CDK16 v Minister for Immigration and Border Protection - [2020] FCA 1837

Federal Court of Australia
CDK16 v Minister for Immigration and Border Protection [2020] FCA 1837

Appeal from: CDK16 v Minister for Immigration & Anor [2018] FCCA 3626

File number(s): NSD 24 of 2019

Judgment of: GREENWOOD J

Date of judgment: 21 December 2020

Catchwords:
MIGRATION – consideration of whether the Administrative Appeals Tribunal engaged in jurisdictional error in undertaking or purporting to undertake its review jurisdiction under Part 7 of the Migration Act 1958 (Cth) (the “Act”) in deciding that 10 statements put to the Tribunal by the appellant were not reliable and that it was not necessary to obtain oral evidence from any one of the corroborative witnesses – consideration of whether there was an evident and intelligible basis for the Tribunal’s decision not to seek oral evidence from any one of the corroborating witnesses – consideration of the evidence of the corroborating witnesses and the topics addressed by that evidence in the context of the factual claims made by the appellant to hold a well‑founded fear of persecution and the claims to be fearful of a real risk of significant harm should the appellant return to Ethiopia

MIGRATION – consideration of whether particular factual findings were open to challenge on the ground of legal unreasonableness and the ground of irrationality in circumstances where the Tribunal made findings of fact without obtaining oral evidence from any of the corroborating witnesses

MIGRATION – consideration of contended mistranslations of the evidence of the appellant given at a hearing before the Tribunal – consideration of the translations put forward by the interpreter at the hearing and the translations given by an expert in unchallenged evidence before the primary judge

Legislation: Migration Act 1958 (Cth), ss 411, 414, 420, 422B, 423A, 424, 424B, 425, 425A, 426, 427, 428, 429A, 441A

Cases cited:
Abebe v The Commonwealth (1999) 197 CLR 510

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317

Bushell v Repatriation Commission (1992) 175 CLR 408

CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413

CZBH v Minister for Immigration and Border Protection [2014] FCA 1023

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2005) 77 ALJR 1165

SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451

SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 348

Date of last submission/s: 22 July 2019

Date of hearing: 28 May 2019

Counsel for the Appellant: Ms T Wong and Mr J Entwisle

Solicitor for the Appellant: Gilbert+Tobin

Counsel for the Respondents: Ms R Francois

Solicitor for the Respondents: MinterEllison

ORDERS

NSD24 of 2019

BETWEEN:
CDK16

Appellant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

GREENWOOD J

DATE OF ORDER:

21 DECEMBER 2020

THE COURT ORDERS THAT:
1.The appeal is upheld.
2.The orders of the Federal Circuit Court of Australia made on 13 December 2018 are set aside and in their place orders are made:
(a)for the grant of the constitutional writs setting aside the decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 27 June 2016;
(b)for the remittal of the matter to the Tribunal for determination according to law; and
(c)that the first respondent pay the costs of the appellant of and incidental to the application made to the Federal Circuit Court of Australia.

3.The scope of the remittal of the matter to the Tribunal according to Order 2 is to be determined according to the reasons of this Court given in support of the orders made in setting aside the orders of the Federal Circuit Court of Australia and remittal of the matter to the Tribunal to be determined according to law.
4.The first respondent pay the costs of the appellant of and incidental to the appeal to this Court.

