Consideration
55 It is open to doubt the essential proposition on which the applicant's case proceeds: that the third Tribunal misunderstood the effect of Direction 79 in connection with refoulement obligations. After all, paragraph 12 of the Direction (reproduced at [11] above) commences by saying that international non-refoulement obligations must be taken into account where relevant. While the effect of paragraph 12.1(4) is that when the non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed for the purposes of determining whether their visa application should be refused, that is not precisely the same thing as saying that those obligations need not be taken into account. So it is arguable that, strictly speaking, the Tribunal was correct when it said that non-refoulement obligations are a matter which it is directed to take into account when exercising its s 501 discretion.
56 Nevertheless, the Minister did not contend that the third Tribunal's understanding of Direction 79 was correct in this regard. I will therefore proceed on the basis, favourable to the applicant, that the third Tribunal was incorrect when it said that the second Tribunal had been required to take non-refoulement obligations into account, where relevant, when determining whether to exercise its discretion under s 501 of the Act. And it said that repeatedly (see [20], [27], and [35] above), so it must be taken at face value to represent the third Tribunal's opinion on the subject for the purposes of making its decision.
57 It does not follow, however, that the third Tribunal fell into jurisdictional error. Its reasons must be read fairly as a whole. When that is done, I consider that the Tribunal's incorrect view of the effect of the Direction, though stated repeatedly, was peripheral to its reasoning about the applicant's credibility, so that neither the Tribunal's conclusion about his credibility, nor the reasoning by which it reached that conclusion, were illogical, irrational, or legally unreasonable.
58 To summarise that reasoning, as set out above:
(1) The third Tribunal was concerned about the applicant's 'failure' to raise any fears of harm with the second Tribunal. It had put those concerns to the applicant at the second hearing. It said that the fact that the applicant had not raised non-refoulement obligations with the second Tribunal was relevant because the second Tribunal was directed to take them into account, where relevant, or was required to take them into account: [20], [27] above.
(2) However when it came to explain the significance of the 'failure' to raise the claims before the second Tribunal, the third Tribunal said that this was because it 'may also cause the Tribunal to doubt the credibility of claims which were not raised in the context of consideration of his visa refusal'. This was said to be in circumstances 'including where the Tribunal was required to consider whether non-refoulement obligations were owed to the applicant if representations to that effect were made by the applicant' (Tribunal para 41 at [27] above, emphasis added; see also s 424A letter at [20] above). That suggests that the Tribunal considered that, while relevant, its view of the necessity for the second Tribunal to deal with non-refoulement was not essential to its concerns. The more fundamental point was that the applicant could have raised non-refoulement with the second Tribunal, but did not.
(3) When the Tribunal recorded the concern that it put to the applicant at the first hearing, it did not mention its belief that the second Tribunal was required to consider non-refoulement obligations. That was at paragraph 74 (reproduced at [31] above), when the Tribunal simply put to the applicant the fact that the applicant's fears of harm had not been raised in the second Tribunal proceeding, when the applicant had been legally represented, and that this might raise concerns regarding the credibility of his claims to fear harm.
(4) Similarly, at paragraph 109 (reproduced at [35] above), the Tribunal's concerns about the timing of the applicant raising fears of harm were put on a broader basis, to include the applicant's delay in raising the fears for more than 13 years after he arrived in Australia, for three years after his permanent partner visa was refused, and more than two years after his brother died (or, as the applicant claimed, had been murdered). It is true that the Tribunal put particular emphasis here on the applicant's failure to raise the fears in the second Tribunal proceeding 'where the Tribunal was bound to consider any claims by the applicant to be owed non-refoulement obligations', but the paragraph as a whole shows that its concerns were broader than that.
(5) That is confirmed by the next paragraph, 110, where the Tribunal addressed the applicant's 'general failure to raise his fears of harm on return to Zambia earlier'. The Tribunal did not consider the applicant's explanations to be 'credible in explaining the very late raising of these claims only after the applicant's permanent partner visa was refused, appeals were exhausted and Ministerial intervention requests had failed'. The Tribunal expressed the view that it would have been reasonable to expect that, if the applicant's fears were genuine, he would have raised the claims 'during prior visa processes, in particular since the refusal of his Permanent Partner Visa in 2018'. It is true that, once again, the Tribunal went on to note in particular the 'reinstatement' proceedings (more correctly, visa refusal review), but in that connection it did not mention any requirement for the second Tribunal to consider non-refoulement, only that (correctly), 'such claims arise for consideration under the Ministerial Direction'.
(6) The following paragraph, 111, then encapsulates the Tribunal's reasoning. It too is reproduced at [35] above. It speaks for itself and I will not paraphrase or summarise it here. I will only note that it makes no mention of the supposedly mandatory nature of non-refoulement as a consideration before the second Tribunal, and that it places particular weight on the applicant's 'failure to apply for protection for more than two years after his brother's claimed murder' (emphasis added) as 'a strong indication' that the applicant was not to be believed in saying that he was fearful.
(7) The Tribunal repeated that point towards the end of its consideration of the applicant's claim concerning his inheritance, at paragraph 132 (see [41] above).
59 When this reasoning is considered as a whole, the Tribunal's error does not render illogical or irrational either the reasoning process or its outcome. It was open to come reasonably to the conclusion that the applicant's omission to raise protection claims until the day after his request for Ministerial intervention was not accepted, reflected poorly on the credibility of those claims.
60 As the Minister points out, regardless of Direction 79, it was open to the applicant to raise his fears about returning to Zambia in the second Tribunal proceeding (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [28]-[30]), and it would have been open to the second Tribunal to have taken them into account as a matter relevant to the grant of the permanent partner visa. And it is evident that underlying the third Tribunal's concerns was the view that a person who genuinely did fear being murdered on return to Zambia would bring that up at the earliest opportunity. That is an intelligible justification for the Tribunal's view that the fact that the applicant did not bring it up reflected adversely on his credibility, and tended against believing that he had the subjective fears that he claimed.
61 The applicant also relies on the reference to paragraph 13 of the 'Guidelines on the assessment of credibility' issued by the Tribunal's Migration and Refugee Division, which appears in the paragraph of the Tribunal's decision that is reproduced at [32] above. Paragraph 13 refers to the requirement in s 423A of the Migration Act, in broad terms, that if a protection visa applicant seeks to rely in the Tribunal on matters not raised with the delegate, the Tribunal is to draw an unfavourable inference about credibility if the Tribunal is satisfied the applicant does not have a reasonable explanation for why those matters were not raised with the delegate. The applicant submits that the fact that the Tribunal referred to that requirement in the context of a situation where protection claims had not been raised with a previous Tribunal, rather than the delegate who decided the protection visa application, reinforces the view that the Tribunal was labouring under a misapprehension of what was required of the applicant in the second Tribunal proceeding. But with respect, I do not consider this adds to the analysis. A passing reference by the Tribunal to one paragraph among several of standard guidelines applicable when it considers protection visa claims is slender support for an inference that it had some misunderstanding of what was required of the applicant in the different context of the second Tribunal proceeding.
62 Counsel for the applicant submitted that the Tribunal was proceeding on the false premise that it was incumbent on the applicant to have raised his protection claims before the second Tribunal. There is some ambiguity in the use of the word 'incumbent' there. To the extent that this means that the third Tribunal thought that there was some kind of obligation on the applicant to raise the claims before the second Tribunal, or that he would lose forever the opportunity to raise them if he did not do so, then that would have been a false premise which could have vitiated the third Tribunal's entire line of reasoning on the credibility of the protection claims. But to the extent that it means that the Tribunal thought that the applicant should have raised the claims, or could reasonably have been expected to raise them, there is nothing illogical about that.
63 In my view, the third Tribunal's reasons as a whole indicate that the latter opinion is the one that it held. The focus of the relevant passages from its reasons is on the second Tribunal's (posited) obligation to take non-refoulement claims into account, not on any obligation by the applicant to raise them. Seen in that light, its mistaken view that the second Tribunal would have been bound to take the non-refoulement obligations into account when determining how to exercise its discretion under s 501 of the Act is of little moment. The view that the applicant could have been expected to raise his fears had they been genuinely held would still have been open on all the material before the Tribunal, and was open in the way that the Tribunal actually assessed that material.
64 Nor do I accept that this amounted to expecting the applicant to act contrary to what was required of him. Direction 79 did not require the applicant to reserve his protection claims to a subsequent protection visa application. The Tribunal was simply acting on the basis that a person with such fears could have been expected to raise them earlier.
65 This directs attention to the applicant's explanation for why he did not raise his protection claims in the second Tribunal proceeding. The Tribunal summarised that explanation accurately at paragraph 45 of its reasons and disposed of it at paragraph 110. The latter paragraph is the focus of the applicant's alternative basis for saying that the Tribunal fell into jurisdictional error, namely that the Tribunal did not give proper, genuine, and realistic consideration to the applicant's explanation of why he did not raise his fears of harm at an earlier time. In that regard, the applicant submits that paragraph 110 is merely a summation of what the applicant had said, followed by a statement of conclusion about what the Tribunal considered it was reasonable to expect.
66 I do not accept that this demonstrates that the Tribunal did not give the point proper, genuine and realistic consideration. I will assume that the point was sufficiently important that it was mandatory for the Tribunal give it consideration of that kind. But even so, it is not enough, as the applicant does, to criticise what is said to be the summary way in which the Tribunal expressed its reasons. What is required is the reality of consideration by the decision maker: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). The ground does not suggest that the Tribunal fell into jurisdictional error because it gave inadequate reasons.
67 Considered in context, it is clear that the Tribunal was aware of the applicant's explanation. The explanation was given as his response to the s 424A letter, was accurately summarised by the Tribunal at paragraph 45 of its reasons, and was also the subject of a discussion between the Tribunal and the applicant at the first hearing, as recorded at [31] above. It cannot be suggested that the Tribunal either overlooked the explanation or was unaware of its significance.
68 In that context, the Tribunal's treatment of the applicant's explanation at paragraph 110 was sufficient. To repeat it:
…The Tribunal did not regard these explanations to be credible in explaining the very late raising of these claims only after the applicant's Permanent Partner Visa was refused, appeals were exhausted and Ministerial intervention requests had failed. In the Tribunal's view it is reasonable to expect that if the applicant's fears were genuine he would have raised these concerns during prior visa processes, in particular since the refusal of his Permanent Partner Visa in 2018. In particular, it is reasonable to expect the applicant would have raised his claims to fear being seriously or significantly harmed by his family members in the context of his efforts to 'reinstate' his Permanent Partner Visa given such claims arise for consideration under the Ministerial Direction applying to those applications.
69 The Tribunal thought that the fears were raised 'very late'. It thought that they would have been raised earlier, at least after the refusal of the permanent partner visa in 2018. The Tribunal also referred at paragraph 111 to the fact that in the second Tribunal proceeding, the applicant was represented, suggesting that the Tribunal had in mind the likely awareness of the applicant's legal representatives that non-refoulement could have been raised.
70 That is in a context where the Tribunal had earlier specifically noted that the applicant's then-counsel confirmed that non-refoulement issues did not arise and that he did not raise any claims to fear harm from his family members on return to Zambia (see [12] and [18] above). That is quite different to a submission from that counsel that there were protection claims but consistently with Direction 79, the applicant was reserving them for a protection visa application. Counsel for the applicant in this Court submitted that the third Tribunal had incorrectly described what counsel in the second Tribunal said, but with respect I discern no inaccuracy. The third Tribunal said that the transcript in the second Tribunal proceeding indicated that counsel confirmed that non-refoulement issues did not arise. That is precisely what the transcript (excerpted at [12] above) does indicate.
71 Implicit but clear in all this reasoning is an inference that the applicant did not raise the fears because they were not genuine fears, and were contrived only when other avenues to obtain a visa were exhausted. The Tribunal considered that this was likely to be the true explanation, not the one given by the applicant. That line of reasoning was open and demonstrates a genuine engagement by the Tribunal with the explanations given.
72 It is true that the Tribunal did not directly discuss the point the applicant now makes - that he was acting as Direction 79 contemplated he would - but that point was not clearly raised by the applicant before the Tribunal. It would be unrealistically exacting to expect a busy administrative decision maker, needing to deal with a myriad of issues in each decision, to tease out, articulate and expressly engage with a point of that kind, when the applicant did not articulate it himself.