BFF16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The appellant is a citizen of the Islamic Republic of Pakistan. He is a Shia Muslim of Pashtun ethnicity. He comes from the Kurram Agency in the Federally Administered Tribal Areas on Pakistan's North-West Frontier. 2 The appellant arrived in Australia by sea on 22 July 2012. He did not then hold a visa. The circumstances of his arrival were such that, for the purposes of the Migration Act 1958 (Cth) (the Act), he was an "unauthorised maritime arrival". 3 On 14 November 2012, the appellant applied under the Act for that class of visa known as a Protection Visa (visa). That application was refused by a delegate of the Minister for Immigration and Border Protection (Minister) on 14 November 2012. The appellant then sought the review of that decision by the then Refugee Review Tribunal. That tribunal affirmed the visa refusal decision on 3 April 2014. 4 The appellant then applied to the Federal Circuit Court for the judicial review of that tribunal's decision. In that application he was successful. On 29 October 2015, that court set aside that tribunal's decision. By then, the Refugee Review Tribunal's merits review function had been assumed by the Administrative Appeals Tribunal (Tribunal) so the matter was remitted to that tribunal for rehearing. 5 On 29 April 2016, the Tribunal (differently constituted from the Refugee Review Tribunal) decided to affirm the visa refusal decision. Once again, the appellant sought the judicial review of the decision to affirm the refusal of his visa application. On this occasion, he was unsuccessful. On 20 December 2017, the Federal Circuit Court dismissed with costs his judicial review application. 6 The appellant did not file a notice of appeal until 1 February 2018. Though he had been represented by a solicitor before the Federal Circuit Court, he was then acting for himself. Rule 36.03(2) of the Federal Court Rules 2011 (Cth) (Rules) prescribes that a notice of appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. However, in the circumstances of the present case, r 1.61(5) in the Rules was applicable in relation to the calculation of time. That rule provides that, "If the time fixed includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted." Given that qualification, the appellant filed his notice of appeal within time. 7 The only active party respondent to the appeal is the Minister. The Tribunal, quite properly, filed a submitting appearance. 8 On the hearing of the appeal, the appellant came to be represented by counsel (Mr Christopherson and Mr Aleksob) and solicitor (Swan Lawyers). He sought leave to amend his notice of appeal and an adjournment of the hearing of the appeal. The Minister, by his counsel (Ms Campbell, instructed by the Australian Government Solicitor) did not oppose the amendment of the notice of appeal but did oppose the granting of any adjournment. 9 The basis for the Minister's opposing any adjournment was the lapse of time since the making of the order of the Federal Circuit Court under appeal and the subsequent filing of the notice of appeal, as well as the fact that the initial directions in respect of the appeal had been made by a registrar on 12 February 2018 with the appeal being listed on 11 April 2018 for hearing on 11 May 2018. It was submitted that the appellant had had ample time to instruct solicitors and counsel if he chose and to prepare for the hearing of the appeal. 10 It emerged from the affidavit of Ms Judith Swan of Swan Lawyers that the possibility of a retainer or the appellant had first been canvassed with her firm by a migration agent on behalf of the appellant on 27 April 2018. On 3 May 2018, that possibility came to pass. It is apparent from her affidavit that, thereafter, Ms Swan's firm moved with the required but nonetheless commendable dispatch to retain counsel, consider the amendment of the notice of appeal, receive and furnish related advices and deal with the Australian Government Solicitor in relation to the amendment of the notice of appeal and an adjournment. An adjournment was promoted so as better to enable submissions to be made on behalf of the appellant. It had not proved possible in the limited time available for a written outline of submissions on behalf of the appellant to be filed. 11 I was not disposed to grant an adjournment of the hearing of the appeal. The length of time which had elapsed since the appeal was instituted was, even making allowance for the singular difficulties in which a person such as the appellant found himself in obtaining funds so as to retain lawyers (referred to in his affidavit), such that I did not consider that the interests of justice required an adjournment. 12 The interests of justice are not to be equated with the interests of an appellant any more than they are to be equated with the interests of a respondent, in this case the Minister. The Rules are applicable to each of the parties, represented or not, as are the related Appeal Practice Note and the directions to the end of the hearing of the appeal consequentially made by a registrar. No separate practice is applicable to a litigant in person. Of course the Rules and related practice and procedure are the handmaiden of justice, not its master and the predicament a litigant in person may face in compliance, especially one whose first language is not English, is never irrelevant. But it is a serious mistake to conceive that any different practice regime is applicable to cases where a party is not legally represented. An exercise of judicial power requires the affording