BMD20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1059

1. The dispositive issue before the Tribunal was whether the ground for the cancellation of the applicant's visa under s 109(1) of the Act was made out, and if so, whether the visa should be cancelled.
2. At [7], the Tribunal noted that the exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the applicant under s 107 of the Act, providing particulars of the alleged non-compliance. At [8], the Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
3. At [9]-[24], the Tribunal set out the background of the matter and detailed the answers given by the applicant in his application for the visa, more specifically Form 866 Application for a protection (Class XA) visa.
4. At [26], The Tribunal noted that whilst the applicant consistently stated that his family name was 'X', the information before the department and according to his Iraqi identity documents indicated that this was not the case.
5. At [28], the Tribunal noted that the applicant's father's name as stated in the Identity interview differs to that provided at the Protection visa processing stage.
6. The Tribunal noted that it was put to the applicant that an image, on his social media account, depicts him at the Imam Al Abbas Shrine/Mosque in Kerbala in 2007 [29]. The Tribunal noted that the holy site is known as a Shi'a holy site referred to as the 'Al Abbas Mosque'. Whilst the applicant initially claimed he had never been to any such named mosque or location, when shown the image he acknowledged it was him in the photo and that it is a Shi'a holy site [30]. The applicant stated that he went to the 'shrine' on a pilgrimage to Kerbala, that he had no issues accessing or attending and praying at such a prominent Shi'a location and that he did not actually pray inside the tomb [30].
7. At [32], the Tribunal noted that the applicant's father's social media profile revealed that the applicant's father subscribes to the Shi'a faith and not Sunni faith. Whilst it was put to the applicant that these images indicate his father is Shi'a and not Sunni as claimed, the applicant denied this stating all his family including paternal uncles are Sunni.
8. Based on this information, it appeared to the Tribunal that that the applicant and members of his extended family including his father, are Shi'a and not Sunni as claimed at the time of the visa application [39]. Further, the name the applicant provided on entry to Australia and as part of his Protection visa application also did not appear to be his correct name. The Tribunal noted that these discrepancies raised doubts as to the applicant's identity.
9. The applicant was advised about the presence of a s 438 certificate and that it covered internal Departmental correspondence, including some that related to accusations against him [41].
10. The applicant brought two witnesses to the hearing before the Tribunal to give evidence concerning the applicant's religion. The first witness was Dr NI. The Tribunal summarised its discussion at the hearing with Dr NI at [72]-[75]. The second witness was Sheikh KS. The Tribunal summarised its discussion at the hearing with Sheikh KS at [76]-[77].
11. The Tribunal, in its findings at [93], dealt with the evidence of the two witnesses as follows:
    • I have also taken into account the evidence of two witnesses who attest to his attendance at their mosques while in Australia and the fact based on their observations and interaction that he is a Sunni Muslim. While I accept that they gave what they believed was true testimony, there is much about the individual that they do not know. Neither of them (for natural reasons) had tried to contact anyone in Iraq (such as the waqf) to verify his religious identity and neither of them were aware that he had allegedly had a child to a woman out of wedlock. This does not indicate a very deep knowledge of the applicant's true background. Therefore I am not satisfied that their characterization of him as a Sunni Muslim is well-founded.
12. At [45]-[46] and [48]-[51], the Tribunal discussed the question of the applicant's real name at hearing. At [93], the Tribunal made findings as follows:
    • As part of the protection visa application, the applicant gave his name as H T al-F and did not answer whether he was known by any other name. His Iraqi documents indicated that his name was H T Z and he claimed that K was in his father's documents. He also claimed that al-G al-F was also part of the family name but al-F was better known and this was used. He claimed that he had never called himself H T al-F but that the interpreter may have done this.
    • While I acknowledge that the use of Arabic family names in a Western context can be difficult to render accurately, that is one of the reasons why the option of including other names that they may be referred to by is included ... I am satisfied that by failing to include a range of other names by which he was or could be known he did give false information to the questions relating to names by which he is known.
13. A critical issue before the Tribunal was whether the applicant and his family members were Sunni or Shi'a. At [57-59], the Tribunal put to the applicant that there was evidence which suggested that the applicant's family members were Shi'a. Of particular concern was a Facebook profile which appeared to show the applicant's father standing outside various Shi'a mosques and shrines and shows Shi'a iconography and Shi'a militia symbols [59]. His father's profile also had links to the applicant's cousins Facebook profile who also appeared to be standing outside various Shi'a mosques and shrines and shows Shi'a iconography and Shi'a militia symbols [59]. The Tribunal noted at [60], that the totality of all of this would indicate a close relationship with Shi'ism.
14. At [66], the Tribunal asked the applicant why his father, as a Sunni, would have social media links with very observant Shi'as. The applicant claimed that his father did not read or write, and that his father did not create this account and stated that it was created by someone else.
15. At [67]-[70] the Tribunal summarised the applicant's explanation on the issue of his father's social media site.
16. Whilst the Tribunal acknowledged at [90], that the applicant had provided evidence in relation to his attendance at Sunni mosques and that the applicant's uncle worked as a security guard for the Sunni endowment in Dhi Qar, ultimately at [93], the Tribunal dealt which such evidence as follows:
    • I have taken into account the evidence that has been presented in support of the claim that the applicant is a Sunni but lend it little weight relative to the evidence above indicating that the applicant is a Shi'a. I do not accept that he [the applicant's uncle] worked for the Sunni endowment (waqf) in Dhi Qar. This relies on his oral testimony which I have found lacks credibility and a photocopied document which he claims is evidence of his [uncle's] employment there as a guard. Country information indicates that fraudulent documents are commonly and cheaply available in Iraq, therefore a photocopied document of the type he has submitted carries little weight.
17. As to the issue of the applicant's father's Facebook profile, further at [93], the Tribunal stated the following:
    • I am satisfied given the weight of evidence that the applicant is and always has been a Shi'a Muslim. The social media account of his father links the father to the Shi'a faith through his mourning of Imam Hussein; the liking of pieces of distinctly Shi'a iconography and links to other individuals whose electronic footprint indicate that they have a close affinity with the Shi'a faith and contain images and writings that would not be on the social media pages of a Sunni.
    • I do not accept that his father could not read or write and that someone had nefariously created a Facebook site for him.
18. The applicant had also provided the Tribunal with evidence that his mother and siblings applied for and obtained protection visas in Greece on the basis that they were Sunni who experienced persecution on grounds of being Sunni. The Tribunal dealt with this aspect of the applicant's evidence as follows at [93]:
    • I accept that some of the applicant's family have sought and been granted asylum in Greece and have also claimed to be Sunnis wanted by the Badr Corps. I also note that this claim post-dates the concerns raised by the Australian government regarding the applicant's true religious identity and it is reasonable to believe the family would have known this...Because of the absence of his brother's or father's refugee claim documentation and the timing of the other family members' refugee claims in Greece, I lend their claims made in Greece little weight in determining whether they are supportive of the applicant's original claim.
19. The Tribunal also made general adverse credibility finding against the applicant such as that at [91], where the Tribunal stated:

