AUU15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-05-10|Before: Smith J

Leave to appeal with respect to grounds 8 to 10 is refused.
The appeal is otherwise dismissed.
The appellant to pay the respondents' costs to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 The appellant appeals from a judgment of the Federal Circuit Court: AUU15 v Minister for Immigration & Border Protection [2017] FCCA 2220.

Background 2 The appellant is a widowed female citizen of Pakistan. She arrived in Australia on 6 July 2013, and applied for a protection visa on 20 August 2013. The appellant claimed to fear harm from the Taliban if she returned to Pakistan. 3 On 6 May 2014 a delegate of the Minister refused to grant the appellant a protection (Class XA) visa. 4 According to the delegate's decision record, the appellant claimed that she was a practising Sunni Muslim. She said her residential area was targeted by terrorist groups including Tehrik-I-Taliban (TTP) militants who were shooting at homes and threatening the appellant and the local community to comply with orders and to adhere to Sharia law. 5 The appellant claimed that she taught religious scriptures at her home to local Muslim children. In June 2012 a group of TTP militants entered her home and instructed her to encourage the female students to wear the burka and to cease school attendance. She told the militia to deal with the children's parents. The militants visited her again within a month and told her that she must follow their instructions or cease teaching. 6 The appellant ceased teaching and travelled to Australia to visit her son on a visitor visa. She returned to Pakistan in December 2012 and found that militants were moving boxes into her home which she said contained drugs and weapons. The TTP militants visited her and told her that they wished to use her house. They told her she could leave the house or continue to reside there with the TTP occupying several rooms of the house. She claimed the TTP told her that if she complained to authorities she would be traced and killed. 7 She decided to sell her house. The real estate agent told her he had been threatened and told not to sell the house to anyone but the TTP. She eventually left the home and her sons told her they would transfer the house into their names to avoid any issue with the TTP. 8 She decided to flee Pakistan with the assistance of her son.

Delegate's decision 9 The delegate accepted that the appellant was a widowed woman from Pakistan. 10 However, the delegate did not accept her claims that she was targeted on account of her religious teachings, noting that she taught the religion of the TTP. Although the delegate noted that the TTP may have approached her in order to further exert the TTP's influence as to social norms over children she was teaching, it was not accepted that the applicant was persecuted on account of her religious scripture teaching, particularly as she ceased teaching by 2012. 11 The delegate did not accept as credible the appellant's claims that the TTP were residing in her home or trying to take her home from her by force or acquisition. Despite fearing harm from the TTP militants, she had stayed at the house with them for several months, had not sought refuge elsewhere and had not sought protection from State authorities. When that was put to her, she said she was threatened with bullets and told she would be killed if she told authorities. The appellant said at the interview that she owned another house but it was rented out. 12 The delegate noted that the TTP had not sought to forcibly take her house but she had agreed to sell it to them, although she claimed they had not paid her. The delegate noted there was no corroborative evidence that the TTP had occupied her home or refused to pay for her house. Country information did not support the claim that the TTP was systematically involved in the forced acquisition or sale of properties. 13 Having rejected those claims on credibility grounds, the delegate then considered the issue of harm in the context of a Convention reason. The claimed harm was that the appellant feared she would be killed by TTP militants in Pakistan as an elderly female without male protection and that the State is unable to adequately protect her from harm. 14 The delegate noted the appellant had been living as a single widowed woman in Karachi since 2011 and had travelled as a single woman without issue. There was no evidence of her approaching the State for protection and nothing to suggest authorities were unable to assist her. The fear of harm affected the broader population and was not a result of persecution faced by her individually. The delegate was not satisfied that the appellant faced a real chance of persecution on the basis of her membership of a particular social group, being widowed women in Pakistan. 15 Nor was the delegate satisfied that there were substantial grounds for believing that there was a real risk the appellant would suffer significant harm if she was removed from Australia. Accordingly, the delegate was not satisfied Australia had protection obligations to the appellant. 16 The appellant applied to the Refugee Review Tribunal (Tribunal) for a review of the delegate's decision.