to a party of a reasonable opportunity to be heard, not that such an opportunity be availed of either adequately or at all. Where an opportunity is in prospect and then offered it behoves any party to be ready to take up that opportunity. Cases to which an asylum seeker is a party are not in any different category in this regard. It is also relevant that the demands on the judicial resources of the Court in the exercise of appellate jurisdiction in relation to such cases have never been greater than they are at present. That is to say nothing of the usual opportunity cost in terms of another appeal from a source within jurisdiction which might otherwise have been listed in place of the one the subject of the adjournment application or one which might otherwise have been listed in its place on any adjourned date if an adjournment were granted. There is always a public interest opportunity cost of this type in relation to the allocation of limited judicial resources for the benefit of all of those with cases before the Court which attends consideration of an adjournment application. Taking into account that opportunity cost, the lapse of time since the institution of the appeal and the issues raised by the amended grounds, I did not consider that an adjournment was warranted. I therefore refused to grant an adjournment. 13 An adjournment having been refused, the appeal was then argued on the merits by reference to the grounds of appeal, as amended by leave. As so amended, the grounds of appeal were: (1) The Tribunal failed to consider evidence relevant to the appellant's employment prospects in his home region in that it failed to consider the evidence of his past experience in not being able to find adequate employment there and having to move elsewhere for employment. (2) The Tribunal failed to consider a claim that arose on the evidence before it being that the appellant would not have been able to find adequate employment in his home region, arising by reason of the evidence that he could not find adequate employment there when he last lived there. (3) The Tribunal failed to draw to the appellant's attention, an issue arising in relation to the review being whether the appellant could obtain adequate employment in his home region. 14 As a general observation, these amended grounds each suffer from the deficiency that they seek to engage not with the reasons for judgement given in respect of the order under appeal, i.e., that of the Federal Circuit Court but rather directly with the reasons of the Tribunal. Neither the grounds of review before nor the responsive reasons for judgement given by the Federal Circuit Court are to be dismissed as of no consequence. The jurisdiction exercised by the Court in matters of this kind is appellate, not original. Necessarily, that means that the primary focus of attention must be whether the order made by the Federal Circuit Court is, having regard to the grounds stated in the notice of appeal, attended with error. The reasons given by the Tribunal are relevant only insofar as they may reveal, either alone or in conjunction with the evidence before the Federal Circuit Court, whether, in dismissing or upholding a particular ground of review, that court's reasons for so doing were attended with an error pleaded in the notice of appeal. 15 Yet another observation which may be made in relation to the grounds of appeal is that they raise issues which were not raised in the grounds of review pleaded in the application made to the Federal Circuit Court. In this context also it is relevant to note that this court's jurisdiction is appellate, not original. Exceptionally, this Court can, by leave, permit the raising on appeal of a point not taken below if the interests of justice so require. One always relevant factor is that the granting of leave to amend occasions no forensic embarrassment to the respondent. Such embarrassment might, for example, be found in the respondent not having been afforded an opportunity to lead evidence in the court below in relation to the newly emerged ground of challenge. Another relevant consideration, not necessarily unrelated to the foregoing, is whether the appellant was legally represented in the court below and made deliberate forensic choices in the conduct of the judicial review proceeding. 16 The forensic choice made by the appellant in the court below is revealed by the reasons of the learned primary judge. The challenge below was on the basis that the Tribunal had looked only to evidence as to fatalities rather than fatalities and injuries when assessing risk to the appellant if he returned to Pakistan. The primary judge considered that there was no foundation for this challenge having regard to the "many references throughout the Tribunal ['s reasons for] decision to injuries sustained within the population". 17 Hardly unfairly, the Minister did not seek the dismissal of the appeal either on the basis of the deficiency in the way in which the amended grounds were pleaded or on the basis that they raised issues not raised in the court below but instead responded to the appeal on their merits and on the basis that the grounds of appeal sought to raise bases upon which the Federal Circuit Court ought to have quashed the Tribunal's decision. I shall deal with them on that same basis. 18 So doing means that it is unnecessary further to consider the reasons for judgement of the learned primary judge because the issues now raised were not raised in the court below. 