Overall I found the applicant to lack credibility as a witness and that he has variously fabricated his religious identity, the alleged construction of a fake Facebook site in his father's name and a range of other claims. Along with the implausibility and inconsistency of other aspects of his claims, I did not find him to be a reliable, credible or truthful witness.

1. At [94], the Tribunal was satisfied that the applicant was not truthful about the names by which he is known, or about his religious identity. The Tribunal found that the applicant is a Shi'a and not Sunni. He is not, nor has he or his family ever been of interest to the Shi'a militias, particularly the Badr Corps. For those reasons the Tribunal found at [95], that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.
2. As the Tribunal had concluded that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it was necessary to consider whether the visa should be cancelled pursuant to s 109(1) [96].
3. In exercising this power, the Tribunal noted at [97], that it must consider the applicant's response to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c).
4. The Tribunal gave significant weight to the fact that the applicant has provided incorrect information when he applied for a protection visa [98].
5. The Tribunal found that the decision to grant the applicant a protection visa was wholly or partly based on the incorrect information that the applicant provided in the application for a protection visa [101].
6. At [119], the Tribunal affirmed the decision to cancel the applicant's visa.

1. The applicant's seven grounds of judicial review are contained in an Amended Application filed with the Court on 30 November 2020. The grounds are as follows (less particulars):
   1. The applicant brought two witnesses to the hearing before the Tribunal to give evidence concerning the applicant's religion. Both witnesses had observed the applicant pray at a Sunni mosque in a Sunni manner over many years. The Tribunal, in its findings at [93] of its decision dated 11March 2020, dealt with, and discounted to the point of giving no weight to, the evidence of the two witnesses. The Tribunal's reasoning process involves jurisdictional error.
   2. The Tribunal was concerned as to whether the applicant provided his correct family name in his protection visa application. The Tribunal found at [93]-[94] that the applicant "did give false information" and "was not truthful" in relation to the provision of a name in his protection visa application. There was no proper basis for the Tribunal to make these findings. This was a jurisdictional error.
   3. The applicant, to help prove he was Sunni, provided documentary evidence that his uncle worked as a security guard for the Sunni endowment fund in Dhi Qar, being a letter from the Dhi Qar Sunni Endowment dated 14 May 2008 at CB 101-102. The Tribunal rejected the letter which was a critical document, as fabricated without putting the applicant on notice of its concerns. This was a denial of procedural fairness and jurisdictional error.
   4. The applicant provided documentary evidence that he attended a Sunni mosque in Iraq before he departed for Australia, being a letter from Dhi Qar Sunni Religious Endowment at CB 97-98. The Tribunal fell into jurisdictional error in dealing with the letter.
   5. The applicant gave evidence that his mother and some siblings applied for and obtained protection visas in Greece on the basis that they were Sunnis who experienced persecution on grounds of being Sunni. The Tribunal at [93] placed "little weight" on the evidence. The reasoning process by which the Tribunal placed little weight on the claims made by these family members in Greece involved jurisdictional error.
   6. A reason the Tribunal found that the applicant was Shi'a arose from his father's social media page. The Tribunal at [93] drew adverse inferences against the applicant's father and the applicant based on information on the father's social media page. The manner in which the Tribunal drew adverse inferences involves jurisdictional error.
   7. The Tribunal significantly discounted the evidence that the applicant's mother and siblings made Sunni-based claims for protection in Greece because, by the time they made the claims, the applicant had received the notice of intention to cancel his visa and therefore the family knew the Department had put in issue whether the applicant was Sunni. Yet the applicant provided evidence to the Tribunal from two suitably qualified witnesses that they had observed the applicant praying in the Sunni way on many occasions before the applicant received the notice of intention to cancel his visa. But the Tribunal placed no positive weight on the evidence given that it concerned a• period of time before the applicant received the notice of intention to cancel his visa. Thus, there was an inconsistent and contradictory application by the Tribunal of the different weight which may be given to evidence depending on whether the evidence concerned a period of time before, or alternatively after, the applicant received a notice of intention to consider cancelling a visa. The inconsistent and contradictory approach by the Tribunal involved jurisdictional error.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:

