ATA19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 474

1. Before the Court is an Amended Application filed on 30 October 2025, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 29 January 2019. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicants a Protection (Class XA) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

1. The applicant is a citizen of Pakistan.
2. On 28 January 2014, the applicant arrived in Australia on a Student (Subclass 573) visa.
3. On 1 October 2014, the applicant applied for the Visa with the assistance of a migration agent. The applicant's claims were set out in a Statutory Declaration dated 24 September 2014 attached to his Visa application (Statutory Declaration). Relevantly, the applicant's claims for protection can be summarised as follows:

(1) in 2009, the applicant was stopped at a roadblock and was beaten and abused by the Taliban as a result of his contrary political opinion (Roadblock Incident). The Taliban eventually released the applicant but threatened to kill him if he did not join the Taliban;

(2) his brother subsequently confronted and shot at the Taliban members who beat the applicant. Following this incident, the Taliban members continued to visit the applicant's residence in search of his brother and threatened to kill the applicant if he did not provide his brother to them. The applicant refused and the Taliban detained him as a result;

(3) the applicant was detained for a period of seven days during which time he was tortured and interrogated about his brother's whereabouts. The applicant was taken to the Taliban court and was subsequently released on the condition that he pay them two million Pakistani Rupees;

(4) the applicant and his family were unable to pay this amount, and the Taliban consequently came to the applicant's residence and began firing at them, resulting in a friend's father dying. Following this, the applicant and his brother fled to a neighbouring village where his brother obtained a visa to Saudi Arabia where he fled and now remains;

(5) the applicant and his family fled to a refugee camp in Mardan where they believed they would be safer but the Taliban continued to locate them;

(6) in early 2010, the applicant and his family returned home and found their house had been badly damaged as it had been utilised by the Taliban as a station during the war;

(7) the applicant and his family have been politically active for a prolonged period in Pakistan. The applicant joined the Paktoon Student Federation (PSF) while he studied and attended events held by the Federation and advised fellow students of the need for change;

(8) in May 2011, the Taliban began committing targeted killings and the applicant was fearful that he would be targeted as a result of his political involvement. The applicant began receiving threats and stopped attending school in an effort to keep a low profile. The applicant made arrangements to flee to Australia; and

(9) since fleeing, both the applicant's sister and younger brother are now being targeted.

1. On 9 August 2016, the applicant attended an interview with the Delegate.
2. On 19 August 2016, the applicant's migration agent sent an email to the Department of Immigration and Border Protection, as it then was (Department), and attached several documents in support of the applicant's application for the Visa.
3. On 1 September 2016, the Delegate refused to grant the applicant the Visa.
4. On 14 September 2016, the applicant applied to the Tribunal for review of the Delegate's Decision. In that application, the applicant nominated a new migration agent to act as his representative and provided the email (representative's email address) for correspondence.
5. On 15 October 2018, the Tribunal emailed the representative's email address enclosing an invitation for the applicant to attend a hearing scheduled for 2 November 2018 at 1.00pm.
6. On 30 October 2018, the applicant's representative sent an email to the Tribunal attaching written submissions in support of the applicant's application for review (Written Submissions).
7. On 2 November 2018, the applicant attended the hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Pashto and English languages. The applicant's representative also attended the hearing.
8. On 8 November 2018, pursuant to s 424A of the Act, the Tribunal emailed the representative's email address enclosing an invitation for the applicant to comment or respond to information which it considered may be the reason or part of the reason for affirming the decision under review (Invitation to Comment). The Invitation to Comment identified four matters in respect of which the Tribunal considered the applicant had given changeable evidence, being:

(a) time the applicant took to drive home in January 2009 from the Roadblock Incident;

(b) the applicant's brother's occupation;

(c) the timing of the brother's return and the second shooting; and

(d) payment of the fine.

1. The Invitation to Comment included the following statement:

...

If we rely on this information in making our decision, we may:

• Find that your changeable evidence raises strong concerns with your narrative and credibility as a witness.

• Find that you are not talking about significant occurrences in early 2009 in your home area from personal experience.

You are invited to give comments on or respond to the above information in writing.

Your comments or response should be received by 22 November 2018. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If you cannot provide your written comments or response by 22 November 2018, you may ask us for an extension of time in which to provide the comments or response.

...

1. The full text of the Invitation to Comment is set out in Annexure A to this decision.
2. On 22 November 2018, the applicant's representative provided a response to the Invitation to Comment on behalf of the applicant (Response).
3. On 29 January 2019, the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa.

1. The Tribunal issued its statement of decision and reasons on 29 January 2019 (Tribunal Decision). On 30 January 2019, the Tribunal sent a copy of the Tribunal Decision to the applicant.
2. Insofar as is relevant to the Application before the Court, a summary of the Tribunal Decision is as follows.
3. At paragraphs [1] - [8] of the Tribunal Decision, the Tribunal set out the application before it and the procedural background of the matter.
4. At paragraphs [9] - [10] of the Tribunal Decision, the Tribunal identified that the issue before it was whether the applicant met the refugee criterion and if not, whether the applicant was entitled to complimentary protection. The Tribunal also set out a brief summary of the applicant's narrative.
5. At paragraphs [11] - [14] of the Tribunal Decision, the Tribunal canvassed the background information of the matter as it related to the applicant and his application.
6. At paragraph [15] of the Tribunal Decision, the Tribunal provided a summary of the applicant's key claims.
7. At paragraphs [16] - [21] of the Tribunal Decision, the Tribunal summarised the evidence before it and noted the following material:
   • the applicant's Visa application form lodged on 1 October 2014, which annexed the Statutory Declaration of the applicant;
   • passport pages;
   • the Delegate's decision dated 1 September 2016;
   • the application for review, which annexed a copy of the Delegate's decision;
   • support letters/documents from the PSF and ANP;
   • UNHCR registration and ration cards for IDPs, father's USAID certificate - Pre Harvest Management of Peach Orchards; identification and schooling documents;
   • the Written Submissions; and
   • the Invitation to Comment and the applicant's Response.
8. At paragraphs [24] - [45] of the Tribunal Decision, the Tribunal considered the applicant's claims in relation to the conflict with the Taliban in early 2009. The Tribunal accepted a number of claims and made the following findings:

(1) it accepted that the applicant was stopped at a Taliban roadblock in early 2009 and had an altercation with Taliban members which led to a beating. However, the Tribunal expressed strong concerns regarding the applicant's credibility as it pertained to matters that followed this incident;

(2) the Tribunal identified inconsistencies between the applicant's evidence at the interview before the Delegate and at the hearing. In particular, the Tribunal could not accept the applicant's narrative as it related to the assertion that his brother shot at the Taliban and the subsequent claims that flowed from that;

(3) it accepted that the applicant experienced a beating by the Taliban however, it ultimately determined that this was an isolated incident and did not constitute serious or significant harm, and that further, this incident did not lead to any ongoing adverse interest in the applicant or his family;

(4) it accepted that the applicant and his family sought refuge in a refugee camp as a result of the ongoing violence and conflict in Swat but did not accept that they left the home as a result of military targeting;

(5) it could not accept that the applicant's time spent staying with his cousins was due to his fear of the Taliban, nor could it accept that the applicant's brother fled to Saudi Arabia because of the Taliban, although it did accept that his brother did flee to Saudi Arabia; and

(6) it accepted that the applicant's home may have been damaged when he and his family returned, but it did not accept that such damage was caused by the Taliban. The Tribunal also did not accept that the Taliban was targeting the applicant or his family before the applicant's departure from Pakistan in 2009.

In sum, my strong credibility concerns with the applicant's narrative and evidence about the early 2009 occurrence and aftermath, lead me to reject the story. I find the applicant is not a credible witness and that while he has conducted much of his narrative for the purposes of seeking Australia's protection. While I cannot discount the possibility that the applicant had had arguments with local militants he knew and an altercation with some militants at a roadblock in January 2009 and this led to him being hit, I reject his story about the escalation that followed, in its entirety...

1. The applicant applied for judicial review of the Tribunal Decision on 26 February 2019. The applicant filed an Amended Application on 30 October 2025 which contained the following ground for judicial review (without amendment):
   1. In assessing the credibility of the applicant, the Second Respondent failed to undertake its statutory task in accordance with law. Specifically, the Second Respondent at [21], and [27]-[40]:

1.1 Failed to consider relevant matters,

1.2 Failed duly to consider the relevant question raised by the material, and or

1.3 Acted unreasonably, illogically or irrationally (including reaching a finding without a logical, rational, or probative basis).

Particulars

1. The Second Respondent demonstrated a failure in its reasoning to consider relevant matter and or failed to duly consider the relevant questions raised on the material, including at [21], [27], [29], [34], and [37]-[40].
2. The Second Respondent acted unreasonably, illogically or irrationally (including reaching a finding without a logical, rational, or probative basis), including at: [21], [27]-[29], [34], [37]-[40].

(1) an affidavit filed 26 February 2019 which annexed a copy of the Tribunal Decision;

(2) an affidavit of the applicant's solicitor filed 30 October 2025 which annexed a copy of the audio recording of the Tribunal hearing and a copy of the transcript of the Tribunal hearing; and

(3) written submissions filed 30 October 2025.

1. The Minister filed a Response on 30 July 2020. The Response contained the ground that the Tribunal Decision is not affected by jurisdictional error. The Minister also filed written submissions on 12 November 2025.

1. The hearing took place on 24 November 2025.
2. The applicant was represented by Mr Overend of Counsel. The Minister was represented by Mr Orchard, solicitor, of Sparke Helmore.

1. A "privative clause decision" as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal's decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
2. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at [175].

1. As set out above, the particulars to the single ground of review are that the Tribunal failed to consider relevant matters or questions raised on the materials and/or acted unreasonably, illogically or irrationally. However, the applicant's written submissions, relevantly, are headed "_Erroneous Credibility Assessmen_t". The written submissions are then divided into two main subcategories being "Section 424A Letter and Explanations" which relates to the adverse credibility matters put in the Invitation to Comment, and "Other matters relied upon to make credibility findings against the applicant not included in the Invitation to Comment."
2. At the hearing, I raised with Counsel for the applicant the apparent lack of engagement of the written submissions with the specific grounds of review as contained in the Amended Application. The oral submissions made by Counsel for the applicant were also not structured as in the written submissions. Ultimately, it was submitted that the grounds of review are overlapping and intertwined. Accordingly, I address the applicant's case as advanced in the written submissions and in the order in which they appear.

1. The Invitation to Comment provided that the Tribunal considered that the applicant gave changeable evidence as to his brother's occupation as between the Delegate interview and the Tribunal hearing. The applicant provided an explanation for this in the Response, explaining that the evidence was not inconsistent but sequential.
2. The applicant submits that in its decision the Tribunal made no reference to the explanation provided in the Response as to this matter, nor to the corroborating documents attached to the Response. The applicant submits that the Tribunal itself had identified the brother's occupation as a material question of fact by including it in the Invitation to Comment. Having done so, it is submitted that it was expected pursuant to s 430(1) of the Act to "set out the findings" on that question and "refer to the evidence" on which those findings were based. It is submitted that, by remaining silent on this issue in its final decision, the Tribunal failed to comply with its s 430 obligations.
3. The applicant further submits that it can be inferred from the absence of any reference in the Tribunal Decision to the applicant's explanation and supporting material that they were not considered, with the Tribunal failing to undertake it statutory task, despite the matters being deemed material to the question of credibility as per the Invitation to Comment. Alternatively, it is submitted that the Tribunal illogically gave this no weight.
4. I reject those submissions.
5. As submitted by the Minister, there is nothing in the Act that stands for the proposition that by including a matter in a s 424A letter, that matter is a "finding" or "a material question of fact" in the yet to be determined Tribunal decision. Section 430 of the Act is concerned with the Tribunal's decision on review. A s 4242A letter is not the Tribunal's decision on review. Further, as submitted by the Minister, for the following reasons s 430 of the Act and s 424A of the Act are independent of each other.
6. Firstly, concerns about credibility are not "information" for the purposes of s 424A of the Act and the Tribunal was not required to put these concerns to the applicant: SZBYR v Minister for Immigration Citizenship (2007) 81 ALJR 1190 (SZBYR) at [18]. In oral submissions, Counsel for the applicant conceded this. All four matters raised in the Invitation to Comment went to credibility.
7. Secondly, the use of "would be" in s 424A(1)(a) of the Act strongly suggests that the operation of s 424A(1)(a) is to be determined in advance and independently of the Tribunal's particular reasoning on the facts of the case: SZBYR at [17]. In this context I note that the Invitation to Comment included the following in bold text:

...

Please note, however, that we have not made up our mind about the information.

...

1. The applicant's written submissions contend that the absence of any reference in the Tribunal Decision to the Response and corroborating documents in relation to the brother's occupation gives rise to an inference that the Response and supporting material were overlooked and not considered by the Tribunal. In oral submissions, Counsel for the applicant submitted that the Invitation to Comment identified these issues as "significant" and that adverse credibility findings hinged on perceived inconsistencies in the applicant's evidence. Whilst I accept that the adverse credibility findings hinged on the Tribunal's findings of inconsistencies in the applicant's evidence, I otherwise reject the applicant's submissions as to this.
2. Firstly, it appears uncontested that the fact that a particular matter is not mentioned does not necessarily mean that it was overlooked; the Tribunal might have considered it but given it no weight: Minister for Immigration and Border Protection v SZSRS (2014) FCAFC 16 at [33].
3. Secondly, at paragraphs [16] - [21] of its decision, the Tribunal sets out the evidence before it. Paragraphs [19] - [20] expressly refer to the inconsistencies in the applicant's evidence, the Invitation to Comment and the Response, including specifically identifying the corroborative documentation provided. Accordingly, the Tribunal expressly referred to this evidence in its reasons and was clearly aware of it.
4. Thirdly, the brother's occupation was not a particularly significant issue in the Tribunal's reasoning and no adverse credibility finding in relation to this matter was made. The Tribunal is only required to set out findings on material questions of fact pursuant to s 430(1)(c) of the Act. That the matter was raised in the Invitation to Comment does not result in that matter being a material fact or "deemed material" as asserted by the applicant. The Invitation to Comment forms no part of the Tribunal's reasons, deemed or otherwise, nor does it form part of a line of reasoning which can be used to impugn its credibility findings. As submitted by the Minister, s 424A of the Act is more limited and does not "create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal": SZBYR at [21].
5. In light of all of the above, I consider that the better inference is that the Tribunal considered the Response and the corroborating documents in relation to the brother's occupation but did not consider it material. As submitted by the Minister, where the information was ultimately not material, where the Tribunal did not make adverse findings on this point (and where the Invitation to Comment forms no part of the Tribunal's reasoning process), the Tribunal "failing" to set out explicit reasoning about it could not be an error, let alone a material error. For the same reasons, I reject the submission that the Tribunal's reasoning was illogical. No part of the Invitation to Comment forms part of the Tribunal's reasons.

1. The Invitation to Comment provided that the Tribunal considered that the applicant gave changeable evidence between the Delegate interview and the Tribunal hearing as to the time taken to get home following the Roadblock Incident. The applicant provided a response to this in the Response and an explanation for the apparent inconsistency.
2. The applicant submits that the Tribunal took a similar approach to its perceived inconsistencies in relation to the time taken to get home as with the brother's occupation. The applicant submits that in its decision the Tribunal made no reference to the explanation provided in the Response as to this matter and submits that by remaining silent on this issue the Tribunal again failed to comply with its s 430 obligations. The applicant further submits that as a result, it must be concluded that either the explanation was not considered, or that the Tribunal illogically gave this no weight, omitting this inconsistent explanation in its assessment of credibility, despite it being deemed material to the question of credibility by virtue of the Invitation to Comment.
3. For the following reasons those submissions are rejected.
4. Firstly, for the reasons set out above, the Invitation to Comment formed no part of the Tribunal's reasons and the inclusion of this matter in it does not result in that matter being a material fact or "deemed material" as asserted by the applicant. There is therefore no failure to comply with s 430 of the Act. I refer to and repeat my comments in paragraph [45] above.
5. Secondly, for the same reasons, that the Tribunal did not refer in its decision to the inconsistency identified in the Invitation to Comment and the Response, does not give rise to error.
6. Thirdly, as set out above, at paragraphs [16] - [21] of its decision the Tribunal sets out the evidence before it. Paragraphs [19] - [20] expressly refer to the inconsistencies in the applicant's evidence, the Invitation to Comment and the Response. At paragraph [26] of its decision the Tribunal made findings as to the Roadblock Incident saying:

Ostensibly it is unlikely that in January 2009 the applicant who had just turned 16 was out driving his uncle's vehicle. However, I have given the benefit of the doubt to the applicant and accept that the young applicant was stopped at a Taliban roadblock and he had an altercation with some militants that led to him being hit, and following the altercation he then drove home. However, as discussed at the hearing, the next elements of his narrative, and his evidence about those elements, cause me strong credibility concerns.

1. Accordingly, the Tribunal accepted the applicant's evidence as to the Roadblock Incident. No adverse finding was made by the Tribunal as to this matter. It is clear from the above that the Tribunal's credibility concerns regarding the applicant's evidence arose in relation to the applicant's narrative of the events said to have occurred after he went home. In circumstances where the applicant's evidence as to the Roadblock Incident was accepted, no contention that the Tribunal failed to consider this evidence or remained silent as to it can be sustained.
2. For the same reasons, I reject the submission that the Tribunal's reasoning was illogical.

1. The applicant submits that in the Invitation to Comment:

...The Tribunal found that in his written application and the delegate's interview, the applicant had stated the family could not afford to pay the two-million-rupee fine as it "didn't have that money". Yet at the Tribunal hearing, the applicant gave evidence that the family made a partial payment of 650,000 rupees.

1. This submission must be rejected. For the reasons set out above, no findings were made in the Invitation to Comment.
2. The applicant addressed this issue in the Response.
3. At paragraphs [37] and [38] of its decision, the Tribunal addressed the applicant's evidence in relation to the payment of the fine as follows:

Third, in the applicant's narrative the Taliban levied a fine on them of two million rupees (which he explained had been one million rupees each). However, as discussed at hearing and as put to him in a s424A letter dated 8 November 2018, he has given changeable evidence about this. At hearing he stated the Taliban had fined them two million rupees and by the time of the shooting the family had paid 650,000 rupees. However, as discussed at hearing, this differed from his earlier evidence. In the application he stated "We were released and given twenty days to provide the money. We could not afford to pay this amount. Accordingly, we hoped that they would leave us alone." Then at the delegate's interview he was interpreted to say "We didn't have that money to pay them or we were not even able to sell our property as situation not good and no one interested in purchasing any property we took it normally and said they may not bother us anymore."

At hearing the applicant responded that his statement in the application was just about the main incidents. The applicant's response on 22 November 2018 was that the family had made part payment as he said at hearing; and at the delegate's interview he was only briefly questioned about the Taliban's request for money and so he had not provided full details. However, at the delegate's interview he gave detailed evidence about how the family dealt with the Taliban demand for money. In my foregoing discussion I acknowledge the applicant's evidence should be examined in the light of all the circumstances of the case, nonetheless I have considered but do not accept the applicant's and representative's submissions that seek to explain why the applicant has given changeable evidence. His evidence in the application and at the delegate's interview about the family being unable to afford to pay this amount and how they could not even sell property to raise money and so they merely hoped the Taliban would not bother them and with no mention of raising and paying a large sum, differs significantly from his evidence at hearing that in fact in a short period the family had raised and paid 650,000 rupees, and this causes me to have credibility concerns with his narrative and evidence**.**

1. The applicant concedes that the Tribunal acknowledged his explanation for the differences in evidence, but submits that the Tribunal's reasoning and analysis discloses error. The applicant submits that the Tribunal's reasons for rejecting his explanation were unreasonable and illogical. The applicant submits that the characterisation of the applicant's evidence before the Delegate as "detailed evidence as to how the family dealt with the Taliban demand for money" was unreasonable or illogical. The applicant submits that the evidence before the Delegate relied on by the Tribunal were conclusions and not detailed evidence. Further, it is submitted that the applicant's statements are not logically or rationally inconsistent with his later clarification and that both could be true. Finally, the applicant submits that the Tribunal did not explain why the previous omission should attract such significant weight against the applicant's credibility.
2. I reject those submissions.
3. The Tribunal had regard to:

(1) the applicant's evidence in the Statutory Declaration about the payment of the fine, which stated that the Taliban demanded two million rupees to remove the applicant's name from their blacklist, they "were released and given twenty days to provide the money. We could not afford to pay this amount. Accordingly, we hoped they would leave us alone.";

(2) the applicant's evidence to the Delegate about the payment of the fine, which was that the family did not have the money to pay the Taliban and could not sell property to do so and simply hoped that the Taliban would not bother them further;

(3) the applicant's evidence at the hearing, which was that by the time of the shooting the family had paid the Taliban 650,000 rupees;

(4) the Response and the explanation provided, which was that the applicant's evidence at the hearing that part payment was made was correct, that he was only briefly questioned by the Delegate and did not provide full details and that for full payment to be made the family would need to sell property which was not possible at that time; and

(5) the fact that the applicant's evidence was to be considered in light of all of the circumstances of the case, including that the Delegate's interview might have been constrained by the use of an interpreter and the applicant's discomfort and unfamiliarity with the refugee process and that a person's story can change when told a number of times and undue weight should not be placed on a degree of omission and confusion in the applicant's account at different times.

1. Having taken these matters into account the Tribunal found, contrary to the applicant's submission in the Response that this was a "small inconsistency", that this was a significant difference in the applicant's evidence and gave rise to credibility concerns. The Tribunal's reasoning in paragraph [38] on this issue is set out above. The Tribunal's reasons disclose an evident and intelligible justification for its finding: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [105] (Gageler J); Minister for Immigration and Border Protection v SZVFM [2018] HCA 30 (SZVFM) at [10] (Kiefel J). I consider this was a finding open to the Tribunal on the evidence before it. Accordingly, the Tribunal's finding was not unreasonable.
2. The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to "extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal": Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148]. For the reasons set out above, I consider the Tribunal's conclusion was reasonably open to it and therefore was not one that no reasonable person could come to: SZVFM at [10]. It was not illogical nor irrational.
3. As to the remainder of the submissions on this point made by the applicant, I accept the Minister's submissions that those submissions are essentially submissions on the believability of the applicant's account. For the reasons already set out, I consider the findings of the Tribunal (and the rejection of the applicant's account) were open to it for the reasons it gave. Further, the applicant's submissions do not reflect the submissions made in the Response, which were to the effect that "it is plausible that the applicant and his family paid the money they had available to them to try and appease the Taliban however could not pay the full amount due to lack of resources." Finally, as to the submission that the Tribunal did not explain why the applicant's "omissions" should attract such significant weight against the applicant's credibility, the Tribunal Decision makes it clear that the applicant's evidence regarding the payment of the fines was only one of five bases which gave rise to credibility concerns with the applicant's narrative and evidence about the events of January and February 2009 and that it was the sum of those credibility concerns that led to the Tribunal rejecting the applicant's evidence.

Timing of the brother's return/Second shooting

1. The Invitation to Comment provided that the Tribunal considered that the applicant gave changeable evidence between the Delegate interview and the Tribunal hearing as to the timing of his brother's return and of the second shooting. The applicant provided a response to this in the Response and an explanation for the differing evidence.
2. The applicant submits that the Tribunal gave only "lip service" to the applicant's explanations. The applicant concedes that the Tribunal acknowledged the applicant's explanations but submits that the Tribunal failed to actively and intellectually engage with them. The applicant submits that the Tribunal's basis for rejecting the applicant's explanation was a single unwarranted assumption that the applicant would be able to better recall the events at the Delegate's interview because it was "closer to the claimed occurrences" and therefore the events were "ostensibly fresher in his memory".
3. I reject those submissions.
4. Firstly, as submitted by the Minister in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [26] the High Court said:

Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach...

1. Accordingly, a cautious approach must be taken on judicial review to ensure that the Court does not stray into merits review.
2. Secondly, it is clear, as acknowledged by the applicant, that the Tribunal had regard to the applicant's explanation for his changeable evidence. At paragraph [33] the Tribunal says, after setting out the various evidence of the applicant about the events of January and February 2009:

...The response submitted this was because at the delegate's interview he was confused; the occurrence had been over 9 years ago; at the time of the occurrence he was a young teenager and he finds it difficult to talk about this traumatic event; it is highly conceivable he finds formal interviews very daunting; he became overwhelmed at the interview and felt compelled to give dates and guessed dates; and at the hearing he was more comfortable with the formal interview process.

1. The weight to be given to particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (Lee) at [27].
2. Thirdly, I do not consider that the Tribunal gave only "lip service" to the explanation put forward by the applicant for his changeable evidence. At paragraph [34], the Tribunal expressly acknowledged that:

(1) the applicant's evidence was to be considered in light of all of the circumstances of the case;

(2) the Delegate's interview might have been constrained by the use of an interpreter and the applicant's discomfort and unfamiliarity with the refugee process; and

(3) that a person's story can naturally change in some details when told a number of times.

1. The Tribunal also stated that it considered that "undue weight should not be placed on a degree of omission and confusion in the applicant's accounts provided at different times".
2. The Tribunal then said at paragraph [34]:

...Nonetheless, this does not mean that inconsistent or differing evidence is unimportant and should not reflect on my assessment of the applicant's credibility. The delegate's interview had been a lengthy and formal interview with expectations of honest and accurate answers. Whilst the applicant may have found it difficult to talk about traumatic events he nonetheless did discuss his claims when they were examined at interview, and while the hearing was more than 9 years after the claimed occurrences in 2009, the interview in August 2016 had been closer to the claimed occurrences and so ostensibly fresher in his memory. I have considered but do not accept the applicant's and representative's submissions that seek to explain why the applicant has given changeable evidence.

1. Accordingly, contrary to the applicant's submissions, and as submitted by the Minister, I consider that the Tribunal did analyse the applicant's explanation. At paragraph [35] of its decision the Tribunal sets out its reasons for finding that there were "significant" differences in the applicant's evidence. The Tribunal's reasons disclose an evident and intelligible justification for its finding: Li at [105]; SZVFM at [10]. I consider this was a finding open to the Tribunal on the evidence before it. It was also, therefore, not one that no reasonable person could come to: SZVFM at [10]. It was not illogical nor irrational.
2. Fourthly, the Tribunal did not reject the applicant's explanation on the basis of a "single unwarranted assumption". The making of an unwarranted assumption as part of a credit finding may be reviewed on rationality grounds or because the decision-maker failed to duly consider the question raised by the material: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) at [7]. An unwarranted assumption will establish jurisdictional error, where the assumption is not one which a reasonable decision-maker could make or which has no evident and intelligible basis: BOH17 at [8]. As set out above, paragraph [34] of the Tribunal Decision provides multiple reasons for finding that the applicant's evidence at the delegate's interview was to be preferred and rejecting the applicant's explanation, being that the Delegate's interview was lengthy and formal, whilst the applicant may have found it difficult to talk about traumatic events he did discuss his claims in the interview and that the interview was closer to the claimed occurrences and so ostensibly fresher in his memory. I do not consider there to be any unreasonableness in this approach. In addition, that the Delegate's interview was closer to the claimed occurrences is not an assumption but a statement of fact. I accept that the Tribunal made an assumption that as a consequence, the claimed occurrences would be fresher in the applicant's memory. I do not consider that the Tribunal's reasoning is unreasonable or lacks an evident or intelligible justification. Accordingly, I do not consider that this assumption was unwarranted.
3. I consider the Tribunal's reasons disclose an evident and intelligible justification for rejecting the applicant's explanation for his changeable evidence on this matter and for finding that the applicant's evidence as to the timing of the brother's return and the second shooting differed significantly.

Other matters relied upon to make credibility findings against the applicant

1. The applicant submits that the Tribunal ignored the applicant's "specific, context-rich explanation" for why his brother shot at the Taliban, submitting that the applicant explained this was not a calculated military act but a personal reaction to "bullying" and "disrespect" which in that culture "people cannot tolerate".
2. The applicant submits that the Tribunal's finding at paragraph [27] that the applicant's narrative about this was "difficult to accept in light of the Taliban's dominance and control of Swat at the time" was based on speculation and an unwarranted assumption.
3. The applicant also submits that the Tribunal's adverse findings at paragraph [27] and [28] regarding who the brother shot at were labelled as "evolving evidence" without deeper analysis and failed to account for the fact that the applicant's further evidence was prompted by the Tribunal's questioning and was not a spontaneous contradiction.
4. The applicant further submits that the Tribunal failed to provide proper, genuine and realistic consideration to the applicant's explanation for why he did not know who his brother shot at and specifically why he did not discuss this incident with his brother; instead relying on its own unwarranted assumption as to what two brothers would have done in the circumstances.
5. It is useful to first set out the Tribunal's reasons in paragraphs [27] - [29] in full:

First, the applicant's story about the brother shooting at the Taliban because they hit the applicant is difficult to accept in light of the Taliban's dominance and control of Swat at the time- and at hearing his story about the occurrence evolved as I examined it.

At hearing I put to the applicant that country information shows in January 2009 Fazlullah/Taliban were dominating Swat including Kuza Bandai, and I queried why the brother would openly shoot at talibs. The applicant responded because they knew the talibs who were village locals. But as I then put to the applicant the brother was less likely to shoot at people he knew. Also, in the application when the applicant described the brother's actions he stated "I believe someone told him that I had been bashed. As a result, he approached the Taliban members who I had encountered and shot at them", and then he stated the Taliban came to his house and "They told me that my brother had attacked them and that he must report to them". At hearing the applicant stated the Taliban were always armed with guns, and when I queried why the brother would shoot at a group of armed talibs, the applicant then responded he was not sure whether the brother shot at the group of Taliban at the roadblock or shot at just one talib and perhaps the brother went to the house of one particular militant and shot at just that militant. In his narrative this had been the significant occurrence that led to the Taliban's strong adverse interest in the brother and applicant and led to a further chain of events that caused the applicant and brother to flee the village, and his changeable and evolving evidence at hearing about the occurrence raises credibility concerns.

As well, I have credibility concerns with his evidence at hearing that he does not know who the brother actually shot at that day, in light of the ample opportunity he has had to find out. As I put to the applicant at hearing, he would have discussed with the brother who the brother shot at- whether the Taliban at the checkpoint or just a lone talib. The applicant then explained that after he and the brother had been shot at they had been on the run and had no time to talk, but as I next put to him, in his narrative they had fled and both safely stayed with a cousin in Peshawar and so by then he had ample opportunity to talk with the brother. He responded that they had not wanted to involve or alert the cousin with what had happened, but as I pointed out, in his narrative they had been safe in Peshawar and by then he and the brother would have had ample opportunity to converse in private. The applicant responded that he was just 16 and he had merely asked the brother what the next step was. The submission of 22 November 2018 submitted that at the time of the occurrence he was a young teenager and he finds it difficult to talk about this traumatic event. I have considered but do not accept these explanations. In light of the significance of the brother's claimed actions that day and the ample opportunity the applicant subsequently has had to discuss with the brother what had happened and what the brother did, his evidence at hearing that he never asked and was never told what the brother had done that day, is not credible.

1. I reject the submission that the Tribunal ignored that applicant's explanation for why his brother shot at the Taliban. Firstly, as set out above, a summary of this explanation is set out in paragraph [28] of the Tribunal Decision. Secondly, as submitted by the Minister, the Tribunal is not required to make reference to every piece of evidence or every contention made by the applicant: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (Applicant WAEE) at [46] - [47]. The transcript and the audio file of the Tribunal hearing are before the Court and this evidence comprises only a very small part of the applicant's oral evidence. Further, I accept the Minister's submissions that the evidence was not to the effect submitted by the applicant. As submitted by the Minister:

(1) the applicant did not "explain" that it (the brother's retaliatory shooting) was "not a calculated military act";

(2) the applicant did not use the phrase "culture" in the context of disrespect, but the term "country";

(3) the applicant discussed "bullying" in a general sense, not in respect of the specific incident or a "personal reaction"; and

(4) the applicant's use of the phrase "disrespect" as it is used at transcript page 24 is included in a speculative sense, when the applicant stated, "maybe they also very disrespect and that's why it led to that situation".

1. I also reject the submission that the Tribunal's finding at paragraph [27] was based on speculation and an unwarranted assumption. Firstly, I do not consider that the Tribunal's reasoning is unreasonable or lacks an evident or intelligible justification. Accordingly, if this be an assumption, I do not consider that it was unwarranted. Secondly, the Tribunal did not reject the applicant's narrative as to this incident on this basis solely. It was also rejected because of the evolving nature of the applicant's evidence about this incident. That the changing nature of the evidence was prompted by the Tribunal's questioning and was not a spontaneous contradiction is, in my view, irrelevant. As submitted by the Minister, the Tribunal was required to test the plausibility of the applicant's claims for protection and his account giving rise to those claims. I accept the Minister's submission that in circumstances where the applicant was purporting to convey reasons why his brother shot at the Taliban (being a central pillar of his protection claim) and gave multiple answers, it was reasonable for the Tribunal to test why the applicant had not asked his brother about this and that there is no unwarranted assumption in testing evidence and making findings on the provenance of that evidence. However, should I be wrong, and the Tribunal did make an assumption as asserted by the applicant, then I do not consider that the Tribunal's reasoning is unreasonable or lacks an evident or intelligible justification. The Tribunal articulates, at paragraph [29], that in light of the significance of the brother's claimed actions and the ample opportunity to subsequently discuss what had happened and what the brother did, the applicant's evidence that he never asked and was never told, was not credible. I do not consider there is any unreasonableness in this line of reasoning nor is it a conclusion that no reasonable person could come to. Accordingly, if this be an assumption, I do not consider that it was unwarranted.
2. Finally, as to the assertion that the Tribunal failed to provide proper, genuine and realistic consideration to the applicant's explanation for why he did not know who his brother shot at, as set out above, at paragraph [29] the Tribunal expressly acknowledges the explanations provided by the applicant. The applicant concedes this. The Tribunal clearly had regard to those explanations. The weight to be given to particular evidence is a matter for the Tribunal: Lee at [27]. I have earlier addressed the applicant's contention that in rejecting the applicant's evidence the Tribunal made an unwarranted assumption about what two brothers would do.

1. The Tribunal addresses the second shooting at paragraph [39]. It is useful to set that paragraph out in full:

Fourth, in the applicant's narrative one night some weeks later the Taliban targeted the brother who had returned home from hiding and shot at a group walking home from the Mosque that included the brother, applicant, friend and friend's father. At hearing, he stated that the night the Taliban shot at the brother he in fact never saw anyone and so he could not say whether it was a group of Taliban who shot at them from hiding. He speculated that maybe if weeks earlier his brother had just shot at a sole talib, then maybe it was that talib who shot at the brother. However, as I pointed out at hearing- and he agreed- in his narrative the Taliban had been keen to get the brother after the shooting incident and they had actively searched for the brother, and the Taliban dominated Swat at the time. In light of these circumstances his evidence that the shots came from a hidden, unidentified source at a time when the Taliban would ostensibly have been able to capture the brother with impunity- as they did with the applicant earlier in his story- is not persuasive. As well, as discussed at hearing, his evidence that the Taliban left without checking who had been shot was not convincing. The applicant responded he and the brother just ran away and he speculated that maybe the shooter/s had meant to shoot the friend's father who was a teacher. However, his speculation that maybe the shooter/s had been targeting the friend's father is inconsistent with his broad narrative that this shooting demonstrated to the applicant and brother that the Taliban had decided to target them because of the brother's actions in shooting at the Taliban in January 2009 and this led them to flee together to Peshawar. In sum, I do not accept the Taliban shot at them/their group one night.

1. The applicant submits that the Tribunal's finding of implausibility regarding the applicant's claim that some weeks after his detention, he, his brother, a friend and the friend's father were shot at while walking home from the mosque is materially affected by cumulative errors. It is submitted that the Tribunal's combination of relying on assumptions while ignoring evidence constituted a failure to consider relevant matters and illogicality. Specifically, the applicant submits that:

(a) the Tribunal's reasoning at paragraph [39] relies heavily on an unwarranted assumption; namely, about how the Taliban would have acted given their dominance and desire to capture the brother;

(b) the Tribunal's rejection of the applicant's speculation that the teacher might have been the target failed to engage with the substance and context of the applicant's explanation and appears to rely on an overly rigid view of narrative consistency and fails to demonstrate "active intellectual engagement" with the applicant's evidence and the traumatic context; and

(c) in finding it unconvincing that the shooters left without checking the victims the Tribunal failed to refer to the applicant's evidence describing the immediate aftermath: intense gunfire (15 to 20 bullets), screaming and the applicant and his brother running away in fear. It is submitted that this chaotic context, including potential return fire or the shooters own desire to escape after the attack, was relevant to the plausibility of the departure without checking the victims. By failing to reference or engage with this evidence the Tribunal failed to consider material relevant to assessing the plausibility of this aspect of the applicant's claims.

1. For the following reasons, I reject those submissions.
2. In relation to submission (a) above, the Minister submits that the Tribunal's findings about how the Taliban would have acted in the second shooting was not based on an unwarranted assumption but rather, was based on an analysis of country information. I accept that submission. Whilst no specific reference is made to country information in paragraph [39]:

(a) at paragraph [26] the Tribunal refers to the "large volume of general country information about the turbulence in Swat" and finds that "the applicant's narrative about local conditions in early 2009 with many militant road blocks and constant harassment" was consistent with country information and that by late January 2009 militants were reported to have seized control of almost all of Swat;

(b) at paragraph [28] the Tribunal refers to country information which shows that in January 2009 Fazlullah/Taliban were dominating Swat including Kuza Bandai; and

(c) at paragraph [43] the Tribunal refers to a large volume of country information concerning the security situation in Swat during the period from 2008 and 2009.

1. In light of the above, I accept the Minister's submission that the Tribunal's findings about how the Taliban would have acted (noting that the applicant put multiple scenarios) in the second shooting was based on an analysis of country information that showed the Taliban had complete control of Swat and that harassment was common, as was Taliban control of checkpoints and that the Tribunal reasoned based on that country information that it was unlikely the Taliban would simply leave after the event if they were actively searching for the brother given their control of the area. Further, it was also based on the applicant's own evidence that the Taliban were keen to get the applicant's brother and were actively searching for him. I note that at paragraph [39] the Tribunal says:

...However, as I pointed out at hearing - and he agreed - in his narrative the Taliban had been keen to get the brother after the shooting incident and they had actively searched for the brother, and the Taliban dominated Swat at the time...

1. However, should I be wrong and the Tribunal did make an assumption about how the Taliban would have acted, based on the country information to which it had regard and the applicant's own evidence, I do not consider that the Tribunal's reasoning is unreasonable or lacks an evident or intelligible justification. Accordingly, if this be an assumption, I do not consider that it was unwarranted.
2. As to submission (b) above, I refer to and repeat my comments in relation to "actively intellectual engagement" above. This submission is rejected.
3. By submission (c) above, firstly, the applicant seeks to construct another plausible explanation for his evidence in relation to the shooting. By so doing, he invites the Court to engage in impermissible merits review. Secondly, it is not necessary that the Tribunal refer to every piece of evidence nor every submission made: Applicant WAEE at [46]. The Tribunal was plainly aware that the applicant contended that he was involved in a situation with gunfire and I see no basis to infer that the Tribunal did not have regard to the applicant's description of this event. Thirdly, I consider that the Tribunal's finding as to the second shooting was a finding open to it on the evidence before it. It also therefore was not one that no reasonable person could come to: SZVFM at [10]. It was not illogical. That there may be other possible scenarios is insufficient to establish illogicality.
4. No jurisdictional error is disclosed in relation to the second shooting.

1. At paragraph [40] of its decision the Tribunal found that the applicant's evidence about how he and his brother fled to Peshawar to be unconvincing.
2. The applicant submits that in rejecting the applicant's evidence as to this, the Tribunal relied on its own assumption that the Taliban would invariably check all passengers on public transport, even on a crowded minibus. The applicant submits that this is an unwarranted assumption which failed to identify specific country information detailing the Taliban minibus inspection protocols in Swat in 2009. I reject those submissions.
3. At paragraph [40] of its decision, the Tribunal said:

Fifth, the applicant's evidence about how he and the brother fled to Peshawar is unconvincing. At hearing he stated they got to Peshawar after they crossed the river and climbed over a mountain and then travelled on a public minibus. However, as I pointed out at hearing, at that time in Swat the Taliban would have had public transport such as minibuses under surveillance and readily checked them. The applicant agreed and said the Taliban had indeed stopped the minibus about three times on the way but fortunately they had just spoken to the driver as there were so many passengers, and anyway the Taliban were mainly after government employees who did not use minibuses. But as I then pointed out, his evidence had been that there had been many Taliban roadblocks where the Taliban were always checking and hassling travellers, and it is not credible that on these several occasions the Taliban did not check passengers on a minibus merely because it was full.

1. Accordingly, there was no unwarranted assumption about Taliban behaviour in relation to checking passengers on public transport. As submitted by the Minister, it was the applicant's own evidence that the Taliban had public transport such as minibuses under surveillance and readily checked them. The applicant also gave the following evidence at the Tribunal hearing:

...

MEMBER: So mid or late January. And were the Talibs at a roadblock?

...

APPLICANT: They had been stop me and usually they had checkpoints everywhere in Kuza Banda, on every road, so they stopped me and they were stopping every car and they were just checking for some of those things, check the cover and photos and things like that, and they were just checking your IDs, whether if it is a government employee or not. So they were checking the people, if they find government employees, so they would take him out of the car and beat him and just tell him to give them money or something like that.

...

1. The applicant also gave evidence, recorded at paragraph [39] of the Tribunal Decision, that there were many roadblocks where the Taliban were always checking and hassling travellers.
2. In these circumstances, the Tribunal found the applicant's evidence that, although his minibus was stopped two or three times on the way, the Taliban did not check all identification documents for all passengers and just talked to the driver and the collector, was not credible. That finding has a clear and intelligible justification. It was not one that no reasonable person could come to: SZVFM at [10]. It was not illogical.
3. No jurisdictional error is disclosed in relation to the escape.

1. For the reasons set out above, no jurisdictional error on the Tribunal's behalf is disclosed.

1. Accordingly, the Amended Application must be dismissed.
2. The Minister seeks an order that the applicant pay its costs in an amount to be fixed. Accordingly, I order that the applicant pay the Minister's costs in the amount of $9,097.93, being the amount provided in accordance with sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

ANNEXURE A