19 Consideration of the grounds of appeal requires some further elaboration of the basis of the appellant's visa claim and of the reasons which the Tribunal gave for affirming the Minister's delegate's refusal decision. 20 The basis of the appellant's visa claim was summarised by the Tribunal (reasons, para 10) in this way: The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm from the Taliban or other Sunni extremists on return to Kurram Agency on account of Shia religion. It has been submitted that the applicant is at a higher risk than other Shias as he is from the Bangash tribe of the Kurram Agency, a Pashtun Shia tribe. Also because of his association with the Turi tribe. The representative has submitted that the applicant also faces a real chance of persecution on the basis of belonging to a particular social group of 'Shias from Parachinar'. Subject to one qualification, outlined below, the appellant did not submit that this summary misapprehended the basis of the visa claim. 21 The Tribunal found that the appellant was, as he claimed, a member of the Bangash tribe and also associated by marriage with the Turi tribe. On the basis of country information included in the material before it, it found that he would be able to practice his Shia religion on return to Kurram Agency. The Tribunal accepted that there continued to be clashes between militants and security forces and occupational incidents in the Kurram Agency in which civilians had been killed or injured. However, again on the basis of country information, the Tribunal found that, overall, the violence from the Taliban and sectarian violence had decreased in the region, particularly from 2014 onwards. These findings were not, in themselves, suggested on the appeal to have been productive of any jurisdictional error by the Tribunal in its decision. 22 The appellant's evidence before the Tribunal also included a claim that he had to leave Kurram Agency in the past to find work in Rawalpindi and that he supported his family (who remained in the Kurram Agency) by remittances from there. On the basis of country information, the Tribunal found that the significant improvement in the security situation since 2014 in Kurram Agency had resulted in fewer restrictions on the local economy. In its reasons, the Tribunal noted that Kurram Agency was no longer cut off from the rest of Pakistan, and stated (reasons, para 37) that "whilst it may be difficult for the Applicant to obtain employment on return, there is nothing to suggest that he would not be able to secure any employment at all on return to Kurram Agency as claimed". In making that finding, the Tribunal gave weight to advice from the Department of Foreign Affairs and Trade about the Thall-Parachinar road remaining open, with related improved access by both military and civilian vehicles between Rawalpindi and the Kurram Agency. 23 In one way or another, the grounds of appeal asserted that the italicised quote from para 37 of the Tribunal's reasons evidenced a jurisdictional error on the part of the Tribunal which ought to have led to the quashing of the Tribunal's decision. 24 The Tribunal's reasons (para 16) record that, at the hearing it conducted: … [T]he Tribunal asked the applicant if there was a specific reason why he left Pakistan in early 2012. He said he thought one day he would be harmed, whether in Rawalpindi or along the road or at home: that as a Shia it was not safe anywhere. When asked who he fears on return to Kurram Agency now, given that he has not lived there for 13 years, and why the applicant said that if he goes to Parachinar he will have to support his family yet there is no work in Parachinar. Therefore he would have to go 'elsewhere' to support them. He mentioned that around four weeks ago four Shias who crossed into Afghanistan have been kidnapped and no one knows what happened to them. [Emphasis added] 25 The jurisdictional error raised by appeal Grounds 1 and 2 was put in different ways in oral argument for the appellant. 26 One basis upon which it was put was that the appellant's past experience of finding employment in the Kurram Agency was an "integer" of his claim not considered by the Tribunal, indicative of an error of the kind found in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov). This was the qualification in respect of whether the Tribunal had correctly apprehended, in para 10 of its reasons, quoted above, the basis of the visa claim. Ground 2 of the grounds of appeal was focused on the visa claim, rather than the evidence in support of that claim. 27 I do not consider that the Tribunal misapprehended the basis of the visa claim made by the appellant so as not to address one of its integers. In their joint judgement in Dranichnikov Gummow and Callinan JJ stated, at [26], that the first task of the Tribunal was "to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention". It is a given that a failure to do this would necessarily mean that the Tribunal did not discharge its review function in respect of a visa claim decision according to law. The need for the appellant to seek work outside the Kurram Agency was not a feature of the claim which he made for a visa in 2012. Rather, it was later advanced as one reason why, because of the attributes which he advanced in his claim, described by the Tribunal in para 10 of its reasons, he faced a real chance of persecution, notably by the Taliban. The appellant advanced his claim before the Tribunal by submitting that the reality of his chance of persecution on the bases he alleged in his claim was enhanced beyond that present in any event in the Kurram Agency by the security situation in Rawalpindi and along the road transport corridor between the Kurram Agency and Rawalpindi. Hence he introduced before the Tribunal material about the security situation in respect of each of these locales. Material which supports the bases or "integers" of a claim is not to be regarded as a separate basis or integer of a claim. 