AAG16 v Minister for Immigration
[2018] FCCA 3145
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAG16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3145 |
| Catchwords: MIGRATION – Protection visa – whether any illogicality existed in tribunal’s reasoning – tribunal’s findings open to it – issue about jurisdictional fact – tribunal considered two letters on the basis of evidentiary weight – tribunal had regard to credibility findings – NAQG distinguished – application dismissed. |
| Legislation: Migration Act 1958, sub-ss.36(2)(a), (aa) |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| First Applicant: | AAG16 |
| Second Applicant | AAH16 |
| Third Applicant | AAI16 |
| Fourth Applicant | AAJ16 |
| Fifth Applicant | AAK16 |
| Sixth Applicant | AAL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 8 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 6 August 2018 |
| Date of Last Submission: | 13 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Counsel for the First Applicant: | Mr J Bayly |
| Solicitors for the First Applicant: | Victoria Legal Aid |
| Counsel for the Second Applicant: | Mr J Bayly |
| Solicitors for the Second Applicant: | Victoria Legal Aid |
| Counsel for the Third Applicant: | Mr J Bayly |
| Solicitors for the Third Applicant: | Victoria Legal Aid |
| Counsel for the Fourth Applicant: | Mr J Bayly |
| Solicitors for the Fourth Applicant: | Victoria Legal Aid |
| Counsel for the Fifth Applicant: | Mr J Bayly |
| Solicitors for the Fifth Applicant: | Victoria Legal Aid |
| Counsel for the Sixth Applicant: | Mr J Bayly |
| Solicitors for the Sixth Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Ms N Campbell |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 5 January 2016 and amended on 10 July 2018 is dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 8 of 2016
| AAG16 |
First Applicant
| AAH16 |
Second Applicant
| AAI16 |
Third Applicant
| AAJ16 |
Fourth Applicant
| AAK16 |
Fifth Applicant
| AAL16 |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the applicants contended that the Administrative Appeals Tribunal acted unreasonably, especially in its treatment of two letters addressed to the first applicant in which the first applicant was threatened with death. The applicants argued that the tribunal’s conclusion that the first applicant failed to satisfy the elements of s 36(2)(a) or s 36(2)(aa) of the Migration Act was legally unreasonable. The minister said that no jurisdictional error arose. The issue in this case was whether the tribunal fell into jurisdictional error on the grounds alleged.
Synopsis
For the reasons that follow, in my judgment the tribunal’s findings were open to it and it made no error in the way the applicants contended. I dismiss this proceeding and order the applicants to pay the minister’s costs.
Relevant procedural history
In a statutory declaration made on 19 February 2013 the first applicant set out his claims to protection. Other documentation recording his claims included the first applicant’s written submissions to the delegate, also dated 19 February 2013, his statutory declaration made 21 May 2013, his written submissions to the delegate dated 8 July 2013 and the first applicant’s submissions dated 8 May 2015.
On 30 June 2014 the minister’s delegate refused to grant the protection visa sought by the first applicant. The second, third, fourth, fifth, and sixth applicants claimed that they were entitled to protection visas on the grounds that they were members of the same family unit as the first applicant.
On 11 July 2014 the applicants applied for a merits review before the tribunal, then known as the Refugee Review Tribunal. The tribunal invited the applicants to appear before it at a hearing scheduled for 15 May 2015. The first applicant completed the hearing invitation form indicating that he would attend the hearing and that he required the assistance of an Urdu interpreter. The hearing was duly conducted on 15 May 2015. It commenced at 9:04am and ended at 10:31am.