Tribunal's decision 17 The Tribunal conducted a hearing on 16 March 2015. The appellant appeared with the assistance of an interpreter and gave evidence. The appellant's claims as to being targeted by the TTP (referred to by the Tribunal as the Taliban) and having her home occupied by them were in substance reiterated. 18 At the hearing, the appellant referred to a telephone call she had received from another protection visa applicant known as Ms ATP15 by which it was apparent that Ms ATP15 knew that the appellant had applied for a protection visa. The appellant was concerned that her confidentiality had been breached. 19 Ms ATP15 had a connection with the appellant. Although not directly related, the appellant's son is married to Ms ATP15's husband's sister. They met at Karachi Airport and travelled to Australia on the same flight. Ms ATP15 sat in a seat adjacent to the appellant on the flight. Both went to the appellant's son's address when they arrived. Both recorded the appellant's son's address as their address in their visa applications. They shared the same migration agent and both the appellant and Ms ATP15 lodged their applications for protection visas on the same day. 20 These matters were raised with the appellant by the Tribunal at the hearing. The appellant said she did not speak to Ms ATP15 much on the plane, and denied that she knew anything about Ms ATP15 coming to Australia. When it was put to her that the only address given was common, the appellant said she sometimes goes to live in Canberra with her cousin's daughter but does not know her last name or address. She said that when they live at the same house they live in their own rooms and so do not talk much. 21 On 20 March 2015 the Tribunal issued a letter to the appellant under s 424A of the Migration Act 1958 (Cth) (Act) which identified the Tribunal's concerns with the appellant's evidence and explained its relevance. In particular, the Tribunal identified its concern with the degree of similarity between the appellant's claims for protection and those of Ms ATP15, and what appeared might be attempts to mislead the Tribunal about the connection between Ms ATP15 and the appellant. 22 Because of its relevance later in these reasons, I include the relevant content of the s 424A letter (edited to anonymise Ms ATP15): The particulars of the information are: • You arrived in Australia on 6 July 2013 and you entered Australia at 06.49.25. • You gave a residential address and a postal address of [street address] on your Protection visa application. • Your Protection visa application was lodged with the assistance of your migration agent, Mr Sivalohan Lohitharajah, on 20 August 2013. • Evidence before the Tribunal indicates that Ms ATP15, who has also given the address of [street address] also entered Australia on 6 July 2013 at 06.49.25. Ms ATP15 has also lodged an application for a Protection visa with the assistance of Mr Sivalohan Lohitharajah on 20 August 2013. • When Ms ATP15 attended a hearing at the Refugee Review Tribunal on 9 March 2013 she told the Tribunal that she travelled to Australia alone. • The statement provided with the application for a Protection visa made by Ms ATP15 is in a very similar format to your statement provided with your application and you have both made similar claims to fear harm from the Taliban in Pakistan. • When Ms ATP15 was asked about you during the Tribunal hearing she attended on 9 March 2013 she indicated that you are someone in your community who she calls 'aunty', and it was only later that she then said that you are her sister in law's mother in law. She stated that you do not live with her all the time and you live in Canberra sometimes. • When you were asked, at the Tribunal hearing that you attended on 16 March 2015, for the name of the person in Canberra who you stay with and the suburb in Canberra where that person lives, you were only able to say her first name and you said you do not know her second name and you do not know the name of the suburb in Canberra. • Ms ATP15 told the Tribunal during the hearing that you previously lived with your brother in Lahore because you cannot stay in Karachi alone. The above information is relevant because the Tribunal may find that you and Ms ATP15 have attempted to mislead the Tribunal. The Tribunal may find that you had not previously mentioned you had arrived in Australia with Ms ATP15 who travelled to Australia with you and lives with you at the same address in Australia. The Tribunal may find that your claims in relation to living with a relative in Canberra whose full name you do not know are false. The Tribunal may find that you have attempted to engage in deception in relation to these issues. The Tribunal may find that you have done so because it was planned and organised in Pakistan that you and Ms ATP15 would travel to Australia together to live at your son's house and make claims for protection. The Tribunal may find that yours and Ms ATP15's claims that it was 'coincidental' that you were both on the same plane together and travelling to your son's house is not truthful. The Tribunal may find that your claims at the hearing that Ms ATP15 telephoned you and told you she had only just learned from the Tribunal that you had applied for protection is not truthful and indicative of your continued willingness to engage in deception. The Tribunal may find that you lived in Lahore with your brother and your claims in relation to Karachi are false. The Tribunal may find that your willingness to provide untruthful evidence about this issue is because, combined with other issues raised with you during the hearing, is due to the fact that you are not a truthful witness and you have fabricated the entirety of your claims regarding your experiences in Pakistan. If the Tribunal finds that you have manufactured the entirety of your claims regarding your experiences at the hands of the Taliban and there is no other basis on which there is a real chance you would suffer serious harm or a real risk that you would suffer significant harm in Pakistan, the Tribunal will find that you are not owed Australia's protection obligations, either under the Refugees Convention or the complementary Protection provisions. The Tribunal will find, therefore, that you do not meet the criteria for the grant of Protection visas. 23 The appellant was invited to comment on the matters in the letter. She responded on 3 April 2015. She denied having any knowledge that Ms ATP15 had made an application for a protection visa. She said that it was completely coincidental that she met with Ms ATP15 at Karachi International Airport on her way to Australia and they met in the ticket queue. She said that she mostly lives in Canberra and not Sydney and that the reason she could not remember the second name of the person she stayed with or the suburb in Canberra was due to her age and that Australian names are new and foreign to her. 24 The Tribunal delivered its reasons on 21 April 2015. It did not consider the appellant to be a truthful witness. It found the appellant fabricated the entirety of her claims for the purpose of the application for protection. It accepted that she was a widowed woman from Pakistan but did not accept she had been targeted by the Taliban or any extremist group or that the Taliban occupied her house. The Tribunal considered that the appellant's claims were not supported by the independent evidence, were not credible, that the appellant gave evidence at the hearing in a rehearsed manner and had considerable difficulty reverting from her prepared statement when asked by the Tribunal to do so. 25 The Tribunal found that the appellant's manner of travelling to Australia with Ms ATP15 and applying for visas was planned and orchestrated and that the appellant's denials were indicative of her being an untruthful witness. 26 The Tribunal pursued lines of questioning during the hearing to which it considered the appellant was unresponsive. Further, it did not consider her claims as to the Taliban were credible. It did not accept that it is credible that a woman in her sixties was targeted by the Taliban for teaching children the Koran in her home. It noted Sunni Muslim is the religion of the Taliban and the Tribunal did not accept the Taliban would target a woman with a commitment to those beliefs. It noted there was no evidence of threats being made generally to teachers or female students in Karachi. It did not accept that the Taliban would consider the home of a 60 year old woman, a woman at considerable risk of reporting matters to the police, to be an appropriate place to store drugs and weapons. It did not accept her family would have allowed her to remain living in Karachi if she were at risk or that she would willingly stay living with terrorists in her home. 27 The Tribunal did not consider the appellant's evidence as to her fears as to what may happen upon her return to Pakistan to be credible. The appellant claimed that she held fears because the police are friends of the Taliban and will catch her at the airport. She said she did not know why they would want to kill her but that they would follow her and try to kill her. When asked a number of times why they would be interested in her she said she did not know and was unable to answer. The Tribunal, having considered all the evidence, did not accept she had been targeted by the Taliban. 28 However, the Tribunal accepted that the appellant was a widowed woman and such women are a cognisable group in Pakistan and that without male support, women can be marginalised. The Tribunal did not accept on the evidence that she was without family support, noting that she travelled independently and visited family. It did not accept her family would fail to ensure she was able to live safely in Karachi. She did not claim to be the victim of criminal activities and taking into account that there is considerable violence in Karachi, it did not accept that violence would be inflicted on her because she is an elderly widowed woman or for any other Convention reason. 29 The Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention reason. The Tribunal also considered the complementary protection provisions. For the same reasons, it was also satisfied there was not a real risk that the appellant would suffer significant harm if she returns to Pakistan because she is an elderly widowed woman or because the area in which she lives is particularly prone to violent activities. 30 The Tribunal affirmed the delegate's decision not to grant the protection visa.

