following reasons.
i.She was unable to explain how the TTP came to know she was a Christian convert, particularly given her oral evidence that she was not active, did not attend church, and the only people who knew she was Christian in Pakistan was Mr Ahmed (and Sonia and Maria). The Tribunal notes in this regard the applicant stated in her statutory declaration provided to the Tribunal that she practised her Christian religion in Pakistan in private. When this concern was discussed at hearing the applicant said she has no idea how the TTP knew (of her conversion) and that she was in shock when they approached and threatened her the first time on 26 December 2013. She failed to mention at hearing that they came to know that she was Christian because of her attendance at Christmas celebrations the day before, despite this fact being clearly stated in the translated copy of a letter from the TTP provided. The representative argued at hearing (and in her written submission provided to the Tribunal) that by that time the applicant had been publicly working and had a local profile as an animal rights activist. Therefore it is conceivable that people had become aware of her Christian faith. However for reasons above whilst the Tribunal accepts the applicant did some work as an animal rights
ii.The applicant’s oral evidence about other aspects of her claims in this respect was vague and at times evasive. For instance she told the Tribunal the 14 May 2014 letter from the TTP was found at her office (underneath the door) yet was unable to say whether she opened the letter, or someone else.
iii.The Tribunal finds it odd that when the applicant reported the 26 December 2013 incident to the police she advised them in writing (according to the translated copy of the letter she has provided) that she was a Christian convert and had abandoned Islam. Such behaviour is at odds with someone who claims that converts from Islam to Christianity are considered apostates, blasphemous, and face serious harm from extremists and from the authorities in Pakistan as a result. When this concern was discussed at hearing the applicant questioned how she was supposed to know the police’s reaction. She added that she needed help at the time and said it was the biggest mistake of her life. She failed to answer why she told the police that she was a Christian convert from Islam at that time. Furthermore the Tribunal found the applicant’s oral evidence about her engagement with the police about this matter implausible and at times nonsensical. For instance, she said she wrote a complaint application (at a nearby photocopy shop) which the policeman read then tore up and threw away. Yet she has provided (to the Department) a photocopy of that application with “no action” written on it in English: it is unclear to the Tribunal why the police officer would tear up and then throw away the original copy as claimed, whilst writing “no action” in English on a copy of that application before returning it to the applicant.
e.The applicant’s oral evidence to the Tribunal about the threatening letter from an imam that Mr Ahmed allegedly found at her office after she left Pakistan and the gunshots fired at her office door was vague and at times evasive. For example, when asked who the letter was addressed to and from whom, the applicant did not answer, saying only that he is in a mosque and is called a Muslim leader/imam. She said she has already forgotten, did not remember which mosque, and has forgotten the nature of threat because she was too scared to look at the letter, it was a long time back, and she had given the letter to her lawyer. When asked why the leader of the mosque sent a letter threatening to kill her in October 2014 the applicant replied that she has no idea and does not know how he found out that she was a Christian convert.
f.An inconsistency exists between the applicant’s oral evidence to the Tribunal and her oral evidence to the Department at interview (and her written claims in her statutory declaration provided to the Department and Tribunal) in relation to whether or not she read the Bible in Pakistan. Specifically at the Tribunal hearing when asked if she read the Bible around the time she met Maria and Sonia and was considering converting (in 2007) the applicant replied “no.” When asked if she learnt about Christianity any other way (apart from via Sonia and Maria), she said there was no other way. However at her interview with the delegate and in her statutory declarations provided, the applicant stated that she brought an English Bible and read it at this time. Later in the hearing the applicant changed her oral evidence (submitting that she forgot earlier) and said that she did buy a Bible in 2007 in Pakistan (an English version because there was no Urdu versions available), but only after the Tribunal had pointed out the inconsistency.
(footnotes omitted)
At paragraph 49 of its reasons for decision, the Tribunal also noted that the applicant had not applied for protection in the United States, notwithstanding that she had twice visited there after her claimed conversion.
The matters identified by the Tribunal as undermining the credibility of the applicant’s claims do not strike me as minor, especially when taken as a whole.
Ground 1 is not made out.

Ground 2

The second ground of review in the application filed on 1 May 2017 and amended on 28 October 2019 is:
The Tribunal fell into jurisdictional error in determining that some or all of the Applicant’s evidence upon which her claim was based lacked sufficient credibility and/or plausibility, when such a finding was illogical and/or irrational, and accordingly she was not a refugee or entitled to complementary protection.
For this ground, the applicant relied on Maan v Minister for Immigration and Border Protection (2017) 253 FCR 564; (2017) 72 AAR 394; [2017] FCA 906; [2017] FCA 906, where Charlesworth J said at [49] that:
An irrational or illogical finding of fact which critically affects the Tribunal’s assessment of the applicant’s credibility may amount to a finding of jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [40] – [44] (McKerracher, Griffiths and Rangiah JJ); Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55] – [56] (Wigney J); SZSHV at [31] (Flick J); SZRKT at [78] (Robertson J).

The applicant also relied on CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; (2016) 70 AAR 413; [2016] FCAFC 146, the Full Court of the Federal Court said that:
36.Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):
67In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
68But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be "satisfied" that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:
"A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution."
The prosecutor argued at the hearing that s 430(1)(c) "feeds into the ascertainment of the Minister's satisfaction" and that it is "an integral part of ascertaining the jurisdictional fact".
(emphasis added [in CQG15])
37.It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well‑established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.
38.There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a)    failure to afford procedural fairness;
(b)reaching a finding without any logical or probative basis;
(c)     unreasonableness; and/or
(d)    jurisdictional error as discussed by Flick J in SZVAP.
…
40.The contention advanced for the appellant is that, at most, the identified inconsistencies and incongruities in his evidence, taken together, provided a basis to doubt or not to accept the evidence. However, it was neither logical nor rational, the appellant argues, to find that his evidence was false when there was not one finding of falsity or fabrication in relation to any of the appellant’s evidence. The appellant stresses that, despite the entire orthodoxy of the remarks by McHugh J in Durairajasingham, the Tribunal is only empowered to make a determination under the Migration Act where it is based on findings or inferences of fact that are grounded upon probative material and logical grounds: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 (at [22]); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 per Gummow J (at [145]); and more recently, as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 (at [20]-[21]), where his Honour said:
20Whatever may be the difficulties, however, adverse findings of fact founded upon credibility - like other findings of fact - may expose jurisdictional error. A finding of fact founded simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than is any other finding of fact.
21In an appropriate case findings of credibility by an administrative decision‑maker may expose legal error.
41.Indeed, as also noted in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (at [31]), Flick J held that adverse findings as to credit by the Tribunal do not shield its decision-making process from scrutiny. His Honour there said:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
The Tribunal in that case had found the claimant had been “untruthful”, including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant’s account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. The Minister appealed unsuccessfully. Robertson J relevantly concluded:
[119]The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.
[120]The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.
[121]To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims; (2013) 212 FCR 99 at 132.
See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight. Prior to the decision in Minister for Immigration and Citizenship v SZRKT, supra, in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126, Logan J had also observed that “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”. Similarly, an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias: e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
(emphasis added [in CQG15])
42.The passage in SZRKT [2013] FCA 317; 212 FCR 99, cited by Flick J in SZSHV, was also followed by his Honour in SZVAP, where he also noted the following passage from WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 per Lee and RD Nicholson JJ (at [54]) (Carr J agreeing (at [57])):
The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s 476(1)(b) and (c) of the Act.
43.The appellant also points to SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, where Gordon J considered some of the United States authorities on the issue of the leap between minor or trivial inconsistencies or omissions and a general credit rejection. Her Honour said (at [25]-[26]):
25Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”: Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: Stoyanov at 736 (internal citations and quotation marks omitted [in CQG15]).
26Here, the inconsistencies (or rather, omissions) in the first appellant’s evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal’s reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated. Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal’s determination is based on illogical or irrational findings or inferences of fact. It is a decision not supported by reason. To put the matter another way, “because it is based upon such findings … the determination is an unreasoned decision”.
(emphasis added [in CQG15])
44.    Again, in WAIJ, Lee and Moore JJ (at [27]) said:
`Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
The applicant also relied on SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495; [2012] FCA 451, where Bromberg J said that:
34.Central to Kenny J’s reasoning at [37] of SZLSP, is her Honour’s conclusion that for a Tribunal to proceed on the premise that all believers will have certain specific knowledge of a religion, may well fail to engage with the question of whether a particular applicant is a follower of the religion. What that reasoning (and that of the Full Court in SZOCT which adopts it) calls for is an assessment of whether or not a logical or rational connection based upon probative material, exists between an applicant’s failure to hold the specific knowledge and the knowledge that all followers of the religion may be expected to have.