28 If not an integer of his claim, it was submitted for the appellant that the italicised statement in para 37 of the Tribunal's reasons nonetheless indicated that the Tribunal had ignored relevant material in a way that affected the exercise of its power of reviewing the refusal decision. This was the focus of Ground 1 in the notice of appeal. The appellant commended to me in submissions the discussion of this subject by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT). That discussion is, with respect, a valuable one. 29 As it happens, in the following passage from SZRKT, at [69] is to be found a neat summary of authorities the consideration of which led me to the conclusion found in the last sentence of para 27, above and to the rejection of the submission that the Tribunal had ignored an integer of the appellant's claim: 69. The applicant referred to Aronson and Groves Judicial Review of Administrative Action (now the fifth edition (2013) [4.770] at page 264) referring to the cases drawing a line of sorts where the nub of the complaint was that the decision-maker overlooked or profoundly misunderstood material evidence. That line sought to distinguish between overlooking (or misunderstanding) mere items of evidence on the one hand, and overlooking (or misunderstanding) whole categories of evidence on the other hand. The distinction is sometimes expressed as being between failing to understand some evidence, even if it was important, and failing to understand the claim (or an integer of the claim) for which the evidence was adduced. The learned authors say: "This is a difficult distinction to operate in practice, and not always convincingly drawn, but it does make sense." (footnotes omitted). The authors refer to the reasons in SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]. There Selway J said: 24. A distinction can be drawn between the claim made by the applicant and the applicant's evidence in support of that claim. However, it is not a "bright line" distinction. The distinction between evidence supporting a claim, and the claim itself is often difficult to draw even in the context of a judicial proceeding. It is likely to be very difficult in the context of a Tribunal proceeding which is necessarily attended by considerable informality and where applicants rarely have the advantage of legal assistance. Significant aspects of the claim are likely only to be revealed in the evidence or information put before the Tribunal by the applicant. In such circumstances the difference between the claim itself and the evidence supporting it will often be blurred at least where the relevant factual issue involves an essential step in the applicant satisfying the Tribunal that he or she is a refugee: see Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [79] per Allsop J (with whom Heerey J agreed) and see discussion of the relevant principles by Weinberg J in Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533. 30 The principle upon which Ground 1 is premised is not in doubt. Like Robertson J in SZRKT, at [97], I accept that what flows from Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs, v Yusuf (2001) 206 CLR 323 is that, "merely to ignore 'relevant material' does not establish jurisdictional error". In order to succeed in respect of Ground 1, the appellant needs to demonstrate that not just that the Tribunal did, as submitted, ignore the material particularised in that ground but also that so doing led to a failure by the Tribunal to discharge the review function with which it was entrusted by the Act. 31 The following passage from Applicant WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 75 ALD 630 (WAEE), at [44] - [46], cited by Robertson J in SZRKT, at [102], remains relevant. The observations were made at a time when the Act consigned the review jurisdiction to the Refugee Review Tribunal and before the definition of "refugee" was taken up by s 5H of the Act (with related definitions) but, subject to these qualifications, the references to particular sections of the Act remain pertinent: 44. It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by s 423, s 424, s 425 and s 426 of the Act. 45. In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is: … a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, (s 36(2)(a) read with s 415(1)) The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision. 46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason… [Emphasis added] 32 The sentence emphasised in the passage quoted from WAEE encapsulates the competing contentions of the appellant and the Minister in relation to Ground 1. The appellant's contention was that the Tribunal had ignored the evidence particularised in Ground 1 which, so it was submitted, if accepted, might have established that he had a well-founded fear of persecution. The submissions made by the Minister did not gainsay the principle called in aid by the appellant, only whether that was made out on the facts. Necessarily that requires consideration of the reasons given by the Tribunal. 