... An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. In ground one the applicant alleges legal unreasonableness in that the Tribunal engaged in illogical and irrational reasoning in rejecting the evidence of two witnesses who attested that the applicant practiced as a Sunni Muslim.
2. The Tribunal's reasoning process at [93], involves jurisdictional error as the Tribunal discounted (to the point of giving no weight to) the opinion of each witness for the following reasons:

(a) "there is much about the [applicant] that they do not know";

(b) neither witnesses had contacted anyone in Iraq to verify the applicant's religious identity;

(c) neither witness was aware that the applicant had a child to a woman out of wedlock.

1. These three reasons or matters are irrelevant to the validity of the conclusions of the two witnesses.
2. In relation to the matter in paragraph 45(a), the fact that the witnesses did not know many things about the applicant is, at this level of generality, irrelevant to whether the applicant was Sunni or Shi'a. Most expert witnesses do not have a personal relationship with and a large degree of knowledge about persons about whom they express expert opinions.
3. In relation to the matter in paragraph 45(b), the fact that neither witness had tried to contact anyone in Iraq to verify his religious identity does not undermine in any way the reliability of the opinion expressed by the witnesses. The witnesses observed the applicant pray for 10 years in the Sunni way in Australia. The fact that they did not make enquiries in Iraq about the applicant is irrelevant to the reliability of their opinions based on their observations over 10 years.
4. In relation to the matter in paragraph 45(c), the fact that neither witness was aware that the applicant had allegedly had a child to a woman out of wedlock is irrelevant to whether the applicant was Sunni or Shi'a. This information may be relevant to the degree of the applicant's religious observance, but not to whether he was Sunni or Shi'a.
5. Where a decision-maker makes a finding based on an irrational or illogical reasoning process, this may be a jurisdictional error. A reasoning process may be irrational or illogical in a manner involving jurisdictional error:
   • "if the decision to which the decision-maker came was simply not open on the evidence": Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ("SZMDS") at [135];
   • "if there is no logical connection between the evidence and the inferences or conclusions drawn": SZMDS at [135];
   • if there is no "rational or probative evidence to support" the finding, or the finding is "made without any probative foundation" or "without any material to found" it; Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 ("Hands") at [44]-[47]; DAO v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 ("DAO") at [30(2)]; AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [31];
   • if the finding of fact is "simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support [the finding] and all evidence to the contrary to a reasonable decision-maker": Hands at [45];
   • if the finding of fact lacks an evident and intelligible justification: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [48]; Singh v Minister for Home Affairs [2019] FCAFC 3 ("Singh") at [61];
   • if there was no evidence to support a necessary step or element for the finding of fact: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 ("FSG17") at [61]-[63];
   • if the finding of fact is not "based upon facts having logical and probative weight": CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 ("CQG15") at [41].
6. The finding the subject of the irrational or illogical reasoning process need not be the ultimate finding. Instead, a decision will be infected by jurisdictional error if a finding of fact, which may be:
   • a finding of fact "along the way to reaching a conclusion by the decision-maker": DAO16 [30(4)]; SMZDS (at [132]); or
   • a factual matter on which the decision-maker relied in reaching a conclusion: FSG17 at [63]); or
   • a finding of fact on which the decision-maker's "determination is based" (WAIJ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 74 at [22]; or
   • a "central" matter: Hands [45]-[47].
7. The Tribunal's reasoning process which led to the Tribunal concluding that the witness's opinion was not "well-founded" is irrational in a manner which involves jurisdictional error.
8. Alternatively, the Tribunal failed to give proper and genuine consideration to the evidence of the two witnesses: Singh at [30], [36]-[37].

1. The first respondent submits that ground one, when read with the applicant's submissions, claims the Tribunal's treatment of the applicant's witnesses' evidence was legally unreasonable. This requires a high threshold, such that reasonable minds could not differ concerning the Tribunal's reasoning: SZMDS at [78], [130-131]. The Tribunal summarised the witnesses' evidence at [72]-[78] and makes findings concerning that evidence at [93] tenth dot point (CB 433-434). The Tribunal accepted the witnesses evidence as truthfully given, but noted that the witnesses did not appear to know the applicant well, which was plainly open, given they thought he was married when he was not. Otherwise, the Tribunal did not accept their characterisation of the applicant as Sunni, implicitly because of the substantial other evidence indicating he was really a Shi'a, and the Tribunal's reasons must be read accordingly: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 ('SZJSS') at [33]. The Tribunal's preference for this other evidence does not indicate legal unreasonableness: SZJSS at [35].
2. The Tribunal found that the witnesses were honest but mistaken in their beliefs about the applicant, which is a conclusion that was open given the substantial other evidence that he was in fact a Shi'a and so it is not legally unreasonable within SZMDS. To the extent, if any, that the ground complains of the weight given to the witnesses' evidence, this was a matter for the Tribunal: SZJSS at [33].

1. Ground one is a claim of irrational or illogical reasoning in relation to the treatment of the two lay witnesses' evidence. In SZMDS the Court concluded at [131] that it was insufficient the different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:

... Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.

1. Further, the Tribunal's reasons should not be read with an eye finely attuned to error. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:

The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.

1. The conclusion that the witnesses' evidence, while truthful, was not conclusive of the applicant's adherence to the Sunni faith needs to be read as part of the whole of the consideration of the evidence and not in isolation from it. The impugned paragraph was but one of 16 dot points set out at [93], that led to the ultimate conclusion by the Tribunal that the applicant had not been truthful about his names and his Shi'a faith. The witnesses evidence was not determinative of the conclusion reached by the Tribunal.
2. The Court is satisfied the Tribunal was entitled to consider the lay witnesses' evidence and discount it, based on the fact their knowledge was limited to the manner in which the applicant prayed, and was not accompanied by a deeper knowledge of the applicant or his personal circumstances. The reasoning does not reach the high threshold for illogical or irrational when viewed as part of the mosaic of the entirety of the evidence.
3. The Court does not accept that the Tribunal did not give proper and genuine consideration to the evidence of the two lay witnesses. The Tribunal's reasoning process sets out the evidence in some detail and then gives detailed reasons for the conclusions reached. The Court is not satisfied that the Tribunal failed to give the lay witness' evidence proper and genuine consideration.
4. Even if the Court is wrong, in this regard, the Court is not satisfied that the error, as outlined by the applicant is material, as the Court satisfied the ultimate factual conclusions would still have been arrived at absent the error. Ground one has no merit.

1. Ground two is a complaint that there was no proper basis for the Tribunal to find that the applicant "did give false information to the questions relating to names by which he is known" or "was not truthful about the names by which he is known". Where an applicant is known by two names, the fact that the applicant records one name, and not both, in response to the question "What is your full name?" does not involve "giving false information" or an answer which is "not truthful". Similarly, the fact that the applicant did not answer the question "What other names have you been known by?" does not involve "giving false information" or an answer which is "not truthful".
2. The applicant submitted that where a decision-maker makes a finding and there is no proper basis for the finding, this may be a jurisdictional error.

1. Ground two claims the Tribunal's finding that the applicant gave false information relating to his name was legally unreasonable. The Tribunal concluded that the applicant was known by another name as well as the name he gave on his visa application, and that he should have given both. Given, as the Tribunal points out, the application form specifically asks what other names the applicant has been known by, it cannot be said that the Tribunal's reasoning is legally unreasonable within the principles in SZMDS. Reasonable minds could differ about the Tribunal's conclusion that the applicant gave false information by omission. In any case this is a relatively minor matter compared to the applicant's false claim to be a Sunni and to fear harm for this reason and could not by itself support a conclusion that the Tribunal's ultimate decision was legally unreasonable: Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 2 ("Mailau") at [74]-[75].

1. This is a claim of legal unreasonableness. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225 ("Li") at [28], or where a decision has been made that lacks an "evident and intelligible justification": Li at [76]. The test for unreasonableness is "stringent" and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
2. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

1. The form filled in by the applicant specifically made provision for additional names the applicant was known by to be set out. As noted in the Tribunal hearing transcript at page 7-8, the applicant had an opportunity at interview to provide additional names he was known by, but did not answer. This implies false information by omission.
2. The applicant's explanation to the Tribunal member in response to a question as to why he chose not to provide additional information as to his names can be said at best to be convoluted, even taking into account different naming conventions in the society where the applicant comes from.
3. The Court is not satisfied the conclusion of the Tribunal at [93], meets the stringent test for legal unreasonableness. The reasoning in [93], is logical and provides a rational basis for the conclusion reached. This ground has no merit.

1. Ground three is a complaint that the Tribunal had rejected the Sunni Endowment Office Letter ("Endowment Letter"), which is a critical document, as fabricated without putting the applicant on notice of its concern.
2. In WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131FCR 511("WACO") an applicant provided documents to a tribunal after a hearing. The Tribunal rejected the documents as not genuine in its decision without giving the applicant an opportunity to comment on the tribunal's concerns.
3. In the present matter, the question whether the Endowment Letter was genuine, as in WACO at [42], "was a matter which went directly to the most critical issue in the case", namely whether the applicant was Sunni. In the present case, as in WACO at [53], "fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it".
4. A review of the transcript of the hearing indicates that the applicant was not given this opportunity. As such, on the basis of the principle explained in WACO, the applicant in the present matter was denied procedural fairness.
5. The applicant further relies on the reasoning in BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1146, where the appellant tendered letters which contained a police stamp to corroborate his claim of persecution. The Tribunal placed "little weight" on those letters in light of independent information which had regard for the high volume of fraudulent letters in Pakistan and the ease with which an official stamp could be procured. Justice McEvoy said the following at [25]:

The Tribunal's failure to put the appellants on notice of its conclusion that the reports the father maintained he had made to police were fraudulent so as to enable a response to be made to this was a breach of the Tribunal's statutory obligation pursuant to s 425 of the Act to provide procedural fairness to the appellants.

1. The Tribunal's error was material. If the Tribunal had put its concerns to the applicant, the applicant may have obtained evidence to prove that the documents were genuine.

1. The applicant complains that the Tribunal concluded that the document at CB 101-102, claiming that the applicant's uncle worked as a guard at a Sunni endowment in Iraq, was fabricated without notice to the applicant. It was submitted that the Tribunal does not find that the document was fabricated but simply gives it little weight ([93]; CB 433). Further there is no general rule that the Tribunal must always give prior notice of a finding of fabrication, and whether there has been a breach of procedural fairness by not doing so depends on the procedures adopted, including whether the Tribunal has sufficiently alerted the Tribunal to its doubts about the genuineness of documents submitted: Minister for Immigration and Border Protection v Ly [2018] FCAFC 123 at [51].
2. In the present case the applicant must have been well aware that his claim to be a Sunni was very much in issue before the Tribunal, as its decision concerned whether he had provided false information as found by the delegate, and thus that any evidence he put forward to support this claim would not necessarily be accepted. The Tribunal did not have to give the applicant a further opportunity to comment on its findings: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 ("SZBEL") at [47].

1. First, the Court is not satisfied that the Tribunal found the Endowment letter was fabricated. Rather, as acknowledged by the applicant, the Tribunal simply gave the letter little weight. In coming to this conclusion, the Tribunal noted that country information indicated that fraudulent documents were commonly and cheaply available in Iraq.
2. Given there was no positive finding that the document was fraudulent, there was no obligation to invite comment. Rather, the Tribunal simply gave the document little weight. In so doing, the Tribunal also rejected the applicant's oral testimony which it found lacked credibility.
3. The Court is satisfied that the applicant was well aware of what the issues in his matter were and the issue of false information was plainly the issue for the Tribunal to decide. Notwithstanding the commentary in WACO and BHY17 at [25], the Court is not satisfied this was an issue that required the Tribunal to give the applicant a further opportunity to comment on its findings. As noted by the High Court in SZBEL at [48]:

Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:

"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

1. Even if the Court is wrong in this conclusion, the Court is not satisfied any error was material, in that the matter did not impact on the ultimate conclusion arrived at by the Tribunal. This issue was not dispositive of the matter.

1. Ground four is a complaint that the Tribunal failed to address documentary evidence (Sunni Mosque Attendance Letter ("Attendance Letter")) provided by the applicant which confirmed that the applicant attended a Sunni mosque in Iraq before he departed for Australia. The document (copy in Arabic at CB 98 and English translation at CB 97), was on its face from the Di Qar Sunni Religious Endowment.
2. First, on a fair reading of the relevant paragraph (second last dot point on page 15 of the decision record), the Tribunal did not in fact deal with the Attendance Letter. A decision-maker's failure to deal with evidence of significance before it is a jurisdictional error: WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 at [21].
3. Second, if the Court considers that the Tribunal dealt with the Sunni Mosque Attendance Letter in the sentence concerning fraudulent documents, the Court made the same error as in relation to the Sunni Endowment Office Letter, the subject of ground 3 above.
4. Third, if the Court considers that the first sentence of the relevant paragraph indicates that the Tribunal had regard to the Sunni Mosque Attendance Letter, the fact that the Tribunal did not explain the problem with the evidence supports a conclusion that the Tribunal did not give proper and genuine consideration to the evidence.
5. Reliance was placed on the case of Singh and NAJT v Minister for Immigration and Multicultural Affairs [2005] 47 FCR 51 in regard to a decision-maker's obligation to give proper and genuine consideration to evidence.

1. The applicant claims the Tribunal did not address the Attendance Letter. Given the Attendance Letter is mentioned at [90], the Tribunal must be taken to be intending to refer to it at [93], and on a fair reading gives it little weight given its other concerns that the applicant is Shi'a. The Attendance Letter is just a brief "to whom it may concern" letter. The Tribunal's approach was sufficient given the nature of the document: SZJSS at [35-36].

1. The Court does not accept that the Tribunal failed to give proper and genuine consideration to the letter. It is plainly mentioned at [90], and the applicant advised that the Tribunal would 'give weight to them'. There is no requirement for the Tribunal to later address each and every piece of information in its reasons. Further, for the same reasons as set out above in Ground Three, the Court is not satisfied there was a jurisdictional error of failing to seek comment on the finding the document was fraudulent. No such explicit finding was made. The proper approach to such a claim was summarised by Reeves, O'Callaghan and Thawley JJ in Singh at [37]:

In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48].

1. Clearly the Tribunal was aware of the Attendance Letter, given it made reference to it at [90]. The Tribunal found the applicant's oral evidence to lack credibility. It is perhaps unsurprising then that the Attendance Letter was not mentioned specifically when the Tribunal made mention that false documents are readily available in Iraq. There is a lack of clear evidence that the Attendance Letter was not considered and engaged with.
2. The Court is satisfied the document was taken into account and given genuine intellectual engagement, noting that a finding it was not 'will not be lightly made'. The applicant's evidence that he was Sunni not Shi'a was clearly rejected by the Tribunal for the multiplicity of reasons it gave. This ground has no merit.

1. Ground five is a complaint that the reasoning process by which the Tribunal placed "little weight" on the claims of the applicant's family members who applied for protection in Greece involved jurisdictional error.
2. It was submitted that the Tribunal has reasoned that, because the family members in Greece would have known at the time they applied for asylum in Greece that the Department in Australia was considering cancelling the applicant's visa based on a belief that he was Shi'a ("the Premise"), therefore the protection claims by the family members in Greece, including that they were all Sunni and experienced threats of harm from a Shi'a militia group because they were Sunni, must be given "little weight" in determining whether the applicant is Sunni ("the Conclusion"). The conclusion does not follow from the Premise. The reasoning process is illogical or irrational, with the first respondent placing reliance to the cases previously outlined.
3. A gap in the Tribunal's reasoning process concerns the question of whether each of the six family members made up their protection claims in Greece to be Sunni in order to support the applicant's claims in Australia that he was Sunni. If the family members made up their claims, this would explain why the Tribunal gave the claims "little weight". Some observations concerning this gap in the Tribunal's reasoning process are as follows.
4. Firstly, if part of the Tribunal's reasoning process (albeit unstated by the Tribunal) was that each of the six family members made up their protection claims to be Sunni. This unstated aspect of the Tribunal's reasoning process:

(a) would require each of the five family members to commit perjury by giving false evidence under oath to the Greek authorities;

(b) would require the five family members to have colluded together to make up their claims so that they provided a consistent story to the Greek authorities;

(c) would require the five family members to take the significant risk (which the author assesses as a likelihood) that the falsity of the claims would be discovered by the decision-makers in Greece who assess asylum claims after conducting face-to-face interviews;

(d) if the five family members had genuine protection visa claims based on being Shi'a, would require each of the five family members to give up their genuine claims and take the significant risk of advancing fabricated claims;

(e) if the five family members had no protection visa claims in the first place, would require the five family members to have uprooted themselves from their safe and comfortable lives in Iraq and travelled to Greece where they would be required to live in a refugee camp for a long period of time in order to lodge false claims for protection in order to support the applicant's claims to be Sunni.

1. Such a reasoning process, in the absence of evidence, would be absurd.
2. Secondly, if each of the six family members made up their protection claims to be Sunni in order to support the applicant's claims to be Sunni, this would concern a "material question of fact" within the meaning of s 430(1)(c) of Act. The fact that the Tribunal did not make this finding supports a conclusion that the Tribunal did not intend to make this finding: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]; Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 330 ALR 617 at [100]- [106] and [121]-[123].
3. Thirdly, if the Court were to agree that the Tribunal did not find, expressly or implicitly, that the six family members made up their protection claims to be Sunni, then this confirms the gap in the Tribunal's reasoning process.

1. This ground claims that the Tribunal giving little weight to some of the applicant's family members seeking asylum in Greece on the basis of being Sunni ([93]; CB 434-435) was legally unreasonable. The fact that family members may make false claims, including possibly to support another family member is not necessarily implausible. They may also have simply chosen to follow the applicant's claims because he was successful in gaining the visa in Australia.
2. In any case, the matter complained of is only one of a number of separate reasons the Tribunal gave for finding the applicant was not a Sunni and again its ultimate decision cannot be said to be legally unreasonable simply on this basis: Mailau.

1. This claim again relies upon legal unreasonableness. The test for legal unreasonableness is stringent and will only arise in rare cases. It is invariably fact dependant and is not a basis for a Court to substitute its views on the evaluative judgements of decision makers.
2. At [93], the fifteenth dot point, the Tribunal accepted that some of the applicant's family members had sought and been granted asylum in Greece and had also claimed to be Sunni Muslims wanted by the Badr Corps. The Tribunal asked for the claims of the applicant's father (in Belgium) and brother (in Finland) to be provided so they could be cross checked, however the applicant's advisor stated they were 'unable to get the statements from Belgium without elaborating.'
3. The Tribunal noted the documents that were provided, being the fathers refugee card from Belgium and an identity card in his brother's name from Germany, even though he applied for asylum in Finland. No explanation was offered for the latter discrepancy.
4. The Tribunal concluded that due to the absence of the fathers and brothers refugee claim documentation and the timing of his other families claims in Greece, being after the applicant had successfully claimed protection in Australia, those matters could be given little weight.
5. It was not necessary for the Tribunal to conclude that the applicant's family members had committed perjury or collusion. The Court is not satisfied there was a gap in the reasoning process. The Tribunal sought further information regarding the brother and the father. It was not provided. There was a legitimate issue of timing in relation to the applicant's successful protection claim and the claims being made in Greece by other family members.
6. The Tribunal was entitled to take these matters into account in the weighing exercise as to whether the applicant was credible and had been truthful in his application form for protection. The evaluation of the weight to be given to the evidence was a matter for the Tribunal. That evaluation does not meet the stringent requirement for legal unreasonableness.
7. Even if the Court is wrong in this regard, the Court is not satisfied any error was material, in that the matter did not impact on the ultimate conclusion arrived at by the Tribunal. This issue was not dispositive of the matter.
8. Ground five has no merit.

1. Ground six is a complaint that the manner in which the Tribunal drew adverse inferences against the applicant's father and the applicant, based on the information on the father's social media site, involves jurisdictional error.
2. The Tribunal stated that the social media site of the applicant's father links the father to the Shi'a faith in three ways as follows:
   • "through his mourning of Imam Hussein";
   • "through ... the liking of pieces of distinctly Shi'a iconography" and
   • through ... links to other individuals whose electronic footprint indicate that they have a close affinity with the Shi'a faith".
3. There are multiple difficulties with the Tribunal's reasoning process. First, the relevant page from the social media site was not before the Tribunal. If this is correct, it is difficult to understand the source or basis of the Tribunal's assertion that the social media site showed the father "mourning ... Imam Hussein". Further, it is significant that the author of the NOICC did not state, either directly or indirectly, that the father's site showed him "mourning ... Imam Hussein". The Tribunal member has made up a significant fact, without any evidence in support of the fact, and then used the fact to find that the applicant's father was Shi'a. This, without more, is a jurisdictional error: S_ZRHL v Minister for Immigration and Citizenship_ [2013] FCA 1093; (2013) 136 ALD 641 at [34]- [35].
4. Second, the Tribunal put the allegation that the social media site showed the father "mourning ... Imam Hussein" in a jumble of allegations recorded at page 12 of the transcript. This involved a denial of procedural fairness.
5. Third, even if the father's social media pages were before the Tribunal, it is difficult to envisage how a photo could prove that the father was "mourning ... Imam Hussein". If there was no evidence before the Tribunal to support its assertion that the father "mourned" Imam Hussein, this is a jurisdictional error.
6. Fourth, whilst country information indicates that Shi'as are more likely than Sunnis to mourn Imam Hussein, the applicant's agent conscientiously put credible evidence before the Tribunal that some Sunnis also pay homage to or revere Imam Hussein. In addition, after the applicant gave evidence at the hearing that he was from the Shafi sect of Sunni Islam, and after the applicant's agent conscientiously submitted further credible evidence before the Tribunal that Sunnis visit shrines in addition to Shi'as and Shafi shrines include shrines for Imam Hussein, the Tribunal overlooked the evidence and submission which is a jurisdictional error, or failed to give proper and genuine consideration to the evidence and submission.
7. The evidence from the social media site is no more probative than evidence that the father likes Shi'a iconography, therefore the Tribunal's reasoning process is irrational.
8. The evidence from the social media site is no more probative than evidence that the father has friends who are Shi'a, and as such the Tribunal's reasoning process is irrational.

1. Ground six claims the Tribunal erred at [93], in relation to the applicant's father's Facebook page. The applicant's submissions claim that this Facebook page was not before the Tribunal, which is incorrect, rather it was in material covered by a s 438 certificate. The transcript indicates that the applicant was questioned at length about the Facebook page, and he was previously shown it at the Identity interview: [25], [31-33]; CB 422-423.
2. The applicant's complaint appears to argue with the Tribunal's conclusion that the Facebook page indicates that the father was a Shi'a, along with other complaints predicated on the false premise that the Facebook page was not before the Tribunal. The Tribunal cannot be said to have overlooked the applicant's submissions on Sunni practices in visiting Shi'a shrines as suggested in the applicant's submissions, given the Tribunal mentions them at [93].

1. First the Court notes that the father's Facebook site was before the Tribunal, as noted by the first respondent.
2. Second, while the material put to the applicant was lengthy (transcript at p12-13), it was a summary of the material that had already been put to the applicant in the NOICC. What follows is an exchange between the Tribunal and the applicant seeking to expand on the applicant's explanations for the concerns outlined.
3. The Court is satisfied that the applicant's submissions about Sunni practices in visiting Shi'a shrines was not overlooked. The discussion by the Tribunal member at [93] is both informed and detailed in its analysis of the discrepancies contained in the applicant's evidence. The Court notes the appropriate scepticism by the Tribunal member as to the applicant, who claimed to be a Sunni, hiding from Shi'as militia groups, would pick up a false passport from one of Shi'isms holiest cities, and further describe it as 'the best two days time not sleeping'. The Court is not satisfied, when read as a whole, the Tribunal's reasoning was irrational, noting the high bar for such a finding. Ground six has no merit.

1. Ground seven is a complaint that arises from the Tribunal's alleged inconsistent and contradictory application of the different weight which may be given to evidence concerning a matter depending, on whether the evidence concerned a period before; or alternatively after, an applicant receives a NOICC a visa which puts the matter in issue. The Tribunal's inconsistent and contradictory application of the principle involves jurisdictional error.
2. More specifically, the Tribunal significantly discounted the evidence that the applicant's mother and siblings made Sunni-based claims for protection in Greece because, by the time they made the claims, "it is reasonable to believe the family would have known", through receipt by the applicant of the NOICC, that the Department had put in issue whether the applicant was Sunni.
3. Further, the applicant provided evidence to the Tribunal from two suitably qualified witnesses that over a number of years, including before the applicant received the NOICC, the applicant had prayed in the Sunni way. The applicant's agent emphasised the significance of the point that the applicant prayed as a Sunni before he received the NOICC, thereby eliminating the possibility that the NOICC caused him to manufacture evidence. Yet the Tribunal ignored this point in its decision.

1. This ground complains the Tribunal did not give weight to the witnesses' evidence that the applicant prayed in a Sunni Mosque before receiving the NOICC (CB 208), but nevertheless relied on the family members in Greece being aware of the proposed cancellation. Whilst the applicant submitted that this was inconsistent, the weight the Tribunal gave to evidence was a matter for it. No legal unreasonableness or other legal error by the Tribunal is demonstrated.

1. The appropriate weight to be given to individual pieces of evidence is a matter for the Tribunal. Only if the weighing process meets the stringent bar of legal unreasonableness, which includes irrationality or illogicality, will a Court find jurisdictional error. No such jurisdictional error exists.
2. The Tribunal was entitled to put appropriate weight on separate pieces of evidence for the reasons it did, based on the veracity and reliability of that evidence, when viewed in the context of the evidence as a whole. The Court is not satisfied the Tribunal ignored the evidence that the applicant prayed in a Sunni way. The Tribunal accepted the evidence of the two lay witnesses as honest but mistaken as to the ultimate conclusion. This included a lack of a detailed knowledge of the applicant's personal circumstances, as set out in the Tribunal decision record. This ground has no merit.

1. As none of the grounds of judicial review have merit, the application must be dismissed.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.