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

REASONS FOR JUDGMENT
GREENWOOD J:
Introductory matters

These proceedings are concerned with an appeal from an order, and reasons for judgment explanatory of the order, of the Federal Circuit Court of Australia in dismissing the appellant’s application to that Court for the grant of the constitutional writs in relation to a decision of the Administrative Appeals Tribunal (the “Tribunal”) affirming a decision of the Minister’s delegate not to grant the appellant a protection visa under the provisions of the Migration Act 1958 (Cth) (the “Act”).
The appellant applied for a protection visa by an application dated 25 November 2013, lodged with the Department of Immigration and Citizenship on 26 November 2013. The appellant contended that he satisfied the criterion for a protection visa in s 36(2)(a) of the Act or, if not, that he satisfied the criterion in s 36(2)(aa) of the Act, and contended that the Minister ought to be satisfied of those matters for the purposes of s 65 of the Act.
Because the application was made prior to the commencement of the codified protection regime on 18 April 2015 established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the “2014 Amending Act”), the codified protection regime does not apply to the appellant’s application: Schedule 5, Part 4, Item 28, the 2014 Amending Act.
Accordingly, the amendments to the definition of “refugee” (now s 5H) and the introduction into the Act of a definition of a “well‑founded fear of persecution” (now s 5J) and related amendments do not apply to a consideration of the appellant’s application.
Section 36(2)(a), prior to the 2014 Amending Act, provided that a criterion for a protection visa is that the applicant is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention (Geneva, 28 July 1951) as amended by the Refugees Protocol (New York, 31 January 1967). The relevant definition of “refugee” is that contained in Article 1A(2) of the Refugees Convention. Although that definition is well‑known, it is convenient to note that the term applies to any person who:
… owing to well‑founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
As to complementary protection, s 36(2)(aa) provided then, as it does now, that a criterion for a protection visa is that the applicant is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) 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 non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
Although it will be necessary, having regard to the grounds of challenge to the correctness of the primary judge’s decision, to examine the content of the appellant’s claims before the Tribunal and the reasoning process of the Tribunal in reaching its findings leading to its determination of the statutory review, it is sufficient for present purposes to note that the appellant is an Ethiopian national of Oromo ethnicity. Before the delegate and the Tribunal he claimed to hold a well‑founded fear of persecution by Ethiopian authorities should he return to Ethiopia, by reason of his imputed involvement with the outlawed Oromo Liberation Front (“OLF”) and his active membership of a political party described as the Oromo Peoples’ Congress (“OPC”). The Minister’s delegate and the Tribunal accepted that persons with an actual or imputed involvement with either the OLF or the OPC are subject to serious harassment in Ethiopia.
The Tribunal affirmed the delegate’s decision on the footing that it could not be satisfied, on the material put before it, including oral evidence and submissions, that the appellant’s “claims and evidence” concerning the OLF were “plausible” and found that they were “lacking in credibility”: Tribunal, 127. As to the claims and evidence concerning the appellant’s membership and engagement with the OPC, the Tribunal did not accept that the applicant had “ever been a member of the OPC as claimed” or that he had “ever been involved in any activity with the OPC including through engagement with committees or involvement in meetings”: Tribunal, 149.
A significant aspect of the Tribunal’s difficulty with the evidence of the appellant, and evidence relied upon by the appellant, was an apparent anomaly or inconsistency, in the Tribunal’s view, between the circumstance that persons with an actual or imputed involvement with either the OLF or the OPC were subject to serious harassment in Ethiopia by Ethiopian authorities, on the one hand, and the appellant’s high level of education in Ethiopia, employment and advancement in employment in Ethiopia, on the other hand. At 94, the Tribunal notes these matters:
The applicant’s evidence also indicates that he has been able to obtain a high level of education in Ethiopia and to work in a number of jobs, including jobs in the public sector. The applicant confirmed at the hearing that he studied at Mekelle University from October 1999 to July 2003, and received a Bachelor of Science from Mekelle University. He studied at Haramaya University from October 2009 to November 2011. He got a Master of Science from Haramaya University. The applicant confirmed that, as indicated in his application, he had been an instructor at Alage Atvet College in Zuway from October 2003 to July 2006 and an Assistant Researcher at Oromia Agricultural Research Institute from August 2006 to April 2011 ([t]he Tribunal notes that the applicant later sought to correct this evidence to indicate that he was at the Agricultural Research Centre from 2006 to 2009, and that from 2009 to 2011 he was a full‑time student at Haramaya University). He confirmed that he had worked at the CASCAPE Project from May 2011 to September 2013. He indicated that he had come to Australia on a Student visa, indicating that he had applied through an organisation based in Kenya.
The Tribunal examined a range of country information which, among other things, suggested that the civil service is highly politicised and that obtaining employment is closely linked with membership of the ruling party and that selection for State‑sponsored education requires the individual to be a member of, or close to, the ruling party: Tribunal, 98 and 99. The role of country information in the decision‑making process of the Tribunal will be examined in these reasons. However, for present purposes, it is sufficient to note that the claimed difficulties of the appellant did not appear to the Tribunal to “sit comfortably”, having regard to country information, with the appellant’s ability to obtain a higher degree and maintain public sector employment over a lengthy period: Tribunal, 100 and 107.
As to the proceedings before the Federal Circuit Court, the appellant contends that the primary judge erred by failing to find that the Tribunal, in exercising its statutory review function under the Act, exceeded the limits or constraints upon the exercise of the Tribunal’s powers (thus exceeding its jurisdiction), because, put simply, the Tribunal’s decision is said to have been reached almost entirely on the basis of an adverse credit finding against the appellant in circumstances where: the Tribunal unreasonably refused to seek oral evidence from witnesses corroborating key aspects of the appellant’s account (Ground 1); the Tribunal’s factual findings were irrational and not logically supported by the available evidence (Ground 2); and the adverse credit finding made against the appellant was “exacerbated” by the mistranslation of key aspects of the appellant’s evidence at the hearing before the Tribunal (Ground 3).
The Grounds of Appeal
The Grounds of Appeal are lengthy and detailed. They are in these terms:
Grounds of appeal
1.The Court erred in failing to find there was jurisdictional error in the Administrative Appeals Tribunal’s (Tribunal) decision to refuse to exercise its power under s 426(3), 427(1)(a) and 429A of the Migration Act 1958 (Migration Act) because the Tribunal’s refusal to take evidence on oath or affirmation from one or more of ten witnesses who had given statements in support of the applicant’s claims was unreasonable and irrational, unfair and unjust in breach of s 422B(3) of the Migration Act and/or constituted a constructive failure by the Tribunal to exercise its jurisdiction.
Particulars
a.In support of his claims, the applicant provided to the Tribunal eleven witness statements corroborating critical aspects of his evidence in support of his claims, inter alia:
i.        the applicant’s brother’s detention in 2000;
ii.        the death of the applicant’s brother in 2003;
iii.       the applicant’s speech at his brother’s funeral; and
iv.       the applicant’s own detention on four occasions.
b.The Tribunal took evidence from only one of those witnesses, Mr Abdei Etana.
c.The applicant offered to provide the Tribunal with the contact details of each of the other ten witnesses, to enable the Tribunal to exercise its power to take evidence on oath [or] affirmation from these witnesses.
d.Nine witnesses confirmed, in their written statements, their willingness to give oral evidence to the Tribunal.
e.The applicant advised the Tribunal that it would be procedurally unfair for the Tribunal to reject the evidence of the witnesses without providing them with an opportunity to give oral evidence.
f.In circumstances where the proposed oral evidence of the ten witnesses was highly relevant to the Tribunal’s assessment of the applicant’s credibility, and the Tribunal determined that it would reject the evidence of the applicant in respect of issues addressed by the statements provided by the ten witnesses, it was unreasonable and irrational for the Tribunal to determine that it would not seek to obtain evidence from any one or more of these witnesses.
g.Further or in the alternative, the following factors relied upon by the Tribunal in making its decision were illogical and unreasonable and did not constitute an evident or intelligible justification for its refusal to exercise its power to obtain evidence:
i.in relation to two of the witnesses, alleged discrepancies regarding the age of the applicant’s brother and timing of schooling, which neither the applicant nor the witnesses had an opportunity to comment upon;
ii.in relation to two of the witnesses, the fact that the statements were unsigned;
iii.in relation to one of the witnesses, the fact that the witness was concerned about the monitoring of his calls by the Ethiopian authorities, even though the witness had still indicated that he was prepared to be interviewed but subject to safety precautions;
iv.in relation to all of the witnesses, alleged inconsistency between the statements and an unrelated circumstance, namely the education and employment achieved by the applicant;
v.in relation to all of the witnesses, the fact that their contact detail were not provided on their statement, even though the applicant’s legal representative indicated on more than one occasion that he possessed such information and was willing to provide it to the Tribunal, and eight of the witnesses stated they had given their contact details to the applicant’s legal representative who was authorised to provide it to the Tribunal; and
vi.in relation to all of the witnesses, the fact that the applicant had himself provided evidence at length at the hearing.
2.The Court erred in failing to find there was jurisdictional error in the Tribunal’s decision to reject the applicant’s claims in support of his protection visa application, as the Tribunal made findings that were so unreasonable and illogical that no reasonable or logical Tribunal could make on the same evidence.
Particulars
a.The Tribunal unreasonably and irrationally found, contrary to the overwhelming weight of the evidence, that the applicant’s brother had not been suspected of involvement in the Oromo Liberation Front (OLF), had not been detained by security forces and had not died in prison, despite:
i.the detailed evidence of the applicant regarding the circumstances of his brother’s detention and death;
ii.statements and evidence given by nine other witnesses, including a statement given by the applicant’s other brother and oral evidence given by another individual at the hearing, which corroborated the applicant’s evidence that his first brother had been detained as a result of his political activism and had died in prison; and
iii.the failure of the Tribunal to avail itself of the opportunity to test the evidence of eight of those witnesses.
b.The Tribunal unreasonably and irrationally found, contrary to the overwhelming weight of the evidence, that eight witness statements provided to the Tribunal in support of the applicant’s claims were unreliable [117], despite the fact that all eight witnesses stated that they had knowledge of:
i.        the death of the applicant’s brother; and
ii.the detention of the applicant’s brother on the grounds that he was a political activist;
in circumstances where:
iii.the Tribunal had an opportunity to contact the witnesses to test their evidence but did not avail itself of that opportunity; and
iv.no evidentiary, rational or probative basis for consideration that anything said by any of the witnesses on any fact or matter relevant to the applicant’s claims was identified by the Tribunal as a reason for considering their evidence to be untrue or unreliable; and
v.the only fact claimed by the Tribunal to contradict the evidence given by the eight witnesses was the applicant’s subsequent education and employment history.
c.        [Ground 2(c) has been abandoned.]
d.The Tribunal’s finding that the applicant was not a member of the Oromo People’s Congress (OPC) because he did not disclose his membership in his protection visa application dated 25 November 2013 [138] was unreasonable and irrational because it was made contrary to:
iv.the applicant’s evidence that there was not enough space on the protection visa application form to provide all of the information relevant to his claim;
v.the applicant’s contemporaneous answers to questions 44, 46, 47 and 48 of Form 866C that he will provide a full statement or detailed information through his legal aid;
vi.the additional information provided in the applicant’s statement dated 12 March 2014 specifically addressing his membership in and activities with the OPC;
vii.the additional information contained in the applicant’s supplementary statement dated 28 February 2016 to the effect that OPC membership was not illegal;
viii.corroborative independent evidence from witnesses and in documentary form detailing the applicant’s OPC membership; and
ix.the applicant’s evidence at the hearing (if, alternatively to the allegations in paragraph 4(b) below, such evidence were given) that his OPC membership was a serious and important matter to his protection claim because of the current political landscape in Ethiopia, which, as the applicant submitted to the Tribunal, had deteriorated after the applicant made his protection visa application.
e.[Ground 2(e) has been abandoned.]
f.The Tribunal unreasonably and irrationally assessed as unreliable the letter of support from the Oromo Federalist Congress (successor organisation to the OPC) dated 25 November 2014 and signed by the chairman Mr Merera Gudina which confirmed the applicant was a member of the OPC [148] because:
i.the letter did not provide details as to the nature of the committees the applicant coordinated or further detail as to the nature of his involvement;
ii.the letter did not provide information about specific events relevant to his claims, such as the applicant’s arrest in 2010; and
iii.the applicant had failed to give a satisfactory explanation as to why the letter had not been included in the submission dated 29 February 2016, despite the applicant’s legal representatives expressly stating that it was due to an oversight on their part that this had occurred [144];
none of which are rational or reasonable grounds for refusing to accept that the information contained in the letter corroborating the applicant’s membership with the OPC since 2008 was reliable.
g.        [Ground 2(g) has been abandoned.]
h.The Tribunal’s finding that the applicant would have not made a speech about the inhumane treatment of his brother at his brother’s funeral in the presence of police ([194], [114]) was unreasonable and illogical in the context of:
i.the applicant’s evidence before the Tribunal that he did not have any political affiliation at the time, did not consider that his speech was political in nature and did not, therefore, consider the risk associated with making the speech that he did;
ii.the Tribunal’s speculative finding that the applicant would have been aware of the presence of the police at the funeral from the outset (and not part way through the applicant’s speech, as contended by the applicant), despite the applicant’s evidence that there were around 250 people at the funeral and that he was grieving the death of his brother;
iii.the witnesses statement of Mr Berhanu Nono corroborating that there were upwards of 200 people at the applicant’s brother’s funeral and that the applicant made a speech at the funeral about how his brother had been jailed, had suffered and died; and
iv.the applicant’s submission, relying upon the extensive psychological evidence, that the trauma experienced by the applicant as a result of his brother’s death would be highly likely to have caused diminished cognitive control, impulsive behaviour and anger on the part of the applicant, who was only 21 at the time of the funeral.
3.The Court erred in failing to find there was jurisdictional error arising out of breach of the requirements of procedural fairness and/or s 425 of the Migration Act, as the applicant was denied a fair hearing and/or the opportunity to appear before the Tribunal to give evidence as a result of errors in the interpretation of the applicant’s evidence at hearing that individually or cumulatively led or might reasonably have led to material adverse findings against the applicant or might reasonably have had such an effect, through their materiality, frequency and/or context, that it cannot be concluded that the hearing before the Tribunal was fair.
Particulars
a.The interpreter at the Tribunal hearing was in attendance remotely by telephone and interpreted from Oromo to English and from English to Oromo during the entirety of the Tribunal hearing of approximately five and a half hours in length.
(i)The applicant’s OPC membership
b.During the Tribunal hearing, the interpreter failed to correctly interpret the applicant’s evidence that the risk to OPC members arose from the current political situation in Ethiopia.
c.The interpreter’s failure to correctly interpret the applicant’s evidence led or might reasonably have led the Tribunal to make material and adverse findings, including that the applicant did not give a “satisfactory explanation as to why, if [his OPC membership] claims were true, they were not in any way mentioned in response to the questions in the visa application” [138] (see also [145]) and that it did not accept that the applicant had been a member of the OPC [148].
(ii)The applicant’s return to work [in] in the Gurawa district
d.During the hearing, the Tribunal asked the applicant questions about his return to work in the Gurawa district between 4 September and 30 September 2013. The applicant’s evidence of the work that he did in the Gurawa district was incorrectly interpreted as “organising meetings with the local farmers”, when the applicant actually stated that his work did not connect him with the farmers and his job was related to organising data and related duties.
e.The interpreter’s failure to correctly interpret the applicant’s evidence led or might reasonably have led the Tribunal to make material and adverse findings including that:
i.the applicant returned to Gurawa to do the “same sort of work that [the applicant] claimed caused him the problems in the first place” [155];
ii.the applicant failed to give any satisfactory explanation as to why, if the events surrounding the applicant’s detention in August 2013 did occur and the applicant was fearful for his life, he went back to Gurawa to continue his work [162]; and
iii.the applicant’s claims and evidence were “very much lacking in credibility” and his claims concerning his detention in August 2013 should be rejected [162].
(iii)      The letter from the Oromo Federalist Congress
f.        [Ground 3(f) has been abandoned.]
g.        [Ground 3(g) has been abandoned.]
Unfair hearing and failure to provide an opportunity to give evidence
h.The errors in translation particularised in paragraphs 4(c), (e) and (g) above, individually and cumulatively, resulted in the applicant being denied a fair hearing and/or the opportunity to appear before the Tribunal to give evidence.
i.Further or in the alternative, the errors in translation referred to in paragraphs 4(b), (d) and (f) above might reasonably have had such an effect, through their materiality, frequency and/or context, that it cannot be concluded that the hearing before the Tribunal was fair and/or resulted in the applicant being denied the opportunity to appear before the Tribunal to give evidence.
Some matters of principle

It also almost goes without saying that the source of federal jurisdiction exercised by the Federal Circuit Court arises as a statutory conferral by s 476 of the Act of what is expressed to be “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, that is, a jurisdiction in migration decisions to grant the constitutional writs of mandamus or prohibition or both (and a jurisdiction to grant an injunction). Although s 75(v) does not expressly refer to the constitutional writ of certiorari, the conferral of jurisdiction on the High Court carries with it an “ancillary” or “incidental” authority to grant the writ of certiorari: Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82, Gaudron and Gummow JJ at [14]. The constitutional writs are the remedial mechanism by which, as an exercise of the judicial power of the Commonwealth, officers of the Commonwealth are subject to supervision so as to ensure that they stay within the limits of the jurisdiction conferred by the relevant Act as the source of the repository’s power or authority. Thus, the primary judge was called upon to decide whether, according to the grounds of challenge, the Tribunal had engaged in jurisdictional error.
When the Federal Court of Australia exercises its appellate jurisdiction to determine whether the primary judge engaged in error, it does so by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth).
An appeal by way of rehearing requires the appellate court, unless it dismisses the appeal or remits the matter for further hearing, to give the judgment which, in its opinion, ought to have been given in the first instance, having regard to the contended errors. An appeal by way of rehearing is a procedure for the “correction of error”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Gageler J, at [30] (“SZVFW”). The appellate court “must decide for itself”, within the limits of the Grounds of Appeal, whether the primary judge’s conclusion on the relevant matters is “right or wrong”: SZVFW, Gageler J at [56]. In order to decide “for itself” whether the decision of the primary judge was “right or wrong” in relation to each of the matters now the subject of the Grounds of Appeal, “the appellate court must reach its own conclusion as to whether the administrative decision was [legally] unreasonable” (SZVFW, Gageler J at [20]) on the basis contended for by the appellant and whether the Tribunal’s factual findings were irrational and not logically supported by the available evidence.
In doing so, it is, plainly enough, not the role of the Federal Court exercising its appellate jurisdiction (nor the role of the Federal Circuit Court in considering an application for the grant of the constitutional writs) to substitute its own view as to the merits of the decision reached by the administrative decision‑maker.
Focusing upon the notion of “legal” unreasonableness in the Tribunal’s decision in the exercise of the Tribunal’s statutory review function and whether factual findings (or other material findings/conclusions) were irrational or not supported by the available evidence recognises that the legality of the exercise of the jurisdiction conferred upon the repository of the power is to be tested by reference to principled and demonstrated failings in the exercise of the power (that is, conduct going beyond the limits of decisional authority), not by reference to whether the Court takes its own particular view about the merits of the decision reached by the decision‑maker.
As to the principles informing the question of whether an adverse credit finding reveals jurisdictional error, these matters should be noted.
It is often said, in reliance on the observations of McHugh J sitting as a single judge and exercising the High Court’s original jurisdiction in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] that a finding on credibility (in that case the Tribunal’s finding that the applicant’s claims were “utterly implausible” which was “essentially a finding as to whether the [applicant] should be believed in his claim”), is the function of the primary decision‑maker “par excellence”. However, the Full Court has observed that nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds (CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 (“CQG15”), McKerracher, Griffiths and Rangiah JJ at [37]), and that there is a risk that a mechanical use of the phrase “par excellence” as a formula, (or ‘blindly repeating McHugh J’s comments in Ex parte Durairajasingham’), fails sufficiently to appreciate this “important reality”: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, Griffiths, Perry and Bromwich JJ at [83](d); CQG15 at [37].
The Tribunal might engage in errors properly characterised as “jurisdictional” if it reaches findings of fact on the question of whether the applicant should be believed in his claim (“or, indeed, other findings of fact on any basis” (CQG15 at [38])), where there is no logical or probative basis for the finding; or a failure to afford procedural fairness; or unreasonableness; or any other error not falling within any particular fixed categories or formulas but which upon detailed “case specific” analysis of the decision‑maker’s reasons for decision reveals conduct giving rise to a conclusion that the error is truly jurisdictional as conduct going beyond the limits of decisional authority: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (“SZRKT”), Robertson J at [77]. An example of jurisdictional error in fact‑finding which may occur and which may fall into the last category just described is where a finding on credit on an objectively minor matter of fact is relied upon as the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim: SZRKT at [78]. Whether the constitutional writs are to issue in a relevant case might well engage the principles in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Kiefel CJ, Gageler and Keane JJ at [24]‑[31], Edelman J at [60]‑[74].
That, of course, does not mean, as already mentioned, that findings of the Tribunal about whether the applicant should be believed in his claim, once challenged on the ground of jurisdictional error, fall to be determined as an evaluative judgment of the Federal Circuit Court or the Federal Court on appeal. As to the caution to avoid de facto merits review of fact‑finding and especially assessments of credit (and related matters): see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), Crennan and Bell JJ at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451, Flick J at [14] and [15]; and [14]‑[23].
As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [8]:
The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision‑maker. The Court’s function is a supervisory one as to legality: [see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30], French CJ; [66], Hayne, Kiefel and Bell JJ; [105], Gageler J].
It is important to keep in mind that the terms, scope and content of the conferral of the power on the repository are closely examined because the exercise of the power will be conditioned by the express text of the provisions and may be conditioned by obligations which are implicit in the relevant statutory scheme and (or) by obligations which are implied through the operation of common law principles. Although the statutory scheme established by Part 7 of the Act is examined shortly, the following observations of Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (“SZMTA”) at [7], [9] and [11]‑[14] ought to be noted (citations omitted):
[7]Making a valid application for review of a delegate’s decision enlivens an overarching duty on the part of the Tribunal to review the decision under s 414. Performance of that duty is completed on the Tribunal making a valid decision of its own, ordinarily either to affirm the delegate’s decision or to set the delegate’s decision aside and substitute a new decision.
…
[9]In performing its overarching duty to review the decision of the delegate, the Tribunal “is not bound by technicalities, legal forms or rules of evidence” and is exhorted, as distinct from compelled, to “act according to substantial justice and the merits of the case”. Performance of the overarching duty is nevertheless conditioned on material observance of obligations imposed by Pt 7, some of which are expressed, some of which are implicit in the statutory scheme, and some of which are implied through the operation of common law principles of interpretation.
…
[11]Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implied through the operation of common law principles of interpretation, however, is an obligation to act reasonably in considering and exercising procedural powers expressly conferred on the Tribunal by other provisions within Div 4 of Pt 7. Those procedural powers of the Tribunal include a power conferred by s 427(1)(c) to “give information to the applicant”, which is expressed to be subject to ss 438 and 440, as well as powers conferred by s 427(1)(a) to “take evidence on oath or affirmation” and by s 427(1)(d) to “require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination”.
…
[13]Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review “in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself”. That obligation is fundamental to the nature of the review for which Pt 7 provides. Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support for the applicant’s case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case.
[14]The Tribunal’s decision on completion of the review is ordinarily required by s 430 to be recorded in a written statement which, amongst other things, “sets out the reasons for the decision”, “sets out the findings on any material questions of fact”, and “refers to the evidence or any other material on which the findings of fact were based”. The section “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”.
[emphasis added]
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), their Honours affirmed earlier statements of principle in the High Court to the effect that one of the presumptions of statutory construction is that Parliament confers power on a repository on the condition (described by Gaudron J in Abebe v The Commonwealth (1999) 197 CLR 510 at 554 [116] as an “essential condition”) that it be exercised reasonably: French CJ at [29]; Hayne, Kiefel and Bell JJ at [63] and Gageler J at [88].
As to the standard of legal unreasonableness, Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”) said this:
44In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision‑making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision‑making process: Li at [27]‑[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ: cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A‑CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision‑maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the Court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. [See the plurality in Li at [76]]. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]). …
…
48The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision‑maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.
[emphasis added]
The following important observations of Gageler J in SZVFW at [59] ought to be noted (citations omitted):
59References in Stretton to a conclusion that a decision is legally unreasonable being “evaluative” and to the task being “not definitional, but one of characterisation” were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by “the terms, scope and policy of the statute” but also by “fundamental values” anchored in the common law tradition. Reasonableness is itself a traditional conception of the common law – a translation of “the human into the legal”. Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, “[t]here are no talismanic words that can avoid the process of judgment”.
[emphasis added]
There are other aspects of the observations of their Honours in Singh and other matters of legal principle relevant to the Grounds of Appeal to which I will return later in these reasons.
As to findings leading to a conclusion as to whether the decision‑maker can reach a state of satisfaction (or not) for the purposes of s 36(2) and s 65(1) of the Act, impugned on grounds of illogicality and irrationality, the following principles identified by Crennan and Bell JJ in SZMDS at [130]‑[135] should be noted:
130In the context of the Tribunal’s decision here [which equally applies to the Tribunal’s decision in this case], “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 the argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact [the relevant state of satisfaction], 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.
131… [T]he test for illogicality and 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.
132Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. …
133… [T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …
…
135On 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.
[emphasis added]
Aspects of the statutory scheme
The relevant provisions are these.
A decision to refuse to grant a protection visa is a Part 7 reviewable decision under the Act: s 411.
If a valid application for review of such a decision is made under the Act, the Tribunal must review the decision: s 414(1). The Tribunal may, for the purposes of such a review, exercise all the powers and discretions conferred by the Act on the person who made the decision: s 415.
The Tribunal, in reviewing such a decision, is not bound by technicalities, legal forms or rules of evidence and must act according to “substantial justice” and “the merits of the case”: s 420. Division 4 of Part 7 of the Act is concerned with the topic of the “conduct of review” by the Tribunal. Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with: s 422B(1). In applying Division 4, the Tribunal must act in a way that is “fair and just”: s 422B(3).