33 In respect of applications for review, the Tribunal forms part of a continuum of administrative decision-making within the executive branch of government: Jebb v Repatriation Commission (1988) 80 ALR 329 at 289 per Davies J. Its task is to decide whether the decision under review was the correct or preferable decision having regard to the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419 and Smithers J at 438 to 439. In so doing, it is obliged to give reasons: presently materially, s 430 of the Act. 34 These general features of the Tribunal's "core function" of review (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123) are relevant in relation to the fate of Ground 2 in the notice of appeal. The administrative decision-making history in relation to the appellant's claim was a lengthy one, elongated by the need for the reconsideration on the merits of the visa claim refusal decision. While the Tribunal was obliged to approach that task afresh and on the material before it, that did not mean that the issues before it were uninfluenced by what had gone on before in the administrative decision-making continuum. Though the appellant had not put forward in his 2012 visa claim difficulty in obtaining employment in the Kurram Agency and a related need to travel to and obtain work in Rawalpindi had formed part of the material which he introduced when the matter was before the Refugee Review Tribunal. The subject was one introduced into the continuum of administrative decision-making by him, not by the Tribunal. He had introduced the subject in support of why it was, having regard to the bases of his claim, that he faced a real chance of persecution (and worse). 35 As the Tribunal faithfully recorded in its reasons (at para 16, quoted above) in respect of the second review, an assertion of impossibility of obtaining employment in the Kurram Agency remained a feature of why he alleged that he had a well-founded fear of persecution. This was expressly addressed by the Tribunal in its reasons. When the particular passage relied upon by the appellant from para 37 of the Tribunal's reasons is, as it must be, read in context, my view is that no error of the kind pleaded in Ground 1 is revealed. This is made apparent by setting out in full paras 36 and 37 of the Tribunal's reasons: 36. The Tribunal has considered the applicant's claim that he had to leave Kurram Agency in the past to find work in Rawalpindi and supported his family from there. Also his claim that currently none of his family members work given the poor economic conditions in Kurram Agency and that he supports them from Australia and that if he goes to Parachinar he will have to support his family but as there is no work in Parachinar he would have to go elsewhere to find work to support them. The representative has submitted that there is more than remote chance that the applicant would be seriously harmed by the TTP or others as a Shia Muslim should he travel to and from Kurram Agency, referring to the DFAT Thematic report assessment that travel in parts of Pakistan can be dangerous for all Pakistanis, regardless of sectarian, religious and ethnic affiliations and that travellers in remote areas are at greater risk of criminal or militant violence because they are further away from security forces, noting that many roads in FATA (among others) fits this profile. The representative submitted that the applicant's fear of harm is significantly heightened as a member of a particular social group of Shias from Parachinar due to his need to travel between Kurram Agency and Rawalpindi as a member of this particular social group. 37. The Tribunal accepts that the applicant moved from Kurram Agency to Rawalpindi in 2003 for employment and that he continued to work there until his departure from Pakistan in 2012. However it notes that this took place in large part during the conflict, which worsened from 2007 resulting in the closure (periodically) of the main road from Parachinar to the rest of Pakistan and other security-related restrictions on the movement of goods and services in and out of the region, which adversely affected the local economy. However, as discussed above (and at the hearing) the security situation has improved significantly since 2014 in Kurram Agency and there are fewer restrictions on the local economy as a result. The Tribunal notes in this regard DFAT;s advice as referred to earlier that the Thal-Parachinar road remains open, that federal security forces continue to maintain armed checkpoints along the road (which is used by both civilian and military vehicles) and there have been no major security incidents on the road in 2015. This indicates to the Tribunal that Kurram Agency is no longer cut off from the rest of Pakistan and whilst it may be difficult for the applicant to obtain employment on return, there is nothing to suggest that he would not be able to secure any employment at all on return to Kurram Agency as claimed. The applicant refuted DFAT's findings about the Thal-Parachinar road at hearing, noting that he has witnessed 'these things' on the road; that extremists groups will just fire upon people using the roads; that the government does not actually chase them (that is the TTP and all extremists, including Islamic States (IS)); and the international media does not cover incidents on the road. He also said a car was shot at recently only half a kilometre away from the security checkpoint, recounted to him by a family member told him over the phone. The Tribunal does not agree that the international medical does not cover incidents along the road. The Tribunal has had regard to the applicant's concerns, but has given weight to DFAT's advice about that the road remains open and there is improved access by both military and civilian