FEDERAL COURT OF AUSTRALIA SZNOL v Minister for Immigration and Citizenship [2012] FCA 917 Citation: SZNOL v Minister for Immigration and Citizenship [2012] FCA 917 Appeal from: SZNOL v Minister for Immigration and Citizenship & Anor [2012] FMCA 162 Parties: SZNOL v Minister for Immigration and Citizenship and the Refugee Review Tribunal File number: NSD 501 of 2012 Judge: EMMETT J Date of judgment: 10 August 2012 Legislation: Migration Act 1958 (Cth) s 416 Date of hearing: 10 August 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 54 Counsel for the appellant: Mr P Menzies QC and Mr L Waterson Solicitor for the appellant: Kinslor Prince Lawyers Counsel for respondent: Mr G Johnson SC and Mr D Godwin Solicitor for the respondent: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 501 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNOL Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EMMETT J DATE OF ORDER: 10 AUGUST 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 501 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZNOL Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: EMMETT J DATE: 10 AUGUST 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This appeal concerns a decision of the Federal Magistrates Court dismissing an application for judicial review of a decision made by the second respondent, the Refugee Review Tribunal (the Tribunal). The Tribunal's decision (the Second Decision) was to affirm a decision of the first respondent, the Minister for Immigration and Citizenship, not to grant to the appellant a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (the Act). In order to put the questions raised in the appeal into context, it is necessary to say something about the circumstances that led to the application for a protection visa by the appellant. 2 The appellant is a citizen of Togo. He first arrived in Australia in 2008 for the World Youth Day, organised by the Roman Catholic Church. He arrived in Australia on a visitor's visa issued on 30 May 2008. On 25 August 2008, he applied for a protection visa and on 20 November 2008, a delegate of the Minister refused to grant the visa. On 8 April 2009, the Tribunal, constituted differently from the Tribunal that made the Second Decision, made a decision (the First Decision) to affirm the Minister's decision not to grant a protection visa. The appellant then sought judicial review of the First Decision on the basis that it was affected by jurisdictional error. On 28 July 2009, the Federal Magistrates Court dismissed the application for judicial review. The appellant then appealed to the Federal Court of Australia. That appeal was dismissed. 3 Some time after the decision of the Federal Court dismissing his appeal, the appellant left Australia voluntarily on 8 April 2011 and travelled to Samoa. However, the authorities in Samoa declined to grant him a visitor's visa and he was returned to Australia, arriving back in Australia on 9 April 2011. On 11 April 2011, the appellant applied again for a protection visa under the Act. That was permitted under the Act in circumstances where he had left Australia. The second application for a protection visa was refused on 23 June 2011. The appellant sought review by the Tribunal of that decision on 24 June 2011. On 21 September 2011, the Tribunal, differently constituted, made the Second Decision, affirming the decision not to grant the appellant a protection visa under the Act. 4 On 26 October 2011, the appellant commenced another proceeding in the Federal Magistrates Court, seeking judicial review of the Second Decision. On 13 March 2012, the Federal Magistrates Court ordered that that proceeding be dismissed. The Federal Magistrates Court also ordered the appellant to pay the Minister's costs of the proceeding. By notice of appeal of 3 April 2012, the appellant appealed to the Federal Court from the orders of the Federal Magistrates Court of 13 March 2012. 5 There are two grounds raised in the appeal to the Federal Court. Before explaining the grounds and dealing with them, it is necessary to say something about the claims made by the appellant and about the First Decision and the Second Decision. The appellant claimed that, if he returned to Togo, he would be harmed by members of the Rally for the Togolese People (the RPT). He claimed that his family were caught up in difficulties between the Union of Forces for Change (the UFC) and the RPT. He claimed that his father was killed in an accident in 1998 and that his mother died in 2001. He claimed that supporters of the RPT were responsible for their deaths and subsequently for the detention and torture of the appellant and his brother. 6 Relevantly, for present purposes, the appellant claimed that he was a student at the University of Lomé between 2006 and 2008, when he lived in Aného. He claimed that, during the period that he was living in Aného, he was in hiding. However, in the course of his first application for a protection visa and in the course of the review by the first Tribunal, his attention was drawn to possible inconsistencies between his evidence and his previous statements that he was studying during the period at the University of Lomé. The appellant asserted to the first Tribunal that his elder brother had enrolled him at the University of Lomé but that he had not attended classes there. 