An applicant for review by the Tribunal may give the Registrar a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and written arguments relating to the issues arising in relation to the decision under review: s 423(1)(a) and (b).
Section 423A was introduced into the Act by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). The section commenced on 18 April 2015. However, the section only applies to an application for a protection visa made on or after that date: Schedule 1, Part 3, Item 15(4) of that Act. Thus, it has no application to the appellant’s application for a protection visa. I mention the section in the context of the grounds of challenge to the primary judge’s decision because s 423A(2), had it applied, might have had some relevance for the present matter. Section 423A(2) provides that “[i]n making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made”. The provision, however, is anomalous because at the relevant time (and now) s 423A refers to an “RRT‑reviewable decision” rather than a Part 7 reviewable decision. All other references in the Act to an RRT‑reviewable decision have been removed by amended legislation.
In conducting the review, the Tribunal may “get” any information that it considers relevant. However, if the Tribunal gets such information, it must have regard to that information in making the decision on review: s 424(1). Without limiting that subsection, the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information: s 424(2). A written invitation under s 424(2) must be given by one of the methods specified in s 441A.
If a person is invited in writing under s 424 to give information to the Tribunal, the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers appropriate in the circumstances: s 424B. Subject to s 425(2), the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1). If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day, time and place at which the applicant is to appear: s 425A.
In the notice under s 425A, the Tribunal must notify the applicant that he or she is invited to appear before the Tribunal to give evidence and give notice of the effect of subsection (2) of s 426: s 426(1). Section 426(2) provides that the applicant may, within seven days after being notified under s 426(1), give the Tribunal written notice that the applicant “wants the Tribunal to obtain oral evidence from a person or persons named in the notice”.
If the Tribunal is so notified by an applicant under s 426(2), the Tribunal “must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice”: s 426(3).
The conferral of an entitlement upon an applicant to give the Tribunal written notice within the relevant time that the applicant wants the Tribunal to obtain oral evidence from a person nominated in the notice, coupled with an obligation on the Tribunal to have regard to the applicant’s wishes in that regard, might be thought to contain within the two provisions (s 426(2) and s 426(3)), as a matter of construction having regard to the evident purpose of the section in the context of a review of the delegate’s decision, a conferral of power upon the Tribunal to obtain evidence, orally or otherwise, from a person named in the applicant’s notice if the Tribunal, having had regard to the applicant’s wishes, decides that it ought to obtain evidence from the nominated person, either orally or otherwise.
However, there is debate in the authorities on the source of the Tribunal’s power to obtain evidence from such a person (as, on one view, the source of the power does not reside in s 426(2) and (3) itself). Section 424(1) and (2) confer power on the Tribunal to get information from “a person”. Apart from that section, s 427(1) confers power on the Tribunal to “take evidence on oath or affirmation” (s 427(1)(a)); power to require the Secretary to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation (s 427(1)(d)); and power to summon a person to appear before the Tribunal to give evidence: s 427(3).
Section 428 provides that the evidence power contained in s 427(1)(a) may be exercised on behalf of the Tribunal by a member conducting the review or another person, whether or not a member, authorised in writing by that member: s 428(1)(a) and (b). Moreover, the evidence power may be exercised inside or outside Australia and subject to any limitations or requirements specified by the Tribunal: s 428(2)(a) and (b). Section 428(3) confers powers on a person other than the member conducting the review who is exercising the evidence power on behalf of the Tribunal. Section 429A provides that, for the purposes of the review of a decision, the Tribunal may allow the appearance before the Tribunal of the applicant, or the giving of evidence by the applicant “or any other person” to be by telephone or closed‑circuit television or by any other means of communication: s 429A.
Where the Tribunal makes its decision on a review, the Tribunal must make a written statement that sets out the decision, the reasons for the decision and findings on any material questions of fact. The written statement must refer to the evidence or any other material on which the findings of fact are based.
The Tribunal’s reasons for deciding as it did
Having regard to the grounds of challenge to the jurisdictional legality of the Tribunal’s decision, the appellant particularly, but also the respondent, took the Court extensively to the factual context of the appellant’s claims to hold a well‑founded fear of persecution (and complementary protection claims) so as to identify why it is said that particular findings as to credibility and the Tribunal’s election to not obtain oral evidence from the nominated witnesses, is properly characterised as legally unreasonable or decisions which are irrational, unfair or unjust. Accordingly, in order to do justice to these contentions, it is necessary to examine the factual foundation put to the Tribunal for the claims and then identify the basis upon which the Tribunal found as it did.
The factual matters concerning the appellant’s evidence to which the Court was taken
In the application (document) for a Protection visa, the appellant was asked (at Q 44): “Have you experienced harm in that country [Ethiopia]?” In answer, the appellant filled up the available space in the box on the form by writing this:
Since 2004 to 2013, I have experienced significant harm by Ethiopian government authority (secret police) for the reason that they have suspected me to be supporter of Oromo people liberation front which is an organisation struggling to ensure self determination and freedom of Oromo people in Ethiopia.
I was subjected to torture, inhuman treatment, and interrogation at different times.
I will provide my full statement of harms I experienced in that country through my legal aid.
The threshold criticism the Minister makes of this answer is that if someone is going to say why he or she fears harm (in his or her country of nationality should they return) or “why someone is chasing you”, the person could have written in the box “and I was a member of a political party called X”. The Minister’s threshold point, going to credibility (looking to the Tribunal’s analysis) is that when the appellant had the chance to say why someone was wishing to harm him, he omitted to say something that later became an important reason supporting a claim to hold a well‑founded fear of persecution. The appellant says that his answer made plain that a “full statement of harms” experienced in Ethiopia would be provided once the appellant had access to legal aid and he said so a number of times in his answers on the form: see answers to Questions 44, 46, 47 and 48.
In the application document, the appellant was asked the following further questions and gave the following answers in each box on the form:
45       What do you fear may happen to you if you go back to that country?
My fear for my safety is based on the experience of detention, torture and inhuman treatment that I suffered under the hands of the Ethiopian police in the past.
There is also new development [happened] to my wife and children after my arrival in Australia. This development is directly related to my fears to my safety of my life.
A return to Ethiopia present me with [severe] threat on my life. As I know very well that I will face severe consequences of imprisonment, [interrogation], severe torture and eventually death.
46       Who do you think may harm/mistreat you if you go back?
It is Ethiopian authorities that would harm/mistreat me. It is [secret] police that were meant to uphold the law that were treated me inhumanely.
I will provide full detail information through my legal aid.
47       Why do you think this will happen to you if you go back?
- Because of the Ethiopian government authority ([secret] police) are suspicious of me to be supporter Oromo liberation front (OLF).
- Because of my departure to Australia could be seen by those [secret] polices as if I have made contact and information sharing with OLF overseas.
- I was recently advised by my wife that [secret] polices came to my house at 8:30pm and asked her about me and I was informed by my friend the [secret] police looking for my arrest.
I will provide detail statement through my legal aid.
48Do you think the authorities of that country can and will protect you if you go back?
No Why not?
Yes Because up to the date of my departure to Australia, I was subjected to torture, [interrogation] and detention by the Ethiopian government authority so that I do not expect any kind of protection from that government.
I will provide my full statement through my legal aid.
Each of the boxes on the form has underneath each box the words “If insufficient space, attach additional details”.
The appellant then expanded upon the answers he gave to Questions 44 to 48 in a statement set out in a letter dated 11 March 2014 addressed to the Department. In the letter, he explains that he belongs to the Oromo ethnic group which he describes as the largest ethnic group in Ethiopia representing about 40% of Ethiopia’s 87 million people. In his statement, he says the following things.
For the last four decades the Oromo people have been struggling by peaceful means, by many Oromo political organisations, for a fairer level of representation in “governance”. The most “coherent” organisation has been the OLF. The strategy of the government has been to suppress this struggle. Since the Tigrayan People’s Liberation Front (the “TPLF”) came to power in 1991, it has recognised that the vast majority of Oromo people rally behind the OLF and, as a result, the TPLF began imprisoning OLF representatives, members of the OLF and supporters of the OLF. The TPLF has particularly targeted Oromo families committed to the OLF, and the appellant’s family is among this group of families that have faced severe persecution.
As to the persecution of his family, the appellant says in his statement that his brother “TG” became the first family member to become a victim of the TPLF’s “brutal rule”. TG was tortured and intimidated due to “being affiliated with OLF members”. Due to the “inhuman punishment” of TG while in custody, TG died on 23 September 2003 in the “Shambu prison centre”. TG’s funeral was conducted on 24 September 2003. The appellant states that 250 people attended the funeral and three policemen were also present “watching the proceedings and the people at [the] memorial [service]”. The appellant spoke at the funeral on behalf of his brother’s wife and children and read background material about his brother. In his speech, the appellant highlighted things his brother had told him, and things the appellant had observed, when visiting his brother in custody. The appellant states that he said these things about his brother in the course of his speech:
You were denied medical attention and your life came to pass after years of suffering. The inhuman treatment and persecution you and other innocent Oromos faced will never be forgotten by your family and millions of Oromos. Dictators will pass and time will come when they will be judged for their human right violations.
The appellant states that about four hours after the funeral three police officers came to his brother’s house and took the appellant to the Amuru district police station and questioned him about the speech. The appellant states that the police officers said to him:
You were not allowed to talk about the circumstance[s] of your brother’s death. The content of your speech in public was against the government and has [a] political motive.
The appellant states that he was highly saddened by the loss of his brother and by being denied the freedom he needed to mourn his brother’s tragic death. He states that he said to the police:
One day you guys will be judged for treating human being[s] in an inhuman way and for abusing power to threaten [the] lives of innocent citizens.
The appellant states that when he said this, one of the officers slapped his face and kicked him repeatedly. He fell to the ground and the officer continued to hit him on the ground until the appellant lost consciousness. He states that on the next day he found himself in another room where police officers continued to “intimidate” him and threaten that they would “kill” him and his family unless he and his family “kept out of supporting the OLF and its political programs”. He states that he was detained for two weeks and during this time he was subjected to having his arms tied and he was forced to sit on a cold concrete floor for extended periods. He states that he was repeatedly interrogated by police to reveal information about the OLF. He states that he was scared that he would be killed if he were to be again discovered speaking against the government. He states that he was finally released from detention.
The appellant states that the second family victim of political persecution at the hands of TPLF authorities was his brother “GG”.
The appellant states that GG was persecuted for being suspected of having a connection with the OLF. He states that GG was working with his father on a farm they jointly owned. He states that GG was suspected as having a connection with the “chief coordinator of [the] OLF in [the] Amuru district” and police were seeking to arrest him. He states that GG then fled to Kenya in October 2003 “to save his life”. He states that the Ethiopian security police continued to harass the remaining members of the appellant’s family and following TG’s death, the authorities “continued to take my father to Amuru police station, and intimidated him several times”. He states that in December 2003, his father, mother and sister were arrested by “security police” in relation to the disappearance of GG. He states that they were detained for about two months.
The appellant states that he suffered persecution in the workplace. He puts it in the following way.
In 2004, while working at “Alage ATVET College” (the “College”), a body or organisation called the “Oromo people’s democratic organisation” (the “OPDO”) was making “massive campaigns” for the 2005 national election. The OPDO is described by the appellant in his statement as a “puppet organisation” of the TPLF and thus a “puppet organisation” of the ruling party. The OPDO had “cadres” at the College chaired by a person named “Mr AG”. Four other people were involved in the “cadres”. Their role in the College was to organise members to observe or “spy” on the College community for expressions of political opinion and to provide information to the security police. From 15 to 30 October 2004, the College hosted a meeting of the OPDO party with participants drawn from different parts of the Oromia region. It was mandatory for the Oromo community members in the College to participate in the meeting. At the end of the meeting, the appellant was requested by members of the cadre to be a member of the OPDO and take part in the 2005 national election campaign. The appellant was expected to rally Oromo students in the College to elect members of the OPDO party. He was expected to take part in mobilising the students, disseminating the OPDO’s political program, to become involved in its meetings and to make financial contributions on a monthly basis. He was told that if he abided by these requirements, he would “get position, access to further education, and other benefits from the ruling party”. He refused to be a member because he was not interested in being involved in “the wrong deeds of OPDO which involves arresting, torturing and killing of innocent Oromos”.
Following his refusal, Mr AG, who was then the chairperson of the “OPDO cadres” at the College, called the appellant into his office in November 2004 and interrogated the appellant about his reasons for refusing to become involved. The appellant says that Mr AG said this to him:
You have a hidden political agenda against the government and you will experience severe consequences in your life and employment. If you refuse the membership while [the] government is paying [your] salary, you would not get promotion, access to further study and also be fired from your job.
The appellant was “quite aware” that the OPDO had been watching “every aspect of my footsteps” and apart from asking him questions in person, the appellant was advised by his students that people were collecting information about what he said to students in the classroom concerning any political attitudes expressed in any class.
On 16 June 2005, students at the College and supporters of the opposition party demonstrated over alleged electoral fraud. The appellant participated in the demonstration along with students and College staff. On the same day, security police came to the appellant’s house at 8:00pm, handcuffed and blindfolded him and took him to the “Ziway detention centre”. He was kept there for three weeks and “repeatedly interrogated, beaten, and subjected to starvation”.
The appellant says that the government offers further study opportunities every year for College instructors who have rendered service for more than a year. This occurred while the appellant was working at the College. OPDO party membership was the primary criterion for an application to be considered and to receive any increase in salary. The appellant states that due to his refusal to become a party member of the OPDO, he was “specifically targeted and denied long term study [opportunities] and promotion”. Finally, he was obliged to leave the College “in fear of further persecution”.
The appellant says that he joined Haramaya University in October 2009 and began a two year course of degree study for a Master of Science degree. During this time, he was an “active member” of the Oromo People’s Congress (the “OPC”) which he describes as a “political party”. He states that the OPC is struggling to create a democratic system in the country so as to ensure the rights of Oromo people to self‑determination and to secure other cultural and social objectives.