vehicles. [sic] 36 The function of fact finding in relation to whether it was satisfied that the visa criteria in either s 36(2)(a) or 36(2)(aa) of the Act was met was one consigned by the Act to the Tribunal. In discharging that function, the Tribunal was not obliged to accept uncritically either the evidence given or the submissions made by or on behalf of the appellant. The following summary of principles by Flick J in SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [24] recently commended itself to Allsop CJ in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859, as, with respect, it does to me: 24. … The task of fact finding has long been accepted as a task entrusted to the Tribunal: Osland v Secretary, Department of Justice (No 2) [2010] HCA 24 at [19], (2010) 241 CLR 320 at 332 per French CJ, Gummow and Bell JJ; Repatriation Commission v O'Brien (1985) 155 CLR 423 at 430 per Gibbs CJ, Wilson and Dawson JJ. So, too, has it been long-accepted, that findings as to credibility are the function of the primary decision-maker "par excellence": Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J. To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 [2016] FCAFC 146, (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J. 37 What is disclosed in paras 36 and 37 of the Tribunal's reasons is not an ignoring of the appellant's evidence about the employment situation but a critical evaluation of that evidence. The Tribunal makes the point, well open on the material before it, that the appellant's experience in relation to employment prospects was dated and arose at a time when the security situation was, on the material before it which it permissibly preferred to accept, much worse than the time when the Tribunal came to make its decision. 38 The appellant was not subject to any formal onus of proof in relation to the review which he had sought. Absent, as here, some formal statutory prescription in relation to onus of proof in some types of reviews (see, notably, in relation to the Tribunal, s 14ZZK of the Taxation Administration Act 1953 (Cth)), even to conceive of an "onus of proof" in relation to a review proceeding in the Tribunal is uncritically to borrow "from the universe of discourse which has civil litigation as its subject": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282. It was in his interest to introduce such material as he could to support his claim and thereby to engender the requisite "satisfaction" on the part of the Tribunal. He did introduce some material about the current security situation, which the Tribunal evaluated along with DFAT and other country information. But, apart from his own assertion, he did not provide any material about the current employment situation in the Kurram Agency. It was not up to the Tribunal to make his case for him, rather to conduct an independent review of the merits of the decision of the Minister's delegate in relation to his claim. That there was "nothing to suggest that he would not be able to secure any employment at all on return to Kurram Agency as claimed" was just a logically reasoned conclusion reasonably open on the material which the Tribunal did have before it as to the current situation in the Kurram Agency and with respect to the access route to it. 39 For these reasons, Ground 1 is without merit. 40 The reasons given for dismissing Ground 1 also go to why it is that Ground 3 has no merit. It was common ground, and correctly, that the Tribunal was obliged, by s 425 of the Act, to offer and, if the offer were taken up, afford the appellant a meaningful hearing in respect of his review application prior to making its decision. Not to do this would indeed, as the appellant submitted, constitute a jurisdictional error. 41 But, as the Minister submitted, the Tribunal did afford the appellant a meaningful hearing. At that hearing, the appellant had the benefit of being represented by a migration agent. As already mentioned, the subject of the employment situation in the Kurram Agency was one which he had introduced. That apart, any generic information about that subject, and the Tribunal had some generis country information on the subject, referred to in para 37 of its reasons, was not "information" of the kind which gave rise to any obligation on the part of the Tribunal to put that to the appellant so as to conform with s 424A of the Act (and it is only fair to record that the appellant did not put his case on the basis of a transgression of s 424A). As it happened, and as also recited in para 37 of the Tribunal's reasons, the Tribunal did discuss with the appellant and his agent at the hearing the information it had to the effect that "the security situation has improved significantly since 2014 in Kurram Agency and there are fewer restrictions on the local economy as a result". That this might affect an evaluation of the appellant's assertion about the impossibility of employment and have consequential ramifications in relation to an evaluation of the risk he would face if returned to Pakistan and in the foreseeable future there was obvious. Whatever might have been the position in relation to compliance with s 425 had the Tribunal not raised the subject of the current security situation and related, resultant fewer restrictions on the local economy, that the Tribunal did so is hardly indicative of a failure to afford the appellant a meaningful hearing, rather the reverse. 42 For these reasons, Ground 3 is without merit. 43 It necessarily follows that the appeal must be dismissed, with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.