35.The existence of a logical or rational connection will likely depend upon the extent of the specific knowledge required to be demonstrated. An assessment made against the most basic tenets or features of a religion, is more likely to have the requisite logical connection because knowledge of the most basic tenets or features of a religion can be expected to be held by all of its followers. But because the level of knowledge held by followers of a religion will naturally range along a spectrum from basic to sophisticated, the more the assessment moves from the basic to the sophisticated, the more likely it is that the connection between the specific knowledge and all followers will no longer be logical.
36.Additionally, once the assessment moves from the basic to the more sophisticated, the potential for diversity in the understanding, application and practice of the tenets or spirituality involved will be greater. As that diversity increases, that which may be expected of all adherents will correspondingly narrow and the logical connection will diminish and then be lost.
37.In this case, the Tribunal was not satisfied that the first appellant “has a genuine interest” in Falun Gong (at [74] and [75]). In light of that finding, the Tribunal found that the first appellant was not a genuine Falun Gong practitioner and had contrived his interest in Falun Gong to enhance his visa application (at [74]). As the Tribunal considered that the first appellant was “not a genuine Falun Gong” practitioner (at [76] and [77]), the Tribunal did not accept as credible the first appellant’s claims that he was persecuted in China because he was a Falun Gong practitioner (at [76]), and was not satisfied that he would be involved in any future Falun Gong activities in either Australia or in China that would attract interest from Chinese authorities (at [80]).
38.As the second appellant’s claims were based upon the first appellant’s involvement with Falun Gong, and given the Tribunal’s finding that the first appellant “is not and never has been a genuine Falun Gong practitioner”, the Tribunal was not satisfied that the second appellant had been or would be persecuted by Chinese authorities (at [81]). Accordingly, the Tribunal was not satisfied that there is a real chance that the appellants face persecution by the Chinese authorities for a Convention reason (at [82]).
39.It can be seen that the finding made by the Tribunal that the first appellant was not a genuine follower of Falun Gong was destructive of all of the claims made by both appellants.
40.There was no alternative basis for the Tribunal’s decision. The rejection of the appellants’ application for Protection visas was exclusively based upon the failure of the first appellant to satisfy the Tribunal that he was a genuine Falun Gong practitioner. That failure was based upon the Tribunal disbelieving the first appellant’s claim that he had a genuine interest in Falun Gong. The Tribunal identified two reasons upon which it grounded its finding that the first appellant had no genuine interest in Falun Gong, and had contrived his interest to enhance his application Firstly, if the first appellant had a genuine interest in Falun Gong he would have had a better understanding of Falun Gong’s beliefs and principles (at [74]). Secondly, if the first appellant had a genuine interest in Falun Gong he would have participated in more public Falun Gong activities in Australia than he had (at [75]).
…
43.It is necessary to appreciate that the assessment of the first appellant’s credibility conducted by the Tribunal through this exercise was not conducted by reference to any claim made by the first appellant as to his state of knowledge of Falun Gong. The first appellant made no specific claim about his state of knowledge of the tenets or theory of Falun Gong. He did say at the outset of the hearing (at [47]) that he was a committed Falun Gong practitioner. At the end of the assessment (at [55]) he asserted that he was a genuine Falun Gong practitioner.
44.In my view, the Tribunal’s conclusion that the first appellant is not a genuine follower of Falun Gong, was not made on probative material on which the Tribunal could logically or rationally have based that conclusion. It follows that the Tribunal’s consequent findings as to the first appellant’s credit, including that the first appellant had fabricated his claim to be a follower of Falun Gong, cannot be sustained.
45.It is evident from the extracts set out above, that the Tribunal did not proceed by reference to a general exploration of the extent of the first appellant’s knowledge of Falun Gong. The assessment of the first appellant’s knowledge or understanding made by the Tribunal was conducted by reference to specific criteria as to the competence of a genuine Falun Gong practitioner. For that purpose the Tribunal firstly relied upon a transcript of a seminar provided to members of the Refugee Review Tribunal by Dr Benjamin Penny. The content of that transcript is not in evidence but the Tribunal’s summary of what it relevantly understood from it is at [59] of its decision.
…
50.The Tribunal determined that the first appellant’s interpretation of two of the five Falun Gong exercises, did not correspond with the description provided in the instructional manual. The first appellant gave evidence that there are different instructional manuals which provide different interpretations of the exercises and stated that he had an alternative instructional manual at home which varied from the instructional manual being used by the Tribunal.