The position with Ms ATP15 31 Ms ATP15's application for a protection visa was also refused by the delegate. She applied with her husband. They both sought a review in the Refugee Review Tribunal, which affirmed the delegate's decision (the same Tribunal member determined their review and that of the appellant, Ms AUU15). They sought judicial review from the Federal Circuit Court, which dismissed the application: ATP15 & Anor v Minister for Immigration & Anor [2015] FCCA 2289. They then appealed unsuccessfully to the Federal Court: ATP15 & Anor v Minister for Immigration & Anor [2016] FCAFC 53; (2016) 241 FCR 92. 32 As is apparent from the Full Court reasons in ATP15: (a) during her evidence before the Tribunal, Ms ATP15 was asked questions about the circumstances surrounding her travel to Australia; (b) she was asked a series of questions about Ms AUU15; (c) she was asked about information that suggested she was living at the same address as Ms AUU15 and that they had travelled together; (d) shortly after her hearing, the Tribunal wrote to Ms ATP15 and it was obvious the letter was sent having regard to s 424A of the Act. It set out certain particulars about the circumstances of the travel and visa application and Ms ATP15 provided a written response; (e) the Tribunal sent a similar letter to Ms AUU15 in the context of Ms AUU15's separate review proceedings in the Tribunal and she also provided a written response; (f) Ms ATP15 pressed two grounds of judicial review in the FCCA: (i) that the Tribunal refused to consider Ms AUU15's response in Ms ATP15's review and it was obliged to do so; and (ii) that she was not provided with full particulars of Ms AUU15's response in contravention of s 424A; (g) the first ground was rejected on the basis that the primary judge did not accept there was a basis for drawing an inference that the Tribunal had regard to Ms AUU15's response when dealing with Ms ATP15's review. Even if it were corroborative, that did not of itself give rise to an inference that the Tribunal was obliged to consider the response; (h) the second ground was rejected on the basis that the particulars provided were adequate; and (i) Ms ATP15 appealed from the dismissal of the first ground to the Federal Court. 33 Before referring to the reasons of the Full Court, it is helpful to first set out s 424 of the Act: Tribunal may seek information (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. (3) A written invitation under subsection (2) must be given to the person: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the person is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. 34 As to access to Ms AUU15's response in Ms ATP15's review, the majority (Tracey and Griffith JJ) stated as follows (at [23] and with original emphasis): It is important to note the opening words of the provision. They make clear that the provision, including the obligation it imposes, applies to the Tribunal "[I]n conducting the review". In this case, this is a reference to the Tribunal's review of the delegate's decision refusing the appellants Protection visas. We do not consider that this provision applies to evidence which is sought and obtained by the Tribunal in the context of it conducting a review of an application made by someone else. The information which the Tribunal obtained from [Ms AUU15] in her response to the Tribunal's s 424A letter to her is not information which the Tribunal had sought nor had "gotten" in conducting its review of the appellants' cases. Rather, that information is information which the Tribunal had sought and had "gotten" in conducting its review of [Ms AUU15's] case. The position might be different if the Tribunal had relied on [Ms AUU15's] response in rejecting the appellants' cases. But it did not do so. 35 The majority noted that whilst in its s 424A letter to Ms ATP15 the Tribunal referred to evidence given by Ms AUU15 during her review hearing, it did not refer to Ms AUU15's response letter. Therefore, there was no basis for inferring that the Tribunal had regard to that response letter in affirming the delegate's decision (at [24]-[25]). 36 The majority also noted that it was open to Ms ATP15 to ask the Tribunal to take into account Ms AUU15's response letter or take evidence from her but she did not do so (at [26]). 37 Further, the majority rejected a submission that the Tribunal was obliged to take into account Ms AUU15's response letter on the basis it was corroborative evidence which, if considered, would have been of significance in the Tribunal's reasoning. The majority did not consider the information to be critically important and did not consider the Tribunal was obliged to take it into account. The range of matters relied upon by the Tribunal in finding that Ms ATP15's evidence was unreliable went beyond what Ms AUU15 had said in her response letter. The adverse credibility finding was based on its rejection of Ms ATP15's account of events (at [31]-[32]). 38 Justice Flick in dissent considered that the opening words, 'the Tribunal may get information…', were not to be read so narrowly as to confine it in the way suggested by the majority. His Honour considered that in bringing the information within the scope of Ms ATP15's review, the Tribunal 'got' or obtained information from Ms AUU15. The fact that the Tribunal may initially 'get' information for one review does not preclude a conclusion that it may 'get' the same information for the purpose of another review (at [59]). In circumstances where relevance was not in issue, his Honour considered the Tribunal had not had regard to the entirety of the information in the circumstances of the case and that accordingly there had been a breach of s 424(1) by the Tribunal (at [64]-[67]). Flick J acknowledged that it remains clear that the mere fact that a Tribunal obtains information does not require a conclusion that it then considers that information to be a reason or part of the reasons for affirming a decision under review (at [50]). 39 A special leave application brought by Ms ATP15 was dismissed on the papers under r 41.08.1 of the High Court Rules 2004 (Cth): ATP15 & Anor v Minister for Immigration and Border Protection & Anor [2016] HCASL 214 (1 September 2016).

The appellant's application to the Federal Circuit Court 40 The appellant in this matter sought judicial review of the decision of the Tribunal by the Federal Circuit Court. The primary judge had the benefit of the Full Court's reasons in ATP15 when considering the application. 41 By the grounds of review, it was alleged that the Tribunal was bound by s 424 of the Act to consider Ms ATP15's response to the Tribunal, but did not (Ground 1). Alternatively it was alleged that the Tribunal was forbidden by the Act to have regard to that same material (Ground 2). Finally, it was alleged that the Tribunal contravened s 424A because it failed to provide the appellant with adequate particulars of certain information (Ground 3). The primary judge described the information as: the statements Ms ATP15 and the applicant provided in support of their applications for protection visas which were 'in a very similar format' and that Ms ATP15 and the appellant made similar claims to fear harm from the Taliban in Pakistan. 42 Consistent with the reasons of the Full Court in ATP15, his Honour: (a) rejected Ground 1, because Ms ATPl5's response to her s 424A letter (which the appellant contended the Tribunal was bound to consider by operation of s 424A) was not information sought and obtained by the Tribunal in conducting the appellant's review; (b) rejected Ground 2, finding that the Tribunal was not precluded from using information obtained in its review of Ms ATPl5's visa application; and (c) rejected Ground 3, finding that s 424A did not oblige the Tribunal to provide particulars of Ms ATPl5's visa application. Ms ATP15's claims for protection, in themselves, could not constitute a 'rejection, denial or undermining of the appellant's claims for protection', and so did not fall within the scope of s 424A(l): SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]. 43 The appellant originally included a fourth ground of review, asserting that: the Tribunal erred in finding that it was not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a consequence of being removed to Pakistan, the Tribunal asked itself the wrong question and thereby constructively failed to exercise jurisdiction. 44 This ground was abandoned before the primary judge.

The appeal to this Court 45 The appellant was self-represented at the appeal and had the assistance of an interpreter. She made some oral submissions but they addressed her ill-health and her fear of returning to Pakistan. 46 Grounds 1 to 6 are as follows (with minor editing): 1. The judgment was not given correctly and s 424A of the [Act] was not correctly implemented by [the Tribunal]. 2. The [Tribunal] failed to have regard to corroborative evidence. 3. By letter dated 19 March 2015, the Tribunal invited a person to give it information it considered relevant. 4. On or about 1 April 2015, that person gave the Tribunal information. However, the Tribunal did not have regard to the information in affirming the decision under review. 5. The Tribunal was required to have regard to that information under subsection 424(1) of the [Act] or, alternatively, in fulfilling its statutory task of considering the applicant's claims. 6. Further or in the alternative to 1, the Tribunal did not comply with the mandatory requirements of section 424A of the Act. 47 Grounds 1 - 5 can be dealt with collectively. There is also an overlap with ground 11, which asserts (amongst other things) that there was a failure on the part of the Tribunal to comply with s 424AA of the Act. 48 Ground 6 was not elucidated but I take it to be a complaint as to inadequacy of particulars, as raised by ground 3 before the primary judge. 49 Ground 7 simply seeks that the primary judge's decision be quashed. 50 Ground 8 asserts a lack of procedural fairness by the disclosure of confidential information, which it is assumed is a complaint about the disclosure of the fact that the appellant was seeking a protection visa to Ms ATP15. This was not raised before the primary judge. 51 Ground 9 asserts the Tribunal failed to comply with s 425 of the Act in that it did not invite the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues. The issues in question were said to arise from the Tribunal's statements that the appellant's evidence did not establish that her area of Pakistan was particularly violent and did not establish that her brothers and sons would fail to ensure she is able to live safely and securely in Pakistan. Again, this ground was not raised below. 52 Ground 10 is in the same terms as the abandoned ground 4 of the application to the Federal Circuit Court. 53 Grounds 8 to 10 were not advanced in the Federal Circuit Court. I have treated them as if an application for leave to appeal on those grounds had been formally made. 54 Ground 11 is a generalised complaint that s 424AA was contravened. It recites that the Tribunal may give information orally and then must ensure, as far as is reasonably practicable, that the appellant understands why the information is relevant and must invite comments. No particulars of the complaint were given.

Grounds 1 - 5 55 In context, the contention is that Ms ATP15 provided information by way of her letter in response dated 1 April 2015 to the Tribunal's s 424A letter to her dated 19 March 2015. It is then said that the Tribunal had that information and it should have been used in the appellant's review, and that the evidence corroborates that of the appellant. 56 The grounds raise the same issues addressed by the primary judge as ground 1. 57 Counsel for the appellant who appeared on her behalf before the primary judge said that there were factual differences between the matters relevant to the appellant's review and that of Ms ATP15, but did not suggest they were material. The primary judge considered there were no material factual differences and that accordingly the Full Court decision in ATP15 determined ground 1. 58 His Honour noted that: (a) the Tribunal sent a s 424A letter to Ms ATP15; (b) it did so for the purpose of reviewing Ms ATP15's review application, not to seek or get information in conducting the appellant's review; (c) it did not refer to Ms ATP15's response in its reasons for decision in the appellant's review; (d) this was in contrast to the fact it referred to other information received from Ms ATP15 in the appellant's review; (e) the Tribunal was not obliged to have regard to Ms ATP15's response in conducting the appellant's review. 59 His Honour's reasoning was consistent with that of the Full Court in ATP15. There is nothing in the reasons of the Tribunal that suggests that the information sought from Ms ATP15 in the s 424A letter to her was sought for the purpose of Ms AUU15's review or relied upon in order to reject Ms AUU15's claim. 60 The primary judge also considered whether Ms ATP15's response should have been taken into account as corroborative evidence. The submission before him was that both Ms ATP15 and the appellant denied they had planned and orchestrated their coming to Australia for the purpose of them applying for protection visas, and that they both asserted factual matters such as meeting at Karachi airport were coincidence. 61 The submission as to corroboration relates to the finding that the appellant was an untruthful and unreliable witness. That was the context in which the Tribunal considered the appellant's evidence as to her arrival in Australia. 62 The primary judge rejected that submission, primarily because he considered that even had Ms ATP15's response been accepted as evidence in the appellant's review, the mutual denials and assertions of coincidence were not capable of 'repelling the drawing of the inference of collusion that was clearly available to be drawn from the matters on which the Tribunal relied' (at [35]). 63 In ATP15 the Full Court also considered, and rejected, the submission that Ms AUU15's response letter comprised corroborative evidence. It noted that the type of evidence by way of Ms AUU15's response letter was not of critical importance or significance to Ms ATP15's claim (in contrast, for example, to the evidence the subject of Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99). 64 The nature of the information in Ms AUU15's response letter considered in APT15 and the nature of the information in Ms ATP15's own response letter was similar. That is, both Ms ATP15 and the appellant denied they had planned and orchestrated their coming to Australia for the purpose of them applying for protection visas, and they both asserted factual matters such as meeting at Karachi airport were coincidence. There is no proper basis to distinguish the nature of that information in the respective appeals: the information itself was not critical to the appellant's claim for protection. 65 As already noted, the Full Court in ATP15 also said that the range of matters relied upon by the Tribunal in coming to the conclusion that Ms ATP15 was an untruthful witness extended beyond what Ms AUU15 had said in her response letter. 66 So too in this case, the Tribunal relied upon a range of matters in concluding that the appellant was an untruthful witness, primarily its rejection of the appellant's version of events. The Tribunal states as follows in its reasons (edited to anonymise Ms ATP15): The Tribunal accepts that the applicant and Ms ATP15 are not related to each other and the extent of their relationship is that the applicant's son is married to Ms ATP15's husband's sister. The Tribunal does not accept any other aspects of the applicant's explanation for why she travelled to Australia with Ms ATP15 on the same plane and sat next to her on that plane in circumstances where they were both going to the same address in Sydney where the applicant's son resides with his wife (Ms ATP15's husband's sister). The Tribunal does not accept that this was 'coincidental' and also does not accept that it is 'coincidental' that they then both made applications for protection using the same migration agent who prepared applications for them in a similar format relying on claims in each application that they both feared harm from the Taliban. The Tribunal does not accept that the applicant did not know this until advised by Ms ATP15 after Ms ATP15 attended a hearing. The Tribunal accepts that the applicant may not recall the suburb in Canberra where her cousin's daughter resides but does not accept that she would not know the last name of someone whom she lived with in Australia. In the Tribunal's view, the applicant's claims that they were both travelling on the same plane to Australia and sat next to each other on that flight and they would coincidentally lodge applications for protection relying on the same agent, yet none of this would be known to the applicant until she was told by Ms ATP15, which was more than 18 months after she and Ms ATP15 arrived in Australia together, is not believable. The Tribunal accepts that the applicant has been upset because of the information discussed with her in relation to her travel and living arrangements with Ms ATP15. The Tribunal does not accept the applicant's evidence that she was upset because she feared she would be dishonoured. The Tribunal considers that the applicant was upset because she was advised by the Tribunal that this issue may be adverse to her credibility and was aware the Tribunal had information before it that established she had travelled to Australia with Ms ATP15, who lives at the same address as her in Australia. The Tribunal accepts that it is unfortunate that the Tribunal's disclosure upset the applicant. However, given the adverse nature of this information, the Tribunal formed the view that it was necessary that it be discussed with the applicant during the hearing in compliance with its s 425 obligations and that the information be put to her in writing after the hearing in compliance with its s 424A obligations. In any event, the Tribunal does not accept that the applicant was 'shocked' to learn that the Tribunal had told Ms ATP15 she had applied for protection. The Tribunal does not accept that Ms ATP15 did not know about the applicant's application until she was informed by the Tribunal. The Tribunal does not accept that the applicant genuinely believes her confidentiality has been breached or that she will be dishonoured in her community. The Tribunal considers that the suggestion that the applicant's mental state and health have been affected, and she feels 'let down' by the breach of her confidentiality by the Tribunal disclosing information, which would have been known to Ms ATP15, is indicative of the applicant's attempts to deflect her involvement in fabricating untruthful evidence. In the Tribunal's view, the applicant's travel to Australia with Ms ATP15 and their lodgement of Protection visa applications was planned and orchestrated and her denials of this are indicative of the fact that she is an untruthful witness. 67 I note for completion that in its reasons the Tribunal refers to having other information from or about Ms ATP15, being her application form for a visa which identified the same address as that given by the appellant, and customs records that indicate both the appellant and Ms ATP15 arrived in Australia at precisely the same time. 68 A careful reading of the above extract confirms that the Tribunal did not expressly refer to information received from Ms ATP15 by way of her response letter, and also confirms the range of matters relied upon by the Tribunal (such as the fact the appellant did not know the second name of the person with whom she lived). 69 Taking into account the reasons of the Full Court in ATP15 and the similarity in the respective appeals, in my view the appellant has failed to establish any appealable error on the part of the primary judge in rejecting what was ground 1 of the application for review before him.

Ground 6 70 By ground 3 before the primary judge, the appellant contended that she had not been given adequate particulars of the statements Ms ATP15 and the appellant provided in support of their applications for a protection visa which were in a very similar format, and that she and Ms ATP15 had made similar claims to fear harm from the Taliban. The primary judge referred to this as the 'asserted adverse information'. 71 The letter is set out above. The similarities between the letter and that considered in ATP15 are obvious. 72 The primary judge in this matter clearly had regard to the terms of the s 424A letter and the reasons in ATP15. The same argument as to particularity was run by Ms ATP15 as her second ground of appeal before the Full Court and rejected. 73 The Full Court in ATP15 found (at [39]-[40]) that the particulars were sufficient for the purpose of s 424A. Moreover, it found that s 424A was not engaged by the information provided by Ms AUU15 in her response. For s 424A(1)(a) of the Act to be engaged, the material in question must in its terms contain a rejection, denial or undermining of the review applicant's claim. The information provided by Ms AUU15 was largely information about her travel arrangements and living arrangements and was not of a character caught by s 424A(1) (at [42]). 74 The primary judge in this matter also found that the relevant asserted information was not 'information' within the meaning of s 424A. The Tribunal relied on the fact that there was common formatting and similar claims. Taking into account those matters and other evidence (such as the seating arrangements on the plane) it inferred that the travelling plans were orchestrated, and in turn inferred that this reflected poorly on the appellant's credibility. The Tribunal did not rely on the asserted adverse information to affirm the delegate's decision not to grant a protection visa. Both the primary judge and the Full Court in ATP15 referred to the decision of Yates J in Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 [31]: There are two matters to note concerning the information referred to in [21] of the decision record. First, it is not information which contains a rejection, denial or undermining of the first respondent's claims to protection as summarised in [7] above. Put another way, the information was not of 'dispositive relevance' to the Convention claims advanced by the first respondent: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [27]-[29]; SZMDS v Minister for Immigration and Citizenship (2009) 107 ALD 361 at [14]. It was simply information about the first respondent's travel arrangements and travel to Australia and her living arrangements in Australia. Secondly, as the Minister submits, the information itself is "mere inconsistency" or "evidence that [came to be] relied upon to find inconsistency". I reject the first respondent's submissions to the contrary. 75 There is no basis to distinguish the reasoning in ATP15. The primary judge's reasoning was consistent. There is no error disclosed by the primary judge and the ground must be dismissed.

Ground 8 76 Ground 8 alleges a disclosure of confidential information resulting in 'procedural [un]fairness'. At the hearing before me I asked the appellant to elaborate on the information she considered confidential. The appellant considered that her application for a visa was a secret and was concerned that Ms ATP15 had informed her family in Pakistan that she had applied for a visa in Australia. The complaint is therefore that the Tribunal informed Ms ATP15 that the appellant had brought an application for a protection visa. 77 This ground was not advanced below. It raises new factual matters. In any event, the ground does not have sufficient merit to justify a grant of leave. In circumstances where the appellant and Ms ATP15 shared a house and a migration agent and applied for protection on the same day, there is no reasonable foundation for a finding that the alleged confidence was breached. 78 To the contrary, in those circumstances there was a reasonable basis for inferring the information provided by the Tribunal to Ms ATP15 was already known by her. In that sense the information was not confidential. The content of the obligation to accord procedural fairness must be viewed against that backdrop. The Tribunal was obliged to adopt a procedure that was reasonable in the circumstances to afford to the appellant the opportunity to be heard. The disclosure to Ms ATP15 of the fact that the appellant had brought a protection visa application did not deny the appellant the opportunity to propound her case or to deny the Tribunal's assertion that her and Ms APT15's plan to travel to Australia and lodge protection visa applications was planned and orchestrated. I would refuse leave with respect to ground 8.

Ground 9 79 By the particulars to ground 9 the appellant criticises the Tribunal for failing to 'challenge' her evidence and failing to give her 'sufficient opportunity to give evidence or make submission'. This is said to be in the context of the Tribunal's statements that the appellant's evidence neither established that her area of Pakistan was particularly violent, nor established that her brothers and sons would fail to ensure she is able to live safely and securely in Pakistan. It was not for the Tribunal to 'challenge' the appellant. As Gummow and Hayne JJ stated in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]: The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. 80 Further, the Tribunal invited the appellant to attend a hearing. She did so and had the assistance of an interpreter. The appellant was given an opportunity to present evidence and make arguments in relation to the review. The Tribunal's reasons indicate that subjects such as her sons' provision of financial support and their advice as to what she should do whilst she was living in Karachi were raised, as was the issue of family support generally. The reasons also refer to the fact the appellant had provided newspaper reports to the Department, including about violent attacks in Karachi. Ground 9 has no reasonable prospect of success and I would refuse leave.

Ground 10 81 Ground 10 is in the same form as the abandoned ground 4 in the Court below. Again, leave would be required to pursue this ground. No explanation was given as to why the Tribunal asked itself the wrong question or constructively failed to exercise its jurisdiction in its finding that it was not satisfied that there are substantial grounds for believing there is not a real risk the appellant will suffer significant harm as a consequence of being removed to Pakistan. The factual basis of the Convention claim failed. The Tribunal then separately considered the complementary protection claim. Having found that it was not satisfied that there is a real chance that the appellant will suffer harm if she returns to Pakistan for the reasons claimed or any Convention reason, it also found that the appellant does not have a well-founded fear of persecution if she returns to Pakistan. The finding that there was no complementary protection obligation followed naturally from the findings that grounded the rejection of the Convention claim, but the question was addressed separately. Taking into account the lack of any particularity of the ground, it has no prospect of success and I would refuse leave.

Ground 11 82 Absent any proper particulars, it is not possible to discern the complaint alleged by ground 11. The section is in effect recited. It is then said that if information was provided to the appellant by the Tribunal, then the Tribunal failed to advise the appellant that she may seek additional time to comment on the information. The information that the Tribunal gave is not identified. If the complaint is as to the information received by the Tribunal from Ms ATP15, then the issues have been addressed above with respect to grounds 1 to 5. The s 424A letter to the appellant referred to such 'information' and invited the appellant to seek an extension of time for a response if required. The appellant provided a response within time. 83 I would dismiss ground 11.

Conclusion 84 The appeal should be dismissed with costs. As to grounds 8 to 10, leave to appeal is refused. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Migration Act 1958(Cth)ss 424A, 424AA

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Cases Cited (11)