The appellant states that on 25 February 2010, representatives of the OPC party leaders held meetings with its members from the Haramaya University. He says that 150 students and party members participated. He was a “member of the organising committee” for the meeting.
The appellant states that on 26 February 2010 at about 7:30pm he was taken from his dormitory by two persons wearing a federal police uniform and taken to a federal police temporary office located in the University. He says this:
They let me kneel down and continued to hit me with long black plastic [sticks]. I was taken to Harari police station and kept in custody for five days where I was subjected [to] interrogations, intimidation and beating and finally I was released on condition to appear wherever summoned by security officials.
The appellant states that since that incident, the OPDO have had him under surveillance at Haramaya University. He states that after his employment and placement in a project called the “CASCAPE project” at Haramaya University in May 2011, he used to travel to remote areas for weeks at a time to carry out project activities which involved “working with rural communities, conducting meetings and consultation workshops with farmers for scaling up of improved agricultural technologies”. He states that this gave him the opportunity to establish good links with the farming community in the project sites. He states that this frequent travel for “field work and close contact with the farming community” was seen negatively by “OPDO cadres at the university”.
The appellant states that in August 2013, he had been conducting “farm surveying” on 60 farm households in the Gurawa district which he describes as one of the “mandate areas” for the CASCAPE project in which he was working. He states that while he was conducting farm surveys in these locations, a dispute arose between the farming community and government militias due to the circumstance that farmers were forced to participate in extended government political meetings. The appellant was warned by government militias to leave the site. The appellant states that having seen the “unsafe condition” he returned home, terminating the survey work he was undertaking. He states that on 15 August 2013, government secret police came to his house and searched extensively. They “ripped everything apart and threatened to kill me in front of my wife and my two children unless I volunteered to tell them that I was involved in mobilizing farmers against government militias”. He states as follows:
They dragged me into the police pickup truck and took me with them while my children and my wife looked over helplessly. I was detained at Adele detention centre for ten days. During my detention, I was repeatedly beaten up. They said to me that I have got two days to tell them the information they [are] looking for or they would kill me. I begged one of the officers that there was nothing I did with the farming community with regards to political activity. After failing to find solid proof to charge me, I was released on condition that I report to the police on daily basis. I complied with their demand without failing. Every time I went they would humiliate me asking “would it not be better for you to tell us the information and forget about the need to come and report?”
In his statement, the appellant also says this:
In my workplace, I continued to suffer persecution in the hands of the government party – OPDO key informants who continued to come and watch everything I do with farming community. I could not even go to target project sites without being followed and harassed by the secret police officers. On September 4, 2013 at about 9:00am, I started to drive from the Hotel I rented in Gurawa district to [a] project site which was about 30 minutes drive from the site. On my way to my work place, two persons wearing civilian clothing followed me with [a] motorbike up to the place of my work. They remained at [a] far distance until I [finished the] consultation meeting with farmers. On the next date, one of the farmers told me that the persons who followed me were security forces in the district and these persons asked him the content of the meeting.
The appellant states that his wife completed a Diploma in Clinical Nursing in 2010 but was refused a job because she was not a member of the OPDO. In 2013, she opened a small business in a small shop close to where she lived selling foodstuffs. The appellant says that persons associated with the OPDO sealed up the shop and took away her licence to trade. The family is entirely supported by renting the house they own. The appellant states that his decision to seek protection in Australia is a “very disturbing decision” given his responsibilities to his family in Ethiopia, but a detained father and husband is of “no benefit … to his family”.
In September 2012, “AusAID” announced an opportunity to take up a scholarship in Australia. The appellant believed that he would qualify for short term training and he was supported in an application by the project coordinator (of the “CASCAPE Project”). In March 2013, he was notified that he had been selected for the program. He was permitted to leave Ethiopia with a valid exit visa so as to enter into the training program. He says that in October 2013 after his arrival in Australia, his wife told him that security forces came to his house and interrogated his wife about his whereabouts and the date of his return. She was scared by this event. He says that, should he return to Ethiopia, he will suffer “severe consequences of interrogations, intimidation, torture, imprisonment and possibly death in the hands of security [police] due to my departure to Australia without their consent and failing to report on [a] daily basis”. He says that his travel to Australia could be seen by OPDO security police as an attempt to share information with those overseas opposing the Ethiopian government.
All of the matters at [48] to [69] of these reasons are contained in the appellant’s statement of 11 March 2014.
Aspects of the approach to Part 7 of the Act
The Tribunal, when conducting a review under Part 7 of the Act, is not concerned with the “correction of error” on the part of the Minister’s delegate but is engaged in a de novo consideration of the merits of the decision referred to it. The task of the Tribunal is to consider the application for a protection visa “afresh” and to determine “for itself” whether or not it is satisfied that the criteria for the grant of the visa have been met. The precise character of the review to be undertaken by the Tribunal (or any authority or tribunal undertaking a review of an administrative decision) is ultimately always a function of the statutory context. For example, in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 (“ABT17”), the plurality, Kiefel CJ, Bell, Gageler and Keane JJ observe that the nature of the jurisdiction exercised by the Immigration Assessment Authority in conducting a review of a fast track reviewable decision is well settled (having regard to Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226) and observed that when conducting a review, the IAA is not concerned with the correction of error but is engaged in a “de novo consideration of the merits of the decision that has been referred to it” imposing an obligation on the IAA to consider the matter afresh and determine the application for the grant of the visa for itself. However, as to the IAA, Nettle J expressed this observation in ABT17 at [59]: “… [F]or the purposes of assessing whether it was legally unreasonable for the IAA to depart from credibility findings made by the Minister’s delegate pursuant to Subdivs AB and AC of Div 3 of Pt 2 of the Act, the task of the IAA is more closely analogous to an appeal by way of rehearing”. Gordon J and Edelman J, in separate reasons, in ABT17 emphasise that care needs to be taken with expressions like “hearing de novo” as the precise character of the review by the relevant body is ultimately always a function of the statutory context.
Taking account of all of those considerations and the statutory text of Part 7 described earlier, it is, in my view, correct to say, particularly having regard to the “overarching duty” on the part of the Tribunal to review the decision under s 414, that when the Tribunal conducts a review under Part 7 it is not concerned with the correction of error on the part of the Minister’s delegate but is engaged in a true de novo consideration of the merits of the decision so as to form its own view about whether it can be satisfied that the applicant meets the criteria for a protection visa having regard to the powers, duties and obligations set out in Part 7 of the Act, taking into account the observations in SZMTA set out at [23] of these reasons.
That being so, it is not necessary to analyse the delegate’s decision for the purpose, in effect, of seeking to find where the delegate may have “gone wrong”. However, it may be useful to simply note an aspect of the delegate’s decision that may be thought to have been influential in the reasoning of the Tribunal.
As to that, the delegate said this:
While the evidence before me indicates that the Ethiopian government does not have direct control of the CASCAPE project, it is conducted in close co‑operation with the government who contributes to its co‑funding through university funding. Given the Ethiopian [government’s] influence over all aspects of Ethiopian society, and aid programs in particular, I am not satisfied that the government would have no influence on employment in the project and endorsement of candidates for an overseas education opportunity such as an AusAID scholarship, and I find it implausible that somebody of the applicant’s claimed political profile could be employed for three years by CASCAPE and nominated for training that involves foreign travel without demurral from the Ethiopian government at some level. When considered cumulatively with the other concerns regarding the credibility of the applicant’s account I find that this contributes to undermining the credibility of his claims.
…
I found the applicant’s account of his public outburst at his brother’s funeral to be unconvincing and implausible in light of the available country information. I am not satisfied that even in a distressed state the applicant would make politically inflammatory remarks in a public forum in the knowledge that police were present, nor do I accept that the applicant would think his actions would provoke any trouble for him. When considered cumulatively with the other concerns regarding the credibility of the applicant’s account I find that this contributes to undermining the credibility of his claims.
The appellant was invited to attend a hearing before the Tribunal on 8 March 2016.
The submission and related material put to the Tribunal by Gilbert+Tobin
On 29 February 2016, the lawyers who had commenced acting on behalf of the appellant in 2015, Gilbert+Tobin, sent an email to the Tribunal attaching submissions in support of the appellant’s application before the Tribunal, a supplementary statement of the appellant, attachments to that statement and statements of “Mr TA” (whose name I will not mention in full in these publicly published reasons), Arie van Kekem and Abdei Etana. The email observes that arrangements had been made for Mr Etana to attend the hearing to be examined should the Tribunal so require. As to the statements by Mr TA and Mr van Kekem, the email observes that both reside overseas and are unable to attend the hearing although they have indicated that they would be happy to be questioned by the Tribunal by telephone if the Tribunal wishes to do so. However, the email observes that arrangements would need to be made in advance having regard to the international time differences. The email observes that both witnesses speak English although it is not their first language. The email also observes that as to Mr TA, “there is an additional sensitivity in that he lives in Ethiopia and has concerns about being reported to the Ethiopian authorities” and “[a]ny interview would need to be at a time when he is able to speak confidentially”. The email observes that if the Tribunal wishes to speak with either or both of those witnesses, could the Tribunal let the solicitors know and Gilbert+Tobin would assist with making the necessary arrangements.
In the submissions attached to the email, the author sets out six grounds on which the appellant sought protection from persecution or a real risk of significant harm should he return to Ethiopia. The first of those grounds was put this way:
(a)his political opinion as a member of the Oromo Peoples’ Congress (OPC) and an active spokesman and organiser:
•on behalf of the OPC;
•in support of improved conditions for the Oromo people generally; and
•in opposition to the policies of the Ethiopian regime;
…
The second ground was the appellant’s “imputed political opinions as a suspected member of the outlawed Oromo Liberation Front (OLF)”.
The emphasis, in the first ground, as reflected at [77] of these reasons is, no doubt, the source of the Minister’s observation that the appellant’s political opinions as a “member” of the OPC and as an “active spokesman and organiser” of the OPC had become a matter of primary emphasis in the application for review.
The supplementary statement of the appellant to which the Court was taken
In the appellant’s supplementary statement, he sought to address aspects of his earlier statement, particularly with a view to seeking to demonstrate that the views formed by the delegate (set out at [74] of these reasons) were not correct and that the Tribunal ought to have regard to the additional matters set out in the supplementary statement. In the supplementary statement, the appellant sets out the following matters.
The appellant states that the imprisonment and death of his brother “TG” was a very traumatic experience for him. The brother was jailed for three years in 2000 for his association with the OLF. The appellant was 20 years old at the time. He was not yet politically active but was aware of the OLF because his uncle had become an OLF fighter in 1998 and the uncle lived with the appellant’s family at the time. He states that Ethiopian security forces used to come to the house and conduct searches and this happened about three or four times while his uncle was with the family. The appellant used to visit his brother, “TG”, in jail at the Shambu prison centre in western Ethiopia about 70 kilometres away from the appellant’s home, approximately five or six times each year during the appellant’s University vacation. His brother would tell him how he had been mistreated and tortured. The appellant says that in 2002 his brother told him that he had been repeatedly kicked in the kidneys so badly that he was passing blood, and the authorities would not let him see a doctor to obtain an ultrasound. The appellant says that as he visited his brother over time, he could see his condition deteriorating. He was coughing constantly and had lost a lot of weight. He died on 23 September 2003 due to injuries, a lack of medical treatment and illnesses from the harsh conditions.
The appellant says this:
At paragraph 13 of my first statement I described the speech I made at my brother’s funeral on 24 September 2003. I was feeling desperately upset and angry about my brother’s death and the circumstances under which he died. I was emotional and I was traumatised. I talked from my heart about the things he had told me when I visited him in prison, and particularly about the mistreatment and torture he had suffered. It did not occur to me that there might be police spies at the funeral. At first I didn’t see any police. Later, while I was speaking, I caught a glimpse of some police but I assumed that they were there to mourn my brother as we had extended family who were members of the police force. In my highly distressed state at my brother’s funeral, I did not turn my mind to the possibility that they were police spies or to the possible consequences to me personally as I made my speech. I had no idea at the time of the extent to which the government infiltrates and spies on Oromo people.
[emphasis added]
As to these matters, the submissions from the solicitors says this:
The context that emerges from [the appellant’s] Supplementary Statement is that he was only 20 years old at the time of his brother’s funeral, that he was not yet politically active or especially knowledgeable in matters relating to persecution of Oromo people by the Ethiopian authorities, and that he was deeply affected by and highly emotional from the experience of having observed his brother’s mistreatment, lengthy decline and ultimate death in prison. In these circumstances, it is submitted that it is highly plausible – indeed probable – that [the appellant] would make an emotional speech at his brother’s funeral without thinking carefully about the potential political consequences.
In the supplementary statement, the appellant explains the circumstances leading to his joining the OPC. He says this. In 2006, he was employed by the Oromia Agricultural Research Institute (the “Institute”) a body controlled by the Oromia regional government. Membership of the OPDO was not a criterion of employment. At the Institute, the appellant became friends with someone who was a member of the OPC.
In 2008, the OPC held a conference. The appellant went along and read pamphlets distributed by the OPC and listened to the speakers. He became very interested in the organisation and its social and cultural objectives. In 2008, he became a member of the OPC, although he did not tell anyone. He felt that if he told people he was a member of the OPC he would lose his job and be denied other job opportunities. He pretended to be politically neutral and conveyed the impression that he was merely focused upon his career. However, by 2010 when studying at Haramaya University, he was no longer employed by the Institute and was prepared to “become more actively and publicly involved with the OPC” and prepared to “take more risk”.
In February 2010, the day after the OPC meeting that he had helped to organise, he was taken from his dormitory to the Harari police station, as described in the earlier statement. In the supplementary statement, he says this:
Spies from the police had known I was handing out pamphlets and talking to students. When the police interrogated me on my activities I admitted I was a member of the OPC, that I had been organising OPC meetings and handing out pamphlets to students. Membership of the OPC is not illegal, though membership of other Oromo organisations, like the OLF, is. The police tried to get me to admit I was a member of the OLF, but I was able to truthfully deny that. The police then asked me about the contents of the OPC meetings, and I told them what I knew. However, since it was not illegal to be a member of the OPC, the police could not charge me with anything. I was detained for five days, but since I did not give the police anything which they could charge me with, they eventually let me go.
The CASCAPE Project
In the earlier statement, the appellant describes an opportunity to become employed in the CASCAPE Project when the appellant was studying at Haramaya University. The project is run by Wageningen University in the Netherlands, and CASCAPE is an acronym for “Capacity‑building for Scaling up of evidence‑based best practices in Agriculture Production in Ethiopia”. The appellant was employed by CASCAPE in May 2011. The position occupied by the appellant was as an “agronomist/socioeconomist” according to the employment criteria for the job or role attached to the supplementary statement. The position description recites that the government of Ethiopia had recently adopted the “Growth and Transformation Plan” (“GTP”) for national development and the “joint donor‑government Agricultural Growth Program” (“AGP”), within the context of the GTP and was focused upon the “sustainable increase of agricultural production”. The main aim of the program was to better understand the success factors for upscaling best practices in the agricultural sector through a research development approach. The document recites that within the CASCAPE Project, the Ministry of Agriculture, Haramaya University and others were working together on strengthening the agricultural sector in Ethiopia. The job description recites the following matters:
One of the components within this project is to perform on‑ground research activities, i.e. farm surveys, monitoring, interviewing, experimentation with farmer groups etc at local (farm, kebele, woreda) levels. The coordinating organisations for this program [are five Universities including Haramaya University with technical support]. The task of the Innovators [the Universities] is to execute on‑farm activities, provide agricultural, environment and [organisational] advice to farmers and Development Agents (DAs) in order to accelerate their development.

The answer to the late invention concern is said to be that on four occasions the appellant said that there would be a “full statement” coming; that the fear he wanted to convey on the form was a fear of being subjected to “torture, inhuman treatment and interrogation” and “detention” (which the appellant says “is the conduct he was focused upon”, not necessarily membership of the OPC, as membership of the OPC “is not illegal, though membership of other Oromo organisations, like the OLF, is”); and that, he provided his statement relatively early, by 11 March of the following year, before the delegate made the initial decision, and not in response to an adverse decision of the delegate so as to raise something new for review purposes.
The appellant put on a supplementary statement after the delegate’s decision by which he supplements paras 22 and 23 of the earlier statement dealing with the OPC matter. In the supplementary statement he says this:
I join the Oromo Peoples’ Congress (OPC)
24.In 2006, I was employed by the Oromia Agricultural Research Institute, which was owned by the Oromia regional government. I had a good academic record and membership of the OPDO was not a criterion of employment. However I was concerned that they might try to find out information about me, so I told them that this was my first job so that they would not contact my former employer, Alage ATVET College, to ask questions about me and my background. When they asked me what I had been doing in the period since graduating from university, I replied that I had been working on my family farm.
25.At the Institute I became friends with someone who was a member of the OPC.
26.In 2008 he told me that the OPC was holding a conference and suggested that I attend. I went along and read the pamphlets that they distributed and listened to the speakers. I became very interested in the organisation. One of the objectives of the OPC is that Oromian natural resources should be utilised for the benefit of the Oromian people. Another was to make Oromian a working language of government in Ethiopia. And another is to establish a multi‑party system where every ethnic group in Ethiopia can have a say in government decision making. It seemed to me that this was an organisation that was doing real work to help the Oromo people, and which seemed very aligned with my own personal political outlook.
27.I became a member of the OPC. I did not tell anyone, though. I felt sure that if people knew I was a member of the OPC I would have lost my job and been denied other job opportunities. I continued to pretend to be politically neutral and make sure that as far as other people were concerned I appeared to be focused on my career.
Third detention - 2010
28.As described in paragraphs 22-24 of my first statement, I studied for a postgraduate degree in science at Haramaya University from 2009-2011, and during this time remained active in the OPC.
29.When I joined the OPC in 2008, I had kept my membership with the OPC as secret as I was afraid of losing my job with the [Institute] and further career opportunities. However, by 2010 when I was studying at Haramaya University, I was not employed, and I felt I was in an environment in which I was prepared to become more actively and publicly involved with the OPC. I was prepared at this stage to take more risk.
30.In February 2010, the day after an OPC meeting which I had helped to organise, I was taken from my dormitory by the police and detained for the third time – this time for 5 days, during which I was again interrogated and beaten, as described in paragraph 23 of my first statement.
31.When the police came to my dormitory, they first took me to their temporary office inside the university, told me to knee down, and beat me on my back with plastic sticks. They then took me to Harari police station.
32.Spies from the police had known I was handing out pamphlets and talking to students. When the police interrogated me on my activities, I admitted I was a member of the OPC, that I had been organising OPC meetings and handing out pamphlets to students. Membership of the OPC is not illegal, though membership of other Oromo organisations, like the OLF, is. The police tried to get me to admit I was a member of the OLF, but I was able to truthfully deny that. The police then asked me about the contents of the OPC meetings and I told them what I knew. However, since it was not illegal to be a member of the OPC, the police could not charge me with anything. I was detained for 5 days but since I did not give the police anything which they could charge me with, they eventually let me go.
The submission of 29 February 2016 asserts that the appellant seeks protection from persecution that he says he will suffer should he return to Ethiopia, due to his political opinion as a member of the OPC and imputed political opinion as a suspected member of the outlawed OLF.
The submission emphasises the significant worsening situation for Oromo in Ethiopia in 2014 and escalating violence resulting in the death of eight people. The submission refers to specific examples of torture concerning a young girl, a teacher and a student: pp 5 and 6, (i), (ii) and (iii) AB 157 and 158, by reference to an Amnesty International 2014 Report concerning oppression in the Oromia region of Ethiopia. The appellant emphasises the observations at p 6 of the submission that throughout 2015 peaceful protests occurred in the Oromia region protesting the extension of the authority of Addis Ababa into Oromia and in November 2015 those protests became violent (with footnote references to the sources) with the result that “since early 2016 almost daily accounts of killing and arbitrary arrests have been reported”: citing Human Rights Watch, Ethiopia: No Let Up in Crackdown on Protests, February 2016.
The appellant also emphasises the matter put to the Tribunal in the submission concerning the treatment of students “being hung up by their wrists while they were whipped, and electronic shocks given to students’ feet … arbitrary detention and torture”: citing the February 2016 Human Rights Watch Report.
The appellant emphasises like matters and steps taken by security forces in targeting public figures as described at AB159 and AB160.
The appellant also emphasises the evidence he gave to the Tribunal in relation to the complementary protection claim that he had failed to comply with his police reporting obligations which, taken together with country information about the increasing incidents of serious violence and torture in Ethiopia of Oromo people (and particularly those thought to be prominent or influential), demonstrates that the appellant faces a real chance of suffering serious harm in the form of torture, cruel or inhuman punishment or treatment, and degrading punishment.
As to all of these matters, the appellant’s point is that the material makes it readily apparent that the appellant thought and believed that it was permissible for him to provide a full statement of his claims to the Minister’s delegate in a separate document with the appellant having had the benefit of legal advice. The appellant emphasises his four references to that matter on the form. The appellant contends that this was an understandable and rational approach to filling out the form.
There can be no doubt that a decision‑maker is entitled to rely upon inconsistencies that emerge between, for example, things said by an applicant at one point in time either in a statement or a transcript of interview with the delegate, and later documents (including a further statement) and oral evidence given at a hearing, where the applicant departs in a material way from earlier versions of material facts or where, having had an opportunity to set out the scope of matters of concern to the applicant as a basis for a well‑founded fear of persecution or a fear of a real risk of significant harm, the applicant subsequently asserts new factual matters as the basis for the contended fear.
The character and circumstances of the inconsistency are very important considerations where the merits‑based reviewer seeks to rely upon the inconsistency, coupled with the failure of the applicant to adequately explain the inconsistency to the satisfaction of the reviewer, as a basis for finding the matters later raised by the applicant to be untrue.
Here, the appellant filled out the form and said at Q44 (and repeated the substance of the statement three additional times) that he would provide his “full statement of harms I experienced in that country through my legal aid”. Next, he did so by a statement put to the delegate that asserted the OPC matter. It is true that the appellant did not mention on the visa application form any fear of conduct on the part of government authorities due to his membership of the OPC. He could have done so but he did not.
Did his failure to do so in November 2013 provide a rational and legally reasonable basis for the Tribunal finding his claims concerning his membership of, and engagement with the OPC, to be untrue?
A matter of some relevance in answering that question is the evidence of Dr Gudina (see [99]‑[103] of these reasons). Dr Gudina’s positions are described at [100] of these reasons. His statement has been described earlier. Dr Gudina says that the appellant became “our member” in 2008 and continued his association “with us” after he joined Haramaya University. Dr Gudina’s statement was put to the Tribunal on the basis of evidence supporting the appellant’s claims of membership of the OPC. The Tribunal was concerned, however, that the Gudina statement was not provided with the submissions of 29 February 2016 by Gilbert+Tobin. Mr Glass explained that the firm had had the statement since 2015 and the failure to provide it earlier was an oversight not of the appellant but by the firm. Yet, the Tribunal concluded that no satisfactory explanation had been provided as to why “membership documents” (the Gudina statement and the controversial membership card) were not produced until after the hearing: 144; see [104] of these reasons.
But, there was an entirely objectively satisfactory explanation given by Mr Glass: see [103] of these reasons.
That matter unreasonably cast doubt in the mind of the decision‑maker about the reliability of the statement and as to the statement itself, the Tribunal was also concerned that it provided no detail of the coordinating committees on which the applicant says he served and no further detail of the nature of his involvement in the OPC. The Tribunal elected not to obtain any oral evidence from Dr Gudina.
The Tribunal’s finding that the appellant’s claims concerning the OPC matters were untrue was legally unreasonable as the finding lacked an evident and intelligible foundation having regard to these factors: the applicant foreshadowed on the form on four occasions that a full statement of harms would be provided once he had had the benefit of legal advice; the applicant provided a statement that raised the matter in his first statement of 11 March 2014 about four months after lodging the application form and before the delegate’s decision; the Gudina statement confirmed his membership of the party from 2008 and beyond, and the appellant’s engagement in committees which was an integer or fact going to the question of whether the appellant’s claims to hold the relevant state of fear by reason of his membership of the OPC was true or untrue; the reliability of the Gudina statement was called into question due to late production of the document notwithstanding that a satisfactory explanation had been provided by Gilbert+Tobin for not producing it earlier; and, in the face of a rejection of the entire truthfulness of the OPC claims on the basis that the claims were raised late by reason of the 11 March 2014 statement with no earlier mention of that matter on the form, the Tribunal elected not to obtain, or seek to obtain, any evidence from Dr Gudina who was willing to speak with the Tribunal (or any other witness who could speak to the applicant’s role in the OPC).
Having regard to all of those matters, in the very particular circumstances of this case, the Tribunal’s decision to treat the appellant’s OPC claims as untrue on the footing that the claim was not mentioned in the form filled out in November 2013, is impugned as lacking a rational foundation and is impugned as not “legally” reasonable as it lacked, in all the circumstances set out above, an evident and intelligible justification, especially having regard to the rejection of the objectively reasonable explanation by Mr Glass that the Gudina statement was held from 2015.
It is true that these facts do not, by themselves, go to the appellant’s state of mind in November 2013. However, they do provide a basis for determining whether it might be true that the appellant was a member of the OPC from 2008 and that if so, his assertion that he feared harm by reason of his membership of the OPC was a fear that he may have genuinely held due to OPC membership even though he did not say so on the form in November 2013.
The earlier observations also address Ground 2(f) which goes to the Tribunal’s finding that the Gudina statement/letter was not reliable.
As to that, the problem with the Gudina statement was said to be this at 148:
While it indicated that [the appellant] served the party “by coordinating various committees”, it provided no detail as to the nature of these committees and no further detail as to the nature of his involvement. It refers in general terms to the targeting of members and suggests that members and supporters, especially young members and supporters, are at risk. Nevertheless, it provides no information about the events that the applicant claims affected him. It does not refer, for instance, to his involvement in the 2010 election or his arrest, mistreatment and detention for five days in February 2010. Mr Gudina’s letter provides detail in relation to matters such as where the applicant worked at various times. It is not at all apparent why, if the applicant was an OPC member who had been specifically targeted for harm, this would not be reflected in a letter supporting his asylum case. This does not sit comfortably with his own claims. There are numerous other difficulties with the applicant’s evidence, including his evidence about his political involvement. In all the circumstances, the Tribunal does not accept that the applicant has in fact been a member of the OPC and does not accept the information in the letter as being reliable.
However, the letter was put to the Tribunal only on the issue of the applicant’s membership of the party organisation. For the reasons indicated above, the Tribunal rejected the statement as not being reliable and did not accept that the applicant had in fact been a member of the OPC. The Tribunal had, of course, taken the position that the late invention of the claim in the statement of 11 March 2014 suggested to it that the claims concerning the OPC were untrue. The Tribunal at 148 engages with that matter. For the reasons mentioned at [312], the finding is impugned.
Ground 3 – mistranslations
Background
Mr Marama Fufa Kufi is an accredited translator and interpreter of Oromo to English and English to Oromo with 11 years’ experience. His qualifications are set out at para 1 of his affidavit before the primary judge sworn 14 February 2017. Mr Kufi was provided by Gilbert+Tobin with two audio files containing relevant sections of the appellant’s evidence before the Tribunal. Mr Kufi was asked to listen to the audio files and note in a particular column of a schedule his translations of what was said in Oromo by the appellant, from Oromo to English. Mr Kufi was not cross‑examined by the Minister on his affidavit and, accordingly, his expert evidence on the correct translation of the particular statements in Oromo to English must be taken to be accurate and correct.
As to the subject matter of the contentious transactions, the background is this.
The appellant’s evidence in his statements was that after his employment in the CASCAPE Project he used to travel to remote areas for work which involved conducting meetings with farmers for the purpose of scaling up improved agricultural technologies in regions of Ethiopia: see [66] of these reasons. His evidence was that in August 2013 he had been conducting farm surveys on 60 farm households in the Gurawa district and while at this location a dispute arose between the farming community and government authorities because farmers were being forced to participate in extended political meetings. The appellant says that he was forced to leave the site. He describes his 15 August 2013 arrest and detention event in the terms set out at [66] of these reasons. He says that on 4 September 2013, after release, he returned to the site. He finished his consultations for that day. He says that the next day the farmers told him that the persons who had followed him to the site were security forces in the district. The area of confusion in the oral evidence was whether the appellant’s evidence was that he continued to return each day to conduct consultations with the farmers or whether he ceased engagement with the farmers and undertook other duties until 30 September 2013 when he ceased engagement with the CASCAPE Project.
Against that background, the translation issues are these.
The first of the mistranslations is said to be this.
The appellant was asked by the Tribunal:
Did you go back to work in the Gurawa district after you were detained in August 2013?
The appellant’s answer as translated by Mr Kufi is:
I was at work. Even on 4 September, 2013 at Gurawa, they did it to me again.
However, that answer was not actually translated by the interpreter at the hearing because the interpreter said: “What did you say?” The appellant then said words which were translated by the interpreter at the hearing as:
Yeah these people were following me on the … this September 4 to September … late September, that was in Gurawa.
However, the appellant did not say “September 4 … to late September” but said, according to Mr Kufi, “even on September 4, 2013 those people followed me up at Gurawa”.
The appellant then said further things interpreted at the hearing as:
So it finally became impossible for me to continue my work so I stopped my work on 30^th of September 2013.
The evidence given by the appellant as translated by Mr Kufi is:
I did not go regularly back to the area for work after that. I did not frequently go back for work. I stopped on September (voice unclear here) 2013 [a date which according to other evidence is 30 September 2013].
The Tribunal Member put this to the appellant:
But after you were released you went back to Gurawa and did the same sort of work that you claimed caused these problems in the first place in spite of being fearful for your life and I might have some difficulty accepting that that’s what happened, that you’d have these problems.
The appellant in response, said, according to Mr Kufi’s translation:
Yes then I went there though I was under huge fear. At that time I could not say I will not go there to work. Because, the project paid me good money. And also if I do not go and work I lose my job. Because I must go to work on that day I went there. When I went there I realised they were following me. After that I did not work there long. I left the area.
The Tribunal Member asked:
How were you able to do that job from the 4^th of September to the 30^th of September if that work had caused such great problems previously?
The appellant responded to that question and the interpreter at the hearing translated his answer as:
My job [I was worried about]. I was organising meetings with the local farmers collecting information that I needed for research, come back to the office, put information together and make reports [unclear] for the project.

Mr Kufi’s evidence is that the correct translation of the answer is:
I mean the work does not connect me with the farmers. My job was related to organising data and related duties. I did not have to communicate with people for this particular job (Note: words unclear in between here). I was gathering/collating evidence and writing reports in the office and I was working in related areas.
The appellant’s point is this.
The Tribunal is testing whether it can accept the appellant’s evidence of the fear he contends to hold as a well‑founded fear of persecution (or fear of a real risk of significant harm) should he return to Ethiopia, in part grounded upon his experience of the arrest and detention in August 2013 arising out of his engagement with farmers on site in the Gurawa district. The Tribunal was testing that matter by asking him how he was able to do that work (that is, consultations with farmers in the Gurawa district in the period after release, from 4 September to 30 September when his role in the project ceased), when that work had “caused such great problems previously”. Mr Kufi notes the answer was that the appellant’s job did not require him to “connect” with farmers or “communicate with people” as his work was related to “organising data” and “related duties”. The answer translated at the hearing was that he was “organising meetings with local farmers” and “collecting information that I needed for research”.
These answers as translated at the hearing seemed odd to the Tribunal for a person who had just had the experience of the August arrest and detention as described at [66] of these reasons. The Minister says that the matter is more fundamental than that because the answer as translated by Mr Kufi shows that the appellant was trying to address the concerns of the Tribunal in a way that suggested that his role in the project, so far as it related to Gurawa, did not require him to engage with local farmers (with the result that there was no concern in returning to work), but that description of his role was inconsistent with the evidence he gave as to the consultations with farmers required by the role.
There is some force in the Minister’s submission. However, having regard to the transcript evidence, I am satisfied that the answer as translated by Mr Kufi ought to be understood as a response to the question put to the appellant about his conduct immediately after release and thus from the period 4 September to 30 September rather than a more broadly‑based statement to the Tribunal about limitations in his role. His evidence plainly is, generally, that he was required to engage in consultations with farmers. His evidence about not connecting with farmers and not communicating with them seems to be, according to the translation evidence, an explanation of what he was doing after the experience of 4 September 2013 until he left the role on 30 September 2013.
The appellant’s contention is that from 4 September 2013 onwards, once he realised that he would continue to be watched, a fair reading of the actual evidence as identified by Mr Kufi is that he was saying that he was no longer connecting with farmers and was not communicating with them. On 30 September 2013, he gave up the job.
The findings of the Tribunal which engage with this topic are these. At 152, the Tribunal observes that it has considered the appellant’s claims and evidence about the difficulties while working with CASCAPE in 2013. The Tribunal explains some of the background matters in relation to the project. It explains some aspects of the events of 15 August 2013 as claimed. At 155, the Tribunal says this:
The applicant indicated, when asked, that he was afraid for his life after he was detained in August 2013. He said he was concerned and in great fear. He had to report to the local police every day. He described having to report to the police and tell them where he was going. He said the government would contact the other place and monitor his movements. He was in great fear. The applicant gave evidence to the effect that they assigned people to follow him and monitor him as he went to work and from work. On 4 September while he was working or going to his work two people on a motorbike were following him wherever he went. He said it would have been difficult for government agents to come to the meeting itself. They would hang around the meeting and later talk to the farmers and ask what the meeting was about and what they talked about. The farmers later approached him and told him people asked about him. He said this gave him the magnitude of the [government’s] suspicion against him and how his life was at risk at that time.
Against that background, the Tribunal also said this at 155:
When asked about whether he had gone back to work in the Gurawa district after being detained in August 2013, the applicant stated that, when those people were following him from 4 September until late September, it was in Gurawa. Finally it was impossible for him to continue his work so he stopped his work on 30 September. The Tribunal put to the applicant that it might have difficulty accepting what he had said about this. It put to him that he claimed that he had been detained and accused of things to do with the OLF and mobilising farmers and that he was detained for a period and beaten. He claimed that this made him fearful for his life. But after he was released he went back to Gurawa and did the same sort of work that he claimed caused him the problems in the first place in spite of being fearful for his life. The applicant stated that when he was sent to Gurawa his pay was quite good. He did not want to give up the job in spite of the difficulties. When he went there and found out the magnitude of the monitoring he did not continue for long. The Tribunal asked how was he able to do the work from 4 to 30 September if that work had caused such great problems previously. The applicant stated that his job was meetings with local farmers collecting information for research, coming back to the office and making reports for the project.
[emphasis added]
The appellant says that the reference at 155 to his going back to Gurawa and doing “the same sort of work” that caused him the problems in the first place and the statements in the last sentence to the effect that the applicant was doing that work from 4 to 30 September 2013 translated at the hearing as meeting with local farmers, collecting information for research and going back to the office does not accurately state the evidence which was that, in effect, from 4 September he ceased connecting or communicating with the farmers and undertook other duties until he left on 30 September 2013.
In other words, the Tribunal has pursued a line of inquiry on the basis of the mistranslation.
At 162, the Tribunal said this on this topic:
[T]he Tribunal considers that there is no satisfactory explanation as to why, if the claimed events had occurred, the applicant would go back into the field and do similar work and how he would in fact be able to do so until 30 September. … [T]he Tribunal does not accept that there is any satisfactory explanation as to why, if these events had occurred and he was fearful for his life, he went back to Gurawa and continued with his work there. Nor is there any satisfactory explanation as to how, if the applicant’s work had aroused such interest, caused him to be chased out and caused him to be accused of links to the OLF and involvement in mobilising farmers, the applicant then returned to work in Gurawa and worked until 30 September. The Tribunal finds the applicant’s claims and evidence about this matter to be very much lacking in credibility. It does not accept that he suffered any difficulties in connection with his work with CASCAPE. It does not accept that he in any way came to suspicion or was chased out, that his house was searched or his property taken, that he was arrested, detained or mistreated, or that he was in any way monitored. The Tribunal finds the applicant’s claims in relation to these matters to be lacking in credibility.
[emphasis added]
It can be seen that the Tribunal has regarded the mistranslated evidence that he was organising meetings with local farmers in the period 4 September 2013 to 30 September 2013 as a material consideration in reaching the credibility findings about the totality of the applicant’s evidence as to the 15 August 2013 event as claimed. Perhaps a correct translation could have made a difference. It may not have been decisive but it is not clear that a conclusion could be reached that the mistranslation could not have influenced the finding.
As to the other contended translation errors, I am not satisfied that they could have made a difference.
For all of the reasons indicated, the Tribunal fell into jurisdictional error.
To the extent that the primary judge thought otherwise, I would respectfully disagree and find error on the part of the primary judge.
The orders of the primary judge are to be set aside and the matter remitted to the Tribunal for determination having regard to these reasons.