51.Despite the fact that the Tribunal could have readily tested the veracity of the first appellant’s evidence as to the existence of other instructional manuals (and in particular the manual said to be held by the first appellant at his home), the Tribunal proceeded on the basis that there was only one interpretation of the exercises which was authoritative. Whilst the Tribunal was entitled to consider (as it did at [61]) that the instructional manual it relied upon was “a reliable manual”, the Tribunal had no basis for conducting its assessment of the first appellant’s knowledge on the premise that there was no other authoritative interpretation of the Falun Gong exercises. There was no probative material before the Tribunal from which it could have concluded that the only interpretation of the five Falun Gong exercises which all Falun Gong practitioners would know, was that contained in the instructional manual it was using.
52.Nor was there probative material upon which the Tribunal could ground its second reason for its conclusion that the first appellant was not a genuine Falun Gong practitioner. The Tribunal’s reasoning in this regard is at [75] and [76] of its decision.
53.The evidence before the Tribunal which it appears to have accepted was that the first appellant practised Falun Gong at home in the evenings after work. The Tribunal thought that the first appellant’s evidence about his public involvement with Falun Gong activities whilst in Australia was vague but accepted that he had been involved in some Falun Gong activities and had attended some of the big annual events. The Tribunal concluded that the first appellant “has had only limited involvement in organised or public Falun Gong activities”. On that basis, the Tribunal concluded that the first appellant did not have a genuine interest in Falun Gong and was not a genuine Falun Gong practitioner.
54.There is a logical connection between a genuine adherent to a religion and the extent to which a person practices or otherwise involves him or herself in the activities organised by that religion.
55.However, the Tribunal’s conclusion that a genuine Falun Gong practitioner could be expected to participate in public Falun Gong activities to a greater extent than the first appellant had, is not based on any identified or apparent material probative of what may be expected of a genuine Falun Gong practitioner. The Tribunal’s conclusion was not based on Dr Penny’s advice. The Tribunal seems to have simply come to its own conclusion, in the absence of probative material, as to what level of public participation in Falun Gong activities may be expected of a genuine Falun Gong practitioner.
56.There are therefore three considerations which led to the Tribunal’s conclusion that the first appellant is not a genuine follower of Falun Gong which were not grounded in probative material. In relation to each such consideration, the Tribunal impermissibly cast itself into the role of arbiter of the level or kind of knowledge, or the level of participation, that may be expected of a person claiming to be a follower of Falun Gong. Each of the considerations were significant to the critical conclusion or conclusions reached by the Tribunal that the first appellant is not and never was a genuine follower of Falun Gong. When the three considerations are taken together, their significance is manifest. The result is an absence of a logical connection between the evidence and the conclusions drawn by the Tribunal: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ) and see SZOOR v Minister for Immigration and Citizenhip [2012] FCAFC 58 at [84]-[85] (McKerracher J, with whom Reeves J agreed). For those reasons, whilst I recognise that an affirmative answer should not be lightly given, I have nevertheless concluded that the Tribunal’s finding that the first appellant is not a genuine follower of Falun Gong was not grounded upon probative material and logical grounds: SLZSP at [40] (Kenny J) and the cases there cited; and SZOCT at [8]-[10], [24] (Jacobson J) and [71], [80] (Nicholas J).
57.It follows that the Federal Magistrate was wrong to conclude that the Tribunal had not based its determination upon its own understanding of Falun Gong rather than on probative evidence. The Federal Magistrate should have found jurisdictional error in the decision of the Tribunal but failed to do so. The appellants have established appealable error based upon their second ground of appeal.

The applicant argued that the Tribunal’s findings about the TTP letters and Father McSweeney’s evidence were irrational and illogical because there were no findings that the applicant had provided bogus documents.
The Minister argued that it was unnecessary to find that documents were bogus or fabricated before deciding to place little weight on particular items of evidence. In support of that proposition, the Minister relied on SZSWO v Minister for Immigration and Border Protection [2015] FCA 285, where Davies J said that:
[11]Before the Tribunal, the appellant claimed to fear harm from persecution in Iran because of his conversion to Christianity. In support of his claim, a pastor from the Gordon Baptist Church in Sydney NSW provided two letters of support and spoke on the appellant’s behalf about the genuineness of the appellant’s faith and Christian commitment. The Tribunal accepted the genuineness of the pastor’s belief that the appellant’s conversion to Christianity was real, and that the pastor had baptised the appellant in good faith. However, the Tribunal gave “little weight” to that evidence, reasoning at [28] that while the pastor could attest to the appellant’s attendance and activities at the church “he cannot shed light on [the appellant’s] motivations for doing so”. The Tribunal found that the appellant had approached the church, become baptised and participated in church activities in a calculated and deliberate manner in order to establish a refugee profile. Having so found, the Tribunal, in accordance with s 91R(3) of the Migration Act 1958 (Cth), disregarded the appellant’s conduct in Australia in becoming baptised and attending church in finding that the appellant does not have a well-founded fear of persecution in Iran on the basis of his real or imputed religion.
[12]Before the FCC, the appellant argued that the Tribunal fell into legal error in holding that the pastor could not give evidence about the appellant’s “motivations”. The FCC rejected that contention, in my view correctly. At [134]-[137], the FCC stated:
In my view, it cannot be said, on a fair reading, that the Tribunal approached this question from the starting point that Reverend Merchant, or anyone in his position, could never assist in the understanding of what was in this applicant’s, or even generally any applicant’s, mind in engaging in the impugned conduct.
Rather, the Tribunal’s analysis was that the applicant’s evidence, including his evidence relating to his religious activities and belief before coming to Australia, lacked credibility … It gave reasons and made findings reasonably open to it to explain this conclusion … It found that the applicant had had no interest in Christianity in Iran. The applicant does not now attack this finding, nor say it was not reasonably open for the Tribunal to make. Further, the Tribunal found that he had “fabricated his interaction with … various clergy” in other countries … (emphasis added)
…
In essence, while the Tribunal accepted Reverend Merchant’s evidence that the applicant had attended the Gordon Church and participated in certain activities, it could not give more than “little weight” to all his evidence, in light of the applicant’s propensity to fabricate claims, and put forward claims and evidence lacking credibility. In this light, a fair reading of the Tribunal’s analysis is that, in all the circumstances, Reverend Merchant could not “shed light” on the [appellant’s] motivations in the totality of the conduct claimed. This was claimed conduct that the Tribunal otherwise rejected for other reasons. (e
I agree with the FCC. The appellant’s argument has misstated the Tribunal’s reasoning at [28]. This was not a case of the Tribunal ignoring relevant evidence, but of the Tribunal attributing little or no weight to such evidence in the context where the Tribunal had not accepted that the appellant was truthful in his claims. The onus was on the appellant to satisfy the Tribunal that he did not become baptised and attend church services in Australia solely to strengthen his claim to be a refugee. The Tribunal found that the appellant was not a reliable, credible or truthful witness and rejected the appellant’s evidence about his claimed earlier interest in Christianity while in Iran, which the Tribunal found was implausible. The task of determining how much weight to attribute to the pastor’s evidence was a matter for the Tribunal and no legal error is demonstrated.
SZSWO does not greatly help the Minister because, as the highlighted passages show, the Tribunal found in that case that the applicant had fabricated evidence.
Nevertheless, I do not consider that the applicant’s argument that the Tribunal did not find that the applicant had provided bogus documents is sound. On the contrary, it seems to me to be implicit in the Tribunal’s findings set out above that the Tribunal considered that the TTP letters were bogus or fabricated. The Tribunal did not expressly say so, perhaps for reasons of courtesy. However, it is implicit in the Tribunal’s reasons for decision that it did not accept that the TTP letters were genuine.
In the alternative, as stated by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, at [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.
The TTP letters fell into the category described in S20. As mentioned elsewhere in these reasons, the Tribunal basically accepted the evidence given by Father McSweeney, but had to disregard it in accordance with the provisions of s.91R(3) of the Act.
The applicant then argued that the Tribunal drew irrational inferences from the applicant’s first attempts to practice Christianity in the United States, her other conduct in the United States, her not over-zealous practice of and research into Christianity and her contact with the church in the United States. The applicant did not clearly articulate why the Tribunal’s inferences were said to be irrational. I do not accept that they were. Rather, it seems to me that the Tribunal noted various issues with the applicant’s claims that, especially taken together, led to the reasonable conclusion that her claims were unfounded.
As is so often the case, the allegation that the Tribunal was irrational is little more than an impermissible attempt at merits review.
In relation to ground 2, the applicant also argued that the Tribunal purported to be the arbiter of the level of knowledge that is required for genuine adherence to the Catholic faith. However, the Tribunal’s reasoning does not support that contention. The Tribunal considered that particular deficiencies in the applicant’s own evidence resulted in her claims being unpersuasive.
Ground 2 is not made out.

Conclusion

As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 15 April 2020