7 The first Tribunal subsequently wrote to him, drawing his attention to possible inconsistencies between his evidence and his previous statements. The first Tribunal attached significance to the fact that the appellant had said that he had attended the University of Lomé. That bore on the question of whether or not he was in hiding between 2006 and 2008, as he claimed. The first Tribunal said in its letter to the appellant that, if it was not satisfied that the appellant was not studying between 2006 and 2008, that may lead it to the conclusion that he was not in hiding in Aného and, therefore, did not attend meetings of the UFC in Aného as he claimed. 8 In response to the Tribunal's letter, the appellant's advisor wrote to the Tribunal on 26 March 2009, saying that from August 2006 the appellant had lived in Aného with Father Deto and that, although the appellant was enrolled at the University of Lomé, he did not attend any classes at all. The letter said that the appellant's brother enrolled him in various courses so that he could collect the study allowance payable to enrolees. The appellant's advisor enclosed with the letter of 26 March 2009 a letter purporting to be written by Father Deto dated 8 March 2009. In that letter, Father Deto confirmed that the appellant, while living in Aného, lived next door to the parish centre where Father Deto resided. The letter confirmed that the appellant did not attend the course at the University of Lomé while he lived in Aného. 9 A critical integer in the appellant's claim was that he had fled his family home in Lomé to live with a priest, Father Mensah, who had subsequently arranged for him to go into hiding in another town, namely Aného, with Father Deto. There was a letter from Father Mensah, as well as from Father Deto, corroborating that story. Notwithstanding that evidence, the first Tribunal was not satisfied that the appellant was in hiding with Father Deto in Aného because it was not satisfied that he was not, at the time he claimed to be in hiding, studying at the University in Lomé. The first Tribunal found in the First Decision that, on the basis of the inconsistencies in his evidence, the appellant was not telling the truth about his study at the University of Lomé. 10 In dealing with the letters from Father Mensah and Father Deto, the first Tribunal said that it had considered letters from the appellant's family, being letters from his sister, his brother and Mr George Wallace, as well as from Father Mensah and Father Deto. The first Tribunal said that, given its concerns about the appellant's credibility, and the contents of those documents, being untested assertions, the first Tribunal did not give them sufficient weight to overcome its concerns with the appellant's evidence. Thus, in effect, the first Tribunal in the First Decision gave something less than full weight to the letters from Father Mensah and Father Deto. 11 In its reasons for the Second Decision, the second Tribunal first recounted the appellant's first application for a protection visa. It set out in some detail the material that was before the first Tribunal when it made the First Decision. The second Tribunal then considered the second application for a protection visa and the material that had been provided in support of that second application, over and above the material that had been before the first Tribunal. Part of the additional material that was provided to the second Tribunal was a submission from the appellant's current advisors dated 11 August 2011. In that submission, the appellant's advisors referred to his claim that his extended family were strong supporters of the RPT, that the late President of Togo was his great uncle, and that the current President was his cousin. The advisors said that the Minister for Public Works was a distant uncle, that the Minister for Security and the Secretary of State for Youth and Sport were former family friends, and that the Minister for Justice and the former Minister for Territorial Administration, Decentralisation and Local Authorities, who they said remained influential and active even though they had officially retired, used to meet regularly with the appellant's father. The advisors submitted that the appellant feared persecution in Togo due to his perceived opposition to the RPT and the Togolese government. 12 The appellant's advisors also attached what they described as a "wealth of information" about human rights abuses in Togo. The information consisted of extracts from the US State Department's Country Reports on Human Rights Practices for 2010 in relation to Togo, Amnesty International's Report 2011 in relation to Togo and Freedom House's Freedom in the World 2010 in relation to Togo. The advisors referred to the relevant law and to the appellant's claims, and submitted that his claims were consistent with information about human rights abuses to which they referred. 