Before addressing the way tribunal considered this matter, it is necessary to record the claims the first applicant made. He told the tribunal –
a)he was born in Karak, Khyber Pakhtunkhwa, Pakistan in 1968;
b)he was a citizen of Pakistan, a member of the Pashtun ethnic group and followed the Sunni Muslim faith;
c)his father lived in Islamabad, Pakistan;
d)before commencing employment in Australia, he held the following jobs –
i)between 1988 and 1995 he was employed at the Pakistani Foreign Office in Islamabad as a naib qasid (an envoy or messenger);
ii)between 1995 and 1999 he worked as a security guard for the Consul-General of Pakistan in Masshad, Iran;
iii)between 2000 and 2003 he worked at the Pakistani Foreign Office in Islamabad as a driver and security guard;
iv)between 2003 and 2007 he was employed as a driver for the Consul-General of Pakistan in Jalalabad, Afghanistan; and
v)between 2007 and 2008 he worked at the Pakistani Foreign Office in Islamabad as a driver, including for the Minister of State;
e)in 2008 he commenced work as a driver at the Pakistani High Commission in Canberra and performed that job until 4 January 2013;
f)while living in Australia, he travelled to Pakistan from 4 September 2010 to 28 December 2010 and again from 20 April 2012 to 11 May 2012;
g)in May of 2011, shortly after the death of Osama bin Laden, his father received phone calls at his home in Islamabad inquiring about the first applicant’s whereabouts;
h)in October of 2012 his father received a letter from the Tehrik-e-Taliban Pakistan (“TTP”) accusing the first applicant of being a spy and requiring the first applicant to attend at the TTP’s office in what was then the Orakzai agency in Pakistan’s federally administered tribal areas (now the Orakzai district of Pakistan) and that letter stated that if the first applicant did not comply with the TTP’s orders his family would be killed;
i)on 1 January 2013 the first applicant’s father reported the October letter to the police in Islamabad ‘so that there would be a record if they were harmed’ but the police did not give the first applicant’s parents protection;
j)the first applicant did not consider that the Pakistani government would be able to protect him from the TTP if he returned to Islamabad because, he said, the Pakistani authorities were ‘corrupt, inefficient and poorly trained and are unable and unwilling to provide protection to citizens like me’; and
k)in February of 2013, his father received a further letter from the TTP accusing the first applicant of ‘spying for America’ stating that the first applicant would be murdered.
In addition, the applicants adduced evidence before the tribunal in the nature of country information. That country information was to the following effect –
a)the TTP frequently killed persons accused of spying, often taping the accused’s ‘confession’ and subsequently executing by beheading, hanging or firing squad;
b)hundreds of innocent persons had been ‘killed by militants merely on the basis of suspicion even though they were not spies’ and it was not unusual for persons with grudges and ‘scores to settle’ to accuse their enemies of being spies;
c)the approach of the TTP in such cases was one of ‘killing the accused first and investigating the matter later’;
d)in the period following Osama bin Laden’s death in May of 2011, the TTP vowed to take revenge on the governments of Pakistan and the United States;
e)shortly before Osama bin Laden’s death, the TTP created a cell devoted to hunting down spies and it began executing alleged spies in the area around Karak, where the first applicant was born;
f)early in 2011, a ‘Taliban court’ operating out of the Orakzai agency executed a man for alleged spying;
g)the commander of the TTP in the Orakzai agency devised a range of barbaric mechanisms for killing alleged spies;
h)because of widespread ethnic violence, it was not safe for a Pashtun to live in Karachi; and
i)because of ‘sustained security and military counter-insurgency operations and retaliatory militant attacks’, it was not safe for anyone to live in Balochistan, Khyber Pakhtunkhwa or the federally administered tribal areas.
The applicants were represented before the tribunal by their solicitors, D’Ambra Murphy Lawyers. On behalf of the applicants it was submitted as follows –
a)the TTP had erroneously imputed to the first applicant certain political beliefs and actions in support of Pakistani and American security agencies, such as the Central Intelligence Agency or the Inter Services Intelligence (being the main intelligence agency in Pakistan);
b)because of these imputed beliefs and actions, the TTP threatened the first applicant with death;
c)in light of the country information detailing the atrocities committed by the TTP against alleged spies, there was a real risk that if the first applicant returned to Islamabad, the TTP would carry out the threats made against him; and
d)there was no area in Pakistan to which the first applicant could reasonably relocate.
It is necessary to set out precisely the letter dated 6 October 2012 (with emphasis in the original).
Taliban Movement of Pakistan
Orakzai Agency
Date: 06/10/2012
Mr [the first applicant], son of [the first applicant’s father]
According to our information you are working for the secret agencies of Pakistan and America. Previously you were spying in Iran then you came to Afghanistan via Pakistan.
You have been informed to attend our office, located at the Orakzai Agency, so that you can provide your argument.
Otherwise you and your family members will be murdered.
Taliban Movement of Pakistan
Sector of the Mishti Orakzai Agency
It is also necessary to set out precisely the letter dated 5 February 2013 (with emphasis in the original).
Taliban Movement of Pakistan
Orakzai Agency
Date: 05/02/2013
Mr [the first applicant] Son of [the first applicant’s father]
You have been informed to attend our office at Orakzai Agency so that you can provide your argument; otherwise we will act against you.
Our Mujahids have taken orders to find you and your family.
Spying for America carries the death penalty and you will be murdered.
Taliban Movement of Pakistan
Sector of the Mishti Orakzai Agency
On 6 December 2015 the tribunal decided to affirm the delegate’s decision not to grant the applicants the protection visas they sought. The following is a synthesis of the more important findings of the tribunal.
At paragraph 33 of its reasons the tribunal accepted that the fact of the first applicant being employed as a driver by the Pakistani government did not preclude the possibility that he could be or imputed to be a spy.
At paragraph 33 of its reasons the tribunal accepted that apparently innocent people have been executed by the Taliban in the tribal agencies in Pakistan on the basis that they were alleged to be spies.
At paragraph 33 of its reasons the tribunal referred to the submission of 8 July 2013, which stated that it was likely that the first applicant would have driven the Consul-General to meetings with security agencies or the Afghan government during his employment.
Also at paragraph 33 of its reasons, the tribunal considered that the first applicant had to drive the Consul-General to meetings at a United States army or marine base in Jalalabad and a United Nations compound.
At paragraph 33 of its reasons the tribunal accepted the first applicant’s evidence that he was required to take the Consul-General to different offices but did not know which offices they were or who the Consul-General was meeting.
At paragraph 33 of its reasons the tribunal found it difficult to accept that the first applicant would have been accused by the Pakistani Taliban of working for secret agencies in Pakistan or America on the basis of his employment with the Foreign Office.
At paragraph 36 of its reasons the tribunal stated that the first applicant said at the hearing that the letter of 6 October 2012 from the Taliban had been thrown under the door of the house and that the post was not delivered to their address in Islamabad. The tribunal put to the first applicant that his statutory declaration of 21 May 2013 stated that the second letter had been posted to his parents’ address in Islamabad. The first applicant said that the letter had been thrown under the door.
At paragraph 39 of its reasons the tribunal did not consider it credible that the first applicant would have attracted the attention of the Tehrik-e-Taliban Pakistan or the Pakistani Taliban because he worked for the Foreign Office in Pakistan as a security guard and driver in Iran, Pakistan and Australia or specifically because he worked as a driver at the Consulate-General in Jalalabad. The tribunal referred to the concession of the first applicant that the main function of the Consul-General in Jalalabad was to issue visas to Afghanis wishing to visit relatives in Pakistan.
At paragraph 39 of its reasons the tribunal accepted that the first applicant drove the Consul-General to meetings at a United States army or marine base but that he did not know which those offices were or who the Consul-General was meeting.
At paragraph 39 of its reasons the tribunal do not consider it credible that the first applicant would have been accused by the Pakistani Taliban of working for the secret agencies in Pakistan and America on the basis of his employment as a driver at the foreign office as he claimed.
At paragraph 40 of its reasons, with regard to the inconsistencies in the first applicant’s evidence, the tribunal did not accept that his father received three telephone calls from an unidentified person who he believed to have been from the Taliban asking where he was after Osama bin Laden was killed nor that, as his father claimed in his police report, his father received threatening telephone calls from unknown numbers for the previous year and a half.
In paragraph 40 of its reasons the tribunal accepted that the police report was made but the tribunal gave greater weight to the problems in the first applicant’s evidence than it did to the report of the two letters purporting to be from the Taliban.
In paragraph 40 of its reasons the tribunal did not accept the evidence that the first applicant had been threatened by the Taliban because they had accused him of working for secret agencies of Pakistan and America.
In Paragraph 41 of its reasons the tribunal did not accept that on the evidence before it there was a real chance that, if the first applicant was returned to Pakistan, he would be persecuted because he would be imputed by the Taliban with a political opinion in support of Pakistani and American security agencies.
As mentioned above the tribunal affirmed the delegate’s decision to not grant the applicants at the protection visas they sought.
In this court
By application filed on 5 January 2016 the applicants sought judicial review of the tribunal’s decision. The applicants originally cast the case in this court on the basis that the tribunal took into account irrelevant considerations and that in another respect the tribunal failed to take account of a relevant consideration. Those grounds were replaced by two grounds in the applicants’ amended application. It is useful to record the amended grounds in their entirety.
1.The second respondent (the Tribunal) failed to conduct the review of the decision of the first respondent’s delegate dated 6 September 2015 not to grant the applicants protection visas (the primary decision) required by ss 65 and 414 of the Migration Act 1958 (Cth) (the Act), in that its finding that it was not satisfied that the first applicant met the criteria for a protection visa was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
(a)The first applicant claimed to be entitled to a protection visa on the grounds that if he was required to return to the applicants’ home in Islamabad, Pakistan, then:
(i) there was a real risk that he would be persecuted by an organisation known as the Tehrik-e-Taliban Pakistan (the TTP) for reasons of:
1.1a political opinion in support of the governments of Pakistan and the United States that had been imputed to him by the TTP; and/or
1.2his membership of a particular social group comprising persons suspected of having spied on behalf of or otherwise supported the governments of Pakistan and the United States; and
(ii) the government of Pakistan would be unwilling or unable to protect the first applicant from persecution by the TTP.
(b)The second to sixth applicants claimed to be entitled to protection visas on the grounds that they were members of the same family unit as the first applicant.
(c)The Tribunal found that apparently innocent people had been executed by the TTP on the basis that they were alleged to be spies.
(d)The Tribunal concluded that it was not credible that the first applicant would have been mistakenly accused by the TTP of having spied on behalf of or otherwise supported the governments of Pakistan and the United States.
(e)The conclusion referred to at paragraph (d) proceeded from an implicit generalisation that the TTP does not ordinarily mistakenly accuse innocent persons of spying on behalf of or otherwise supporting the governments of Pakistan and the United States.
(f)The conclusion referred to at paragraph (d) above and the generalisation referred to at paragraph (e) above were manifestly irrational and illogical in light of the finding referred to at paragraph (c) above.
2.The Tribunal failed to conduct the review of the primary decision required by ss 65 and 414 of the Act, in that it failed to make findings of fact that it was required to make.
(a)The first applicant refers to and repeats particulars 1(a) and 1(b) above.
(b)In support of their claims, the applicants placed before the Tribunal two documents that, if authentic, contained death threats made by the TTP against the first applicant because of the imputed political opinion described at paragraph 1(a)(i)1.1 above and/or the first applicant’s membership of the particular social group described at paragraph 1(a)(i)1.2 above.
(c)The Tribunal failed to make any finding as to whether it was satisfied that the documents referred to at paragraph 2(b) above were authentic.
Ground one
Under the first ground the applicants focused on paragraphs 33, 36, 39, 40 and 41 of the tribunal’s reasons. It is useful to record the applicants’ key written submissions in respect of ground one. They said that the tribunal fell into jurisdictional error in two distinct but interrelated ways. They put the case as follows[1] –
15.1First, the Tribunal’s finding that that it was not ‘credible that [the first applicant] would have been accused by the Pakistani Taliban of working for the secret agencies of Pakistan and America on the basis of his employment as a driver at the Foreign Office’ proceeded from an implicit generalisation to the effect that the TTP does not ordinarily mistakenly accuse innocent persons in the first applicant’s position of spying or impute to them political opinions they do not in fact hold. In light of the Tribunal’s findings with respect to the country information relied on by the applicants, this generalisation was manifestly irrational. Because the Tribunal’s generalisation was one of the key logical steps preceding its conclusion that the first applicant had not in fact been accused of spying (and thus had not been imputed with the imputed political opinion and did not belong to the particular social group to which he claimed to belong), the Tribunal’s ultimate conclusion that the first applicant was not entitled to a protection visa was infected by the extreme irrationality of the generalisation and was thus tainted by jurisdictional error.
15.2Second, the Tribunal failed to make any finding as to whether it was satisfied that the Taliban letters were authentic. Making such a finding was a condition precedent to the exercise of the Tribunal’s jurisdiction to review the decision of the first respondent’s delegate not to grant the applicants protection visa; the Tribunal’s failure to make it thus constituted jurisdictional error. In this regard, the present case is relevantly indistinguishable from that considered by Allsop J (as his Honour then was) in NAQG v Minister for Immigration and Multicultural and Indigenous Affairs.
[1] Applicants’ outline of submissions (10 July 2018)
Relying on the High Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[2] and on the Full Court’s decision in Gill v Minister for Immigration and Border Protection,[3] the applicants contended that the tribunal’s jurisdiction was not lawfully exercised where it purported to reach a state of satisfaction about a jurisdictional fact and it did so in a manner that was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. The applicants pointed to the observations of the Full Court in SZOOR v Minister for Immigration and Citizenship[4] to the effect that no jurisdictional error will be exhibited where a decision maker gives reasons but those reasons do not reveal illogical or irrational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logical rationality appear in the reasons given. The applicant then contended that the tribunal made an irrational generalisation. They said the following[5] –
The Tribunal explicitly found that ‘apparently innocent people have been executed by the Taliban in the travel agencies in Pakistan on the basis that they were alleged to be spies.’ Nevertheless, it proceeded to find that because the applicant ‘did not know which offices these [ie the offices in Afghanistan to which he was driving the Consul-General] were or who the Consul General was meeting’, it was not ‘credible that [the first applicant] the would have been accused by the Pakistani Taliban of working for the secret agencies Pakistan and America on the basis of his employment as a driver at the Foreign Office’. The finding contains an implicit generalisation that the TTP does not, in the ordinary course of events, mistakenly accuse ‘innocent’ persons in the position of the first applicant – ie persons who have not knowingly assisted the governments of Pakistan and the United States and – of working for the separate agencies of the Pakistani and United States governments. This generalisation was wholly contradicted by country information that the tribunal had found to be accurate was not supported by any other finding of fact made by the tribunal. It follows that the generalisation was irrational in the sense referred to in the authorities.
[2] [2004] HCA 32 (at [37] and [38])
[3] (2017) 250 FCR 309 (at [59])
[4] (2012) 202 FCR 1 (at [3])
[5] Applicants’ outline of submissions (10 July 2018) 13 [22]
Having characterised that generalisation as the “irrational generalisation” the applicants submitted that the irrational generalisation tainted the tribunal’s jurisdictional fact finding with irrationality causing the tribunal to fall into jurisdictional error. The applicants’ counsel wrote as follows[6] –
[6] Ibid 14 [23]
From its irrational generalisation, the Tribunal proceeded to reason that the first applicant would not have been accused of spying and that he therefore had not been accused of spying (and thus did not meet the criteria for a protection visa because he did not belong to the particular group to which you claim to belong or carry the imputed political opinion. The generalisation was thus indispensable step that led the tribunals finding with respect to the ultimate jurisdictional fact that it was put in issue by the applicant’s claims. Because it was manifestly rational, the generalisation dated the tribunal’s jurisdictional fact finding with irrationality and because the tribunals are full into jurisdictional error.
(citation omitted)
In response the minister relied on the well-known observations of Crennan and Bell JJ of the High Court in Minister for Immigration and Citizenship v SZMDS[7] in formulating the test of illogicality and irrationality. The minister argued that according to Minister for Immigration and Citizenship v SZRKT,[8] SZOOR v Minister for Immigration and Citizenship[9] and Minister for Immigration and Border Protection v SZUXN[10] extreme illogicality must be shown, and no such extreme illogicality was exhibited on the facts of this case. In paragraph 16 of Ms Campbell of counsel’s carefully written submissions on point she put the position in the following terms –
The Tribunal’s finding is not manifestly irrational in the sense required. There was, at least, some evidence to support the finding that it was not credible that the First Applicant would have been accused by the Pakistani Taliban of working for the secret agencies of Pakistan and America on the basis of his employment as a driver at the Foreign Office. The Tribunal recorded at [39] that the First Applicant had concluded that the main function of the Consulate General in Jalalabad was to issue visas to Afghans wishing to visit relatives in Pakistan. The Tribunal accepted that the First Applicant drove the Consul General to meetings at a United States army or marine base in Jalalabad, and to a United Nations compound and different offices, which he did not know or who the Consul General was meeting. It was on this basis that the Tribunal rejected the claim that the First Applicant would have been accused by the Pakistani Taliban of working for the secret agencies of Pakistan and America on the basis of his employment as a driver at the Foreign Office. The Tribunal also found, based upon the inconsistent evidence before it, that the First Applicant was not threatened by the Taliban because he was alleged to be a spy (at [40]), a finding which formed part of its reasons why there was no real chance that the First Applicant would be persecuted by the Taliban for an imputed political opinion. It was reasonably open to the Tribunal to make these findings in light of the material before it and the findings did not lack probative evidence. This was the case despite having found earlier at [12] that “apparently innocent people had been executed by the Taliban in the tribal agencies in Pakistan on the basis that they were alleged to be spies”. The Court should not be satisfied that the finding was irrational, