Appellants' submissions
52 The Appellants submit that it can be inferred from the Tribunal's failure to expressly refer to Mr Assaf's statutory declaration that it failed to consider that document, and that it thereby fell into jurisdictional error. Whereas the primary judge was satisfied that the Tribunal considered Mr Assaf's evidence but found it to be insufficiently material to warrant mention with respect to the return of the Second and Third Appellants to Lebanon, on appeal:
the appellant[s] emphasis[e] a different feature of Mr Assaf's corroborative evidence that cannot readily be explained as being "immaterial" to the issues arising on the review. That concerned the nature and extent of the appellant's political convictions and activities, including as bearing on the likely nature and extent of the [first] appellant engaging in political activities on the basis of his convictions, in the event that he were to be returned to Lebanon.
53 The Appellants in that regard refer to the judgment of the Full Court in BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76; 261 FCR 515 (BXK15). It is convenient to extract the following passages from that decision, on which they place particular reliance:
16. Whether the Tribunal failed to have regard at all to [sic] the witness statements is a question to be determined in all of the circumstances, including the nature of the appellant's claims, the materiality of the evidence in question and the conduct of the Tribunal's proceedings. The manner in which the Tribunal expressed its reasons informs that inquiry, but is not determinative of it. However, as the Full Court said in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 (at [34]):
… where a particular matter, or particular evidence, is not referred to in the tribunal's reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can sensibly be understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
17. In our view it could not be said that the Tribunal made no mention of the witness statements because the Tribunal considered them to be immaterial. If accepted, the statements were capable of supporting the factual allegations made by the appellant in support of his claim to have a well-founded fear of persecution should he be returned to India. The statements did not go to a peripheral issue. They could not be ignored on the basis that they were irrelevant to the appellant's claims, nor on the basis that the matters dealt with in the statements were subsumed in findings of greater generality and so rendered unnecessary to consider or decide.
54 With respect to the issue of materiality, the Full Court relevantly stated that:
21. The primary judge was correct to observe that the Tribunal identified multiple inconsistencies and deficiencies in the appellant's accounts, both in relation to the factual matters dealt with in the witness statements and in respect of other factual matters to which the statements did not refer. The primary judge was also correct in his assessment of the likelihood that the Tribunal would view the witness statements with some scepticism.
22. There were multiple factors bearing adversely on the appellant's credibility. As Logan J has identified, the Tribunal gave detailed reasons for its adverse credibility findings, a summary of which appears at [41] of his Honour's reasons. Many of the factors bearing adversely on the appellant's credit could not have been affected by the context of the witness statements. That is particularly so in respect of matters such as the appellant's delay in making his application for protection, his return to his village in 2011 despite his claimed fear of persecution at the hands of authorities there, and inconsistencies between evidence given by the appellant at the hearing and on his visa application about who had threatened his father. However, other findings affecting the appellant's credibility did indeed concern factual matters in respect of which the two statements were corroborative. Read as a whole, the Tribunal's reasons indicated that its conclusion that the appellant was not a credible witness was founded on an accumulation of factors, many of which but not all of which could not have been affected by the content of the statements.
23. In our view, the critical question is not whether the Tribunal was likely to view the statements with scepticism. Nor is it correct to ask whether the two findings recorded in the witness statements could possibly overcome the significant adverse credibility findings recorded in the Tribunal's reasons. To approach the appeal in that way is to ignore the circumstance that the Tribunal's reasons are a record of a reasoning process based on an incomplete assessment of the relevant evidence. The critical questions is whether the Tribunal could possibly have assessed the appellant's credibility (and hence the substantive issues) differently had it been conscious of the content of the statements at the time that it engaged its own reasoning process.
24. The order in which the Tribunal decided to deal with the evidence is also significant.
25. Whilst it may have been open to the Tribunal to first consider the appellant's evidence in isolation from corroborative evidence, it cannot be said with certainty that the Tribunal would have adopted that method of decision-making had it been conscious of the content of the statements from the outset. Had it been conscious of the existence of the statements, it may instead have adopted what McHugh and Gummow JJ described as the "preferable method of going about the task presented by s 430 of the Act": Applicant S20/2002 at [49]. Accordingly, it is no answer to the appellant's arguments on this ground of appeal to say that his credibility was irreparably damaged by the time that the corroborative evidence came to be considered. It is possible that the appellant's credibility may not have been irreparably damaged at all. There is, accordingly, jurisdictional error.
(Emphasis in original).
55 The Appellants submit that here, the Tribunal was required to conduct a future-focused assessment of whether there was a real chance or risk of the Appellants facing serious or significant harm in Lebanon. In that regard, the First Appellant had contended that he feared harm not only because of his connection with his father-in-law and associated past activities but also on the basis of political activities he would engage in in connection with the Future Movement in the future, having regard to his ongoing commitment to that cause as demonstrated by his activities in Melbourne. Those were matters that Mr Assaf's statutory declaration directly addressed.
56 The Appellants submit that Mr Assaf's statutory declaration had "dual significance" in that regard. First, the evidence Mr Assaf gave as to the First Appellant's political convictions and activities corroborated his evidence as to what had occurred in the past. It was capable of bearing on an assessment of his credit with respect to his account of political activities he had undertaken in Lebanon. Secondly, Mr Assaf's evidence was probative of the likely nature and extent of the First Appellant's political activities were he to return to Lebanon in the future.
57 Those were critical issues. In particular, identifying the precise extent of the First Appellant's past and/or future involvement with the Future Movement in Lebanon was crucial in determining the risk that he might face. The Appellants submit that Tribunal found that "ordinary members" or "moderate supporters" of the Future Movement were not at risk or did not face a real chance of suffering serious harm in Lebanon (referring to paragraphs [123], [126] and [131] of the Tribunal's reasons). The Tribunal found that, in view of its adverse credit finding, the First Appellant fell within that category. Notwithstanding his family connections, he was merely an ordinary member of the Future Movement who did not have his own political profile (referring to paragraphs [102]-[105] and [116] of the Tribunal's reasons). Against that background, Mr Assaf's statutory declaration was highly significant.
58 The Appellants submit that against those circumstances, it can be inferred from the Tribunal's failure to refer to Mr Assaf's evidence that the Tribunal failed to consider it. Given the significance of that evidence, that failure amounted to jurisdictional error. In particular, "applying BXK15, it is possible that the Tribunal would have reached a different decision if it had been conscious of the content of Mr Assaf's statement".
59 In oral argument Mr Wood, counsel for the Appellants, adopted the following passage of the Minister's written submissions as a useful breakdown of the contents of Mr Assaf's statutory declaration:
25. The aspects of the Assaf Stat Dec which are now said to have been material were to the effect that the appellant:
a) has attended events of the Future Movement in Australia;
b) is deeply knowledgeable about the [Future Movement Party] and its internal workings as a result of the appellant's relationship with his father-in-law, and his own political commitments and involvement; and
c) that he will continue to be active and involved with the FMP if returned to Lebanon, due to his own political commitments, deep knowledge of the party, and to keep his father in law's legacy alive.
(Footnotes omitted).
60 Mr Wood accepted that Mr El Hawli's evidence also addressed the matter identified at subparagraph (a). However, he submitted that the matters identified at subparagraphs (b) and (c) were not otherwise addressed in the evidence to which the Tribunal referred in its reasons.
61 The matters identified at subparagraphs (b) and (c) related to a particular aspect of the Appellants' claims: namely that the First Appellant would be involved in the activities of the Future Movement in the future if retuned to Lebanon. In Mr Wood's submission this was independent from the claims that the Appellants advanced based on what the First Appellant's involvement was said to have been in the past. In his submission, the Court should infer that the Tribunal failed to consider those matters in addressing that independent claim.
62 With respect to the Minister's submission (addressed below) that the aspects of Mr Assaf's statutory declaration identified at subparagraphs (b) and (c) rose no higher than what the Tribunal ultimately found, Mr Wood submitted that the Tribunal found only that the First Appellant would be an ordinary member of the Future Movement party. Mr Wood submitted that this "de minimis" acceptance of the First Appellant's likely future involvement with the Future Movement was not consistent with his wider claims, as were corroborated by Mr Assaf's statutory declaration:
At [82], the Tribunal records that it suggested to the Appellant that he was simply a supporter, not active in the Future Movement. The Appellant responded that, had he not come to Australia, he would have been someone important in the Future Movement. He referred to important people that he knew and he says on his return he might be … stand for Parliament.
63 This, Mr Wood submitted, was "evidence that [the First Appellant] would be someone important emanating from the depth of his convictions". That was different from what the Tribunal found. It rejected that claim. That reading of the Tribunal's reasons was supported by its express reference (at [75]) to country information clearly distinguishing the risk faced by ordinary supporters of the Future Movement from that faced by leaders of the party.
64 Mr Wood submitted that the Tribunal drew a distinction between the risk posed to mere supporters of the Future Movement party and the risk posed to those who actively agitated for it, expressing (at [82]) doubt as to the First Appellant's claim that he would fall into the latter category. Mr Assaf's statutory declaration was corroborative of that particular claim:
… the Appellant said, "I would have been someone important," and, in substance, "I'm going to be someone important; I may even stand for Parliament." Now, the Tribunal clearly had doubts about the Appellant's credibility and it expressed those doubts largely by reference to the Appellant, in its view, exaggerating aspects of his involvement in the past. Nowhere did the Tribunal expressly explain why the Appellant's statement as to his intention in the future was not plausible, but perhaps fairly reading the Tribunal's reasons you might think, well, it disbelieved the Appellant about the past and so it discounted his evidence about the future.
But that's [why] Assaf matters, your Honour, because Assaf then becomes, in effect, a corroborative witness. Someone who knows the Appellant, has observed him over time, has spoken with him, has been engaged in the Future Movement in Australia with him, and says, "My belief is that this man will be active in the future."
65 Mr Wood rejected the proposition that it might have been open to the Tribunal to reject the evidence that Mr Assaf gave in his statutory declaration as plausible in view of its adverse finding as to the First Appellant's credit (at [102]). He submitted that "rejection of claims about past events does not foreclose or does not determine, necessarily, a claim about likely future events". While the Tribunal found that the First Appellant had "overreached" in telling his story about the past, Mr Assaf was in a position to give direct evidence about his current and (likely) future political activities.
66 With respect to BXK15, the Court put to Mr Wood the proposition that there might be a third possibility in addition to those identified at paragraphs [16]-[17] of that decision. The Tribunal may have omitted to mention Mr Assaf's statutory declaration because it overlooked it; because it did not consider it to be material; or because its consideration of that evidence was regarded as having been embraced within its discussion of Mr Assaf's oral evidence.
67 Mr Wood, while noting that the relevant transcript was not before the Court, submitted that there was a significant distinction between Mr Assaf's oral evidence (as summarised by the Tribunal) and his written evidence. In his statutory declaration, Mr Assaf expressed a view as to the political activities in which the First Appellant was likely to engage despite his father-in-law no longer being directly involved with the Future Movement. His evidence, in Mr Wood's submission, was that the First Appellant was "going to take up the reins and continue the legacy of the father-in-law, actively." The Tribunal's summary of his oral evidence could not be regarded as having embraced that evidence.
68 With respect to the fact that the Tribunal did consider the evidence of Mr El Hawli, which may have suggested that the First Appellant's level of participation in the activities of the Future Movement in Australia had been relatively modest, Mr Wood submitted that Mr Assaf's evidence was distinct in that it suggested that he personally had a strong "bond" with the First Appellant. That gave him particular insight into the First Appellant's political convictions.
69 Regarding the Minister's submission (addressed below) that Mr Assaf's evidence with respect to the First Appellant's likely future activities if he were to return to Lebanon was merely assertion, Mr Wood submitted:
… that sounds to me, your Honour, a little bit like merits review in the sense that it's identifying a basis upon which the Tribunal might have said, "Well, I know you've said that, Mr Assaf, but I don't accept it for this reason." But the whole point is it didn't say that.
70 The evidence that Mr Assaf gave in his statutory declaration was independent evidence that was capable of supporting the First Appellant's claims. On one level, it might be characterised as assertion. That however is true of all evidence that might be given about the future, which is nonetheless clearly relevant to the future-focused task the Tribunal is required to undertake. If the Tribunal were to reject the evidence that Mr Assaf had given in his statutory declaration, one would therefore expect it to give reasons for doing so.
71 For completeness, I note that Mr Wood also submitted that I would be entitled to infer that the transcript of the Tribunal hearing would not have assisted the Minister: having regard to his failure to adduce it. I declined to draw such an inference, in view of the Minister's counsel confirming that his instructions were that the Minister did not have a copy of that document in his possession.