13 The appellant attended a hearing before the second Tribunal. In the course of that hearing, the appellant confirmed that he had been enrolled in English at the University of Lomé and that he had attended the university during his first year. He said that he had not sat for his examinations in June 2006. He said that he had attended the university for the first term and after that had not been able to continue because he had been in hiding with a friend of his uncle, Father Deto. He said that this friend had also happened to be a priest in a different region of Togo. He said that he had gone into hiding there in April 2006 because he had feared for his life. He claimed that the same people who had organised and killed his parents had been looking for him and that his siblings had been tortured so that he did not feel safe. 14 The second Tribunal put to the appellant that he had previously said that he had only gone into hiding with Father Deto in August 2006, after the meeting on 27 July 2006. The appellant confirmed that that was correct. The second Tribunal also referred the appellant to his evidence that he had not attended university after he had gone into hiding with Father Deto in August 2006. The second Tribunal put to the appellant that when he had been interviewed by the officer of the Department in relation to his first application, he had told the officer that he had done a two-year course in English on the campus, but that that had not worked out so he had switched to sociology. He said that that was correct; that he had completed six months of a sociology course at the university. 15 The second Tribunal then put to the appellant that that went to the question of whether he was telling the truth – whether he could be relied upon as a credible witness. The second Tribunal said that it also went to the question of whether he was telling the truth, in particular, about being in hiding in Aného. The second Tribunal referred to his evidence that if he had been in hiding in Aného he could not have attended the university and put to the appellant that what he had told the officer at the interview had been that he had been attending the university both for the English course and for the six months of the sociology course. The appellant replied that he had not attended those classes and said that he had enrolled himself for the first year and that his brother had enrolled him for the two further years, but he had not attended those classes. 16 The second Tribunal put to him that that was not what he had told the officer who had interviewed him in relation to his first visa application. The second Tribunal put to the appellant that the information identified was relevant to the review because it cast doubt on his claims that his parents had been members or supporters of the UFC, that they had both died in suspicious circumstances, that he himself had been persecuted by members of his extended family or people in the RPT because he had been regarded as a supporter of the UFC, or because he had attended meetings of the UFC. It also cast doubt on his claim that he had had to go into hiding in Togo after he had attended a UFC meeting in Lomé in 2006. The appellant indicated that he understood what was being said by the Tribunal and that he had provided evidence to address all of those issues that he had been asked to take into consideration. 17 The appellant said that he did not think that a priest would lie when sending a written declaration about someone's life. He said that in his case there were two priests who had written something. The second Tribunal put to him that one of those priests was his maternal uncle, and the other priest had described himself as a friend of his maternal uncle. The second Tribunal put to the appellant that that might mean that less weight would be given to their evidence than to that of a priest who was simply giving evidence in his capacity as a priest. In its findings and reasons, the second Tribunal referred to the fact that, at the hearing on 12 August 2011, the appellant had referred to the fact that his claims were supported by the letters he had produced from Father Mensah and Father Deto, and that the Tribunal had put to him that Father Mensah was his maternal uncle and that Father Deto had described himself in his letter as a friend of Father Mensah – matters that might lead the second Tribunal to put less weight on those letters than it might have put on a letter from a priest who was simply giving evidence in his capacity as a priest. 18 On 16 August 2011, the Tribunal wrote to the appellant under s 424A of the Act, inviting him to comment on or to respond to certain information that the Tribunal considered might be the reason or part of the reason for affirming the decision under review. The appellant's advisors responded on 14 September 2011, saying that the appellant believed there had been a misunderstanding and that Father Mensah was not a relative of his. They said that the appellant described Father Mensah as an uncle because he had grown up with the appellant's mother. The advisors then said that the appellant did not in fact know the exact nature of the relationship between Father Mensah and his mother. They said that the appellant maintained that the priests had written their letters in their capacity as priests, and not as family friends. 19 In its findings and reasons, the second Tribunal referred to that response to the letter under s 424A of the Act. In dealing with that response, the second Tribunal observed that it was the appellant himself who had said at the Departmental interview, in relation to his first application, that Father Mensah was his maternal uncle. That was repeated in a statutory declaration made on 14 May 2011. The Tribunal referred to the submission of 14 September 2011 to the effect that there may have been a misunderstanding, and that Father Mensah was not a relative. The second Tribunal referred to the submission to the effect that the appellant did not in fact know the exact nature of the relationship between Father Mensah and his mother, and the fact that the advisors maintained that Father Mensah and Father Deto had written their letters in their capacities as priests and not as family friends. 20 The second Tribunal dealt with the matter by saying that, however the relationship was described, it was clear that Father Deto wrote his letter in a character other than his character as a priest. The second Tribunal considered that it was significant that Father Deto described himself in his letter as a friend of Father Mensah and said that it therefore put less weight on those letters, purporting to corroborate the appellant's evidence, than it would have put on a letter from a priest who was simply giving evidence in his capacity as a priest. As will be apparent, the matter of the weight given to Father Deto's letter by the second Tribunal is one of the grounds of appeal. 21 The other ground of appeal concerns the manner in which the Tribunal addressed the operation of s 416 of the Act. Section 416 relevantly provides that if a non-citizen, who has made an application for review of an RRT-reviewable decision that has been determined by the Tribunal, makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application, is not required to consider any information considered in the earlier application and may have regard to, and take to be correct, any decision that the Tribunal made about or because of that information. 22 The first refusal to grant a protection visa was an RRT-reviewable decision. Clearly, the application for review of that decision by the Tribunal has been determined by the Tribunal. Accordingly, the prerequisites of s 416 had been made out in the present case. It was therefore appropriate for the Tribunal, in its reasons of 21 September 2011, to consider the question of the application of s 416. 23 It is common ground that s 416 confers a discretion on a subsequent tribunal as to the significance that it may attach to an earlier decision. That is apparent from the language used in s 416; that is to say, in considering a further application, the tribunal is not required to consider certain information, although it is not precluded from doing so, and the tribunal may have regard to and take to be correct any decision made about or because of that information, but is not obliged to do so. The Tribunal, in its reasons, and as indicated to the appellant at the hearing on 12 August 2011, said that a threshold question arose with regard to the application of s 416. The Tribunal found that the precondition established by s 416 was satisfied. Therefore, the discretion arose. 24 The Tribunal observed that the claims that the appellant was making in his current application were the same claims as had been made in his previous application. The only new information that he had provided was the claim in the letter from his advisors of 11 August 2011, that various ministers are either relatives of his or former family friends or people he used to meet regularly with his father. In the submission of 14 September 2011, the appellant's advisors submitted that, given the change in the quality and significance of the information provided to the Department and the Tribunal as part of the previous proceedings, none of that information should be regarded as having been considered in the earlier application and that s 416 was therefore not applicable in the present case. 25 The Tribunal observed that it is relevant to the exercise of the discretion conferred by s 416 to determine whether there was an error of law in the previous Tribunal's decision or a finding of fact that has subsequently been shown to be wrong or some other flaw in the previous Tribunal's reasoning process. The appellant's advisors submitted that, in order to maintain the integrity of the decision-making process, the Tribunal should decline to exercise the power conferred by s 416 and should undertake a full review of the evidence that had been presented, rather than simply adopt the findings of the previous Tribunal. 26 The Tribunal considered that that approach would leave s 416 with very little work to do. The Tribunal considered that the discretion conferred by s 416 would only be able to be exercised in cases where the credibility of a person's evidence was not in issue. The Tribunal considered that the discretion conferred by s 416 not to consider any information considered in the earlier application should be exercised, except in cases where it can be said that the previous decision of the Tribunal was affected by an error of law or fact or that the previous Tribunal's reasoning process was flawed in some other way. 27 The Tribunal observed that there had been no suggestion that the previous decision of the Tribunal was affected by any error of law. Indeed, that would probably be precluded by the principle of issue estoppel, if not res judicata, by reason of the dismissal of the first application by the Federal Magistrates Court and the dismissal of the appeal in the Federal Court of Australia. The Tribunal said that neither the appellant nor his advisors had submitted that the previous Tribunal made any finding of fact that has subsequently been shown to be wrong. The contention in essence was that the previous Tribunal should have believed the appellant. 28 Much of the evidence given by the witnesses at the hearing before the second Tribunal went to the appellant's credibility. Neither the witnesses, nor the appellant himself, nor his advisors, suggested that the previous Tribunal's decision had been flawed by any relevant misunderstanding of the system in Togo. The Tribunal then referred to the assertion by the appellant that he was registered at the University of Lomé for the second year of his English course in the 2006 and 2007 academic year, and then for the first year of a sociology course in the 2007 and 2008 academic year, but that he did not attend the university after he went into hiding in Aného in August 2006. 29 The second Tribunal observed that the first Tribunal had rejected the appellant's evidence in that regard, in part based on the exchange that took place at the Departmental interview in relation to the first application. The second Tribunal observed that that appeared to be the only area where it was suggested that the reasoning process of the previous Tribunal was flawed. The second Tribunal dealt with the question of the exercise of the discretion conferred by s 416. It is there that the other ground of appeal arises. The second Tribunal observed that, in connection with the appellant's second application, his advisors had produced to the Department personal references from members of the Togolese community in Australia, who stated that they believed that the appellant was telling the truth. 30 The second Tribunal also took oral evidence at the hearing before it from a number of witnesses who also said that they believed that the appellant was honest and trustworthy, and that they had no doubt that he was telling the truth. The second Tribunal indicated to the appellant that it accepted that all of the witnesses believed that he is an honest person and that he is telling the truth. The second Tribunal also accepted that a psychologist who provided a report honestly believed that the appellant feared that he would be tortured or killed if he returned to Togo. The second Tribunal said that it had given careful consideration of the evidence of the witnesses and the psychologist and the personal references that were produced to the Department. 31 However, the second Tribunal said that, since it did not accept that the misunderstandings that the appellant had claimed to have occurred in the course of the Departmental interview in relation to his first application in fact arose, it did not accept that the First Decision was affected by a flaw in its reasoning process or an error of fact. The second Tribunal considered that s 416 serves an important purpose in ensuring finality where the Tribunal has previously considered an applicant's claims, and the Tribunal's decision is not affected by any material error. The second Tribunal said in its reasons that it had decided that it should exercise the discretion conferred by s 416 not to consider any information that had been considered in the appellant's earlier application for review and that it had decided to have regard to, and to take to be correct, the decision that the first Tribunal, had made about, or because of, that information. 32 The second Tribunal observed that it appeared that the claims that the appellant was making in his current application were essentially the same claims that he had made in his previous application. The information that the first Tribunal considered in the earlier application for review included his claims that his parents were members or supporters of the UFC, that they both died in suspicious circumstances, that the appellant himself was persecuted by members of his extended family or people in the RPT because he was regarded as a supporter of the UFC or because he attended meetings of the UFC, that he had to go into hiding in Togo after he attended the UFC meeting in Lomé in 2006, that he was on a list of persons not to be issued with a passport, and that, since he left Togo, soldiers have been looking for him who, in November 2008, had beaten up his brother when they had mistaken his brother for him. The claim also included the appellant's claim that he feared being persecuted because of his involvement in Aspafrique if he returned to Togo. 33 The second Tribunal then formally stated that it took to be correct the First Decision, affirming the decision refusing to grant the appellant a protection visa on the basis of the information before it. In particular, the second Tribunal took to be correct the first Tribunal's finding that it did not accept that the appellant or his family had been persecuted in the past for reasons of their real or imputed political opinions in support of the UFC, nor that there was a real chance that the appellant would be involved with the UFC or would be imputed with a political opinion opposed to the current government if he returned to Togo in the reasonably foreseeable future. 34 The second Tribunal then said something about the new information that had been provided by the appellant's advisors, in response to its letter under s 424A. That, specifically, is the source of the appellant's complaint about the second Tribunal's conduct of its review. The second Tribunal said that it considered that the only new information that the appellant had provided in his current application for review was the claim in his advisors' submissions of 11 August 2011 that various ministers in Togo were either relatives of his or former family friends or people who used to meet regularly with his father. The second Tribunal accepted that that was true. 35 However, having regard to the decision that the first Tribunal had made, the second Tribunal did not accept that, on the basis of that new information, there was a real chance that the appellant would be persecuted for reasons of his real or imputed political opinion if he returned to Togo now or in the reasonably foreseeable future. The Tribunal then referred to the country information that had been provided with the submission of 11 August 2011. The second Tribunal observed, however, that the issue in its review was not whether Togo has a poor human rights record, but whether the appellant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Togo now or in the reasonably foreseeable future. 36 The second Tribunal concluded by saying that, while it accepted that, as the appellant claims, his father had connections to the RPT, it took to be correct the first Tribunal's finding that it did not accept that the appellant or his family had been persecuted in the past for reasons of their real or imputed political opinions in support of the UFC, nor that there was a real chance that the appellant would be involved with the UFC or be imputed with a political opinion opposed to the current government if he returned to Togo in the reasonably foreseeable future. The second Tribunal, therefore, did not accept, on the evidence before it, that there was a real chance that the appellant would be persecuted by reason of his being imputed with a political opinion opposed to the government, because he had been outside of Togo for three years, because the authorities would know that he left for World Youth Day and did not return, or because he had made an application for refugee status in Australia. 37 It is in respect of those parts of the second Tribunal's reasons, and its findings to which I have referred, that the challenge was brought to the Second Decision in the Federal Magistrates Court. The grounds of appeal to this Court are that the Federal Magistrates Court erred by failing to find, first, that the second Tribunal fell into jurisdictional error in the exercise of its discretion under s 416; and, secondly, in failing to find that the second Tribunal fell into jurisdictional error in its treatment of the evidence of Father Deto corroborating the appellant's evidence. 38 It is desirable to deal with those grounds separately. I shall deal, first, with s 416. The appellant contends that the second Tribunal's approach to the exercise of its discretion under s 416 was too narrowly focused on a search for error in the decision of the first Tribunal. While he accepts that the existence of such endeavour was not irrelevant, he contends that it was not exhaustive of the relevant considerations. He says that the second Tribunal's focus led it to fail to consider the fresh information, given by him to the second Tribunal in support of his claim, in the exercise of its discretion. The appellant characterised the key question as being whether, in considering the exercise of its discretion under s 416 of the Act, the second Tribunal was required to consider all, or only some, of the information presented to it that was additional to the information that had been presented to the first Tribunal. 39 The appellant says that, under s 416, the second Tribunal was required to consider all of the fresh information, but that it did not do so. Rather, it only considered the fresh information that it determined was relevant to possible errors in the reasoning of the first Tribunal. The appellant accepts that the second Tribunal properly took into account some of the fresh information provided in considering the exercise of discretion, namely, the evidence of character witnesses who attended the hearing before the second Tribunal and letters submitted to the Department from members of the community who stated that they believed the appellant was telling the truth. The appellant says that the error was that some of the fresh information that was provided by him to the second Tribunal was not considered by it in deciding whether or not to exercise the discretion under s 416. 40 The fresh information alleged not to have been considered was the fact that various ministers in the Togolese government were either relatives of his family or former family friends of his father, and the updated country information concerning the human rights situation in Togo. The basis for that contention is to be found in the structure of the second Tribunal's reasons. In its findings and reasons, the second Tribunal addressed the application of s 416 and said, specifically, that it had given careful consideration to the evidence of the witnesses and the psychologist and the personal references that were produced to the Department. 41 It then stated its conclusion as to the exercise of discretion under s 416, before referring, specifically, to the two classes of information that the appellant has claimed were not considered by the Tribunal in exercising that discretion. The appellant points to the fact that the references to that information come after the statement by the second Tribunal that, in accordance with s 416, it would take the First Decision to be correct. 42 The appellant accepts that the broad purpose of s 416 is to promote finality in decision-making and to relieve the Tribunal of the need to repeat a review that has already been conducted. However, the appellant contends that determining whether the case before the Tribunal is, in substance, a review that has already been conducted by an earlier Tribunal necessarily requires the Tribunal to consider all of the fresh evidence that is put before it and compare it to the evidence that was before the earlier Tribunal. The Minister's contentions proceeded on the assumption, without concession, that there is an implicit obligation for the Tribunal to have regard to all fresh information when exercising the discretion under s 416. 43 The critical matter in the First Decision was the first Tribunal's disbelief of the appellant's evidence that he had been in hiding in Aného between 2006 and 2008. It found that he was not in hiding, because he had claimed that he had completed a six month sociology course during that time. In the course of the hearing before the second Tribunal, a substantial amount of material was led to try to persuade it that the appellant should be believed when he claimed that he had not actually attended the sociology course. The second Tribunal said that it had considered that evidence. The second Tribunal stated that it had given careful consideration to the evidence of witnesses and the psychologist and the personal references that were produced to the Department, and that it then moved to consider whether it should accept the decision of the first Tribunal. 44 It is clear that the second Tribunal had regard to the new material submitted on behalf of the appellant that bore upon the critical finding that had been made by the first Tribunal. The second Tribunal did not refer expressly to updated country information or to the claims by the appellant and his advisors that various ministers were either relatives of his family or former family friends or people he used to meet regularly with his father. However, that was not necessary, because neither bore on the critical finding. The fact that some, but not all, material was identified at the point in its reasons when the second Tribunal said that it had given careful consideration to the evidence of the witnesses and psychologist, does not mean that it had not first had regard to the whole of the new material. The new material had already been referred to by the second Tribunal earlier in its reasons. It referred, specifically, to the material about which complaint is now made, when dealing with the response received from the appellant's advisors to the s 424A letter. That is to say, there is no reason to conclude from the structure of the second Tribunal's reasons that, in making a decision as to whether or not to exercise the discretion conferred by s 416, it had ignored the material to which it subsequently referred. 45 I do not consider that it has been established that any material was ignored or not considered by the second Tribunal before it decided that there was no factual or legal error or flaw in reasoning on the part of the first Tribunal. When one reads the second Tribunal's reasons as a whole, it is a fair inference to draw that the second Tribunal was informed by all of the new material, as well as its consideration of what had been before the first Tribunal, and it was simply saying that, absent legal or factual error or flawed reasoning, it was exercising its discretion to proceed in accordance with the discretion conferred by s 416. 46 The matters that were then referred to by the second Tribunal were factual elaborations on matters that had already been considered by the first Tribunal. They raised new factual issues that had not been considered by the first Tribunal and therefore fell outside the operation of s 416. It was necessary, therefore, for the second Tribunal to consider them and, if thought fit, make findings about their significance. That is the approach that the second Tribunal adopted. It does not follow from that that the second Tribunal had not had regard to the information to which it had already referred when exercising its discretion under s 416. 47 The new country information had no bearing on the credibility of the appellant, which underlay the decision of the first Tribunal. The updated country information certainly indicated that persons with a claimed political opinion may be badly treated in Togo. However, that was of no bearing so far as the appellant was concerned, since the second Tribunal had concluded that it would not accept the claims by the appellant that he had been in hiding at the relevant time. I do not consider there is any reason to infer that the second Tribunal did not have regard to the whole of the new information before exercising its discretion under s 416. Decision-makers commonly express their reasons sequentially. That does not mean that they decide each factual issue in isolation from the others. A decision-maker ordinarily reviews the whole of the evidence and considers all issues of fact before writing anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. 48 The second Tribunal referred in its reasons to the new information about which complaint is made, before embarking on its reasons for exercising the discretion under s 416. I do not consider that the Federal Magistrates Court made any error in rejecting the ground that the second Tribunal misdirected itself or asked itself the wrong question in relation to its approach to s 416. I am not persuaded that the appellant has demonstrated that the second Tribunal failed to take into account all of the new information in making its decision to exercise the discretion conferred by s 416. 49 The second ground concerns the treatment of the evidence of Father Deto. The appellant asserts that the sole and specific actuating reason for the second Tribunal, in making the Second Decision, to put less weight on the letter from Father Deto was simply that he described himself in his letter as a friend of Father Mensah. The appellant accepts that the threshold for establishing jurisdictional error in relation to the weight that is given to evidence is a high one. The appellant says, however, that the approach of the second Tribunal, in the way in which it decided not to give weight to the letter from Father Deto, exhibited irrationality and illogicality. 50 The appellant says that by describing Father Mensah as his friend and brother, Father Deto was simply making the obvious point that Father Mensah was not merely a fellow priest, but that he, Father Deto, regarded Father Mensah as his friend. The appellant contends that it was an innocuous salutation that simply set the context for the letter. That context, he says, is not surprising, or something that the appellant sought to hide from or downplay. Indeed, he says, the reference to the friendship supported his allegation that he was, in fact, in hiding with Father Deto. It would have been perverse if Father Mensah had decided to send him to hide with the priest if he were a complete stranger. 51 The appellant complains that what he characterises as a "completely innocuous salutation" was fastened upon by the second Tribunal and erected by it to a pinnacle of significance as the sole basis for giving less weight to the evidence of Father Deto. He says that the second Tribunal's conclusions were not based on the reference in the letter, together with other evidence. They were not based on a determination that the appellant's credibility had otherwise been damaged beyond redemption. He says that there was simply no logical or rational connection between the second Tribunal's conclusions and that single piece of evidence. 52 It is worth observing that the first Tribunal had done exactly the same in its treatment of the letters, in making the First Decision. It said that those letters, together with others, did not have sufficient weight to overcome its concerns with the appellant's evidence. On one view, that is the end of the matter, as far as s 416 is concerned. However, in any event, it seems to me that this ground is without substance. 53 It may well be that some decision-makers would not have had regard to the relationship that might have existed between Father Deto and Father Mensah as a basis for not giving full weight to the corroborative value of the letters. However, it is at least open to a decision-maker to say that there must be some doubt about the weight to be given to a typed letter provided by a friend of a priest who had been identified by the appellant as his uncle. It may be that there is some doubt about the relationship between the appellant and Father Mensah. Be that as it may, there is no doubt that they were closely connected. Even if not related by blood, they were, in effect, close family friends. It is not irrational or illogical, in my view, for a decision-maker to say that such a close family friend may be induced to provide support that is not entirely truthful. As I have said, not all decision-makers would necessarily do so. But that is not the question. 54 The question is whether or not it could be said that no rational person would have declined to give full weight to the letter on the basis stated by the second Tribunal. The second Tribunal's treatment of the evidence of Father Deto was a matter upon which reasonable minds might differ. The second Tribunal did not say that the letter could not corroborate the appellant's claims. It simply articulated its assessment of the evidence before it. The weight to be given to evidence is entirely a matter for the Tribunal. This ground is really an invitation to the Court to reach a different conclusion, in the assessment of the weight to be given to particular evidence, from that reached by the decision-maker in the form of the second Tribunal. I am not persuaded that there is any substance in this ground. It follows, in my view, that the appeal from the Federal Magistrates Court should be dismissed. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 27 August 2012