I certify that the preceding three hundred and forty‑eight (348) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.
Associate:
Dated: 21 December 2020

Appeal from:	CDK16 v Minister for Immigration & Anor [2018] FCCA 3626
File number(s):	NSD 24 of 2019
Judgment of:	GREENWOOD J
Date of judgment:	21 December 2020
Catchwords:	MIGRATION – consideration of whether the Administrative Appeals Tribunal engaged in jurisdictional error in undertaking or purporting to undertake its review jurisdiction under Part 7 of the Migration Act 1958 (Cth) (the “Act”) in deciding that 10 statements put to the Tribunal by the appellant were not reliable and that it was not necessary to obtain oral evidence from any one of the corroborative witnesses – consideration of whether there was an evident and intelligible basis for the Tribunal’s decision not to seek oral evidence from any one of the corroborating witnesses – consideration of the evidence of the corroborating witnesses and the topics addressed by that evidence in the context of the factual claims made by the appellant to hold a well‑founded fear of persecution and the claims to be fearful of a real risk of significant harm should the appellant return to Ethiopia MIGRATION – consideration of whether particular factual findings were open to challenge on the ground of legal unreasonableness and the ground of irrationality in circumstances where the Tribunal made findings of fact without obtaining oral evidence from any of the corroborating witnesses MIGRATION – consideration of contended mistranslations of the evidence of the appellant given at a hearing before the Tribunal – consideration of the translations put forward by the interpreter at the hearing and the translations given by an expert in unchallenged evidence before the primary judge
Legislation:	Migration Act 1958 (Cth), ss 411, 414, 420, 422B, 423A, 424, 424B, 425, 425A, 426, 427, 428, 429A, 441A
Cases cited:	Abebe v The Commonwealth (1999) 197 CLR 510 ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 Bushell v Repatriation Commission (1992) 175 CLR 408 CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2005) 77 ALJR 1165 SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 SZVBB v Minister for Immigration and Border Protection [2015] FCA 1414
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	348
Date of last submission/s:	22 July 2019
Date of hearing:	28 May 2019
Counsel for the Appellant:	Ms T Wong and Mr J Entwisle
Solicitor for the Appellant:	Gilbert+Tobin
Counsel for the Respondents:	Ms R Francois
Solicitor for the Respondents:	MinterEllison

order made by:	GREENWOOD J
DATE OF ORDER:	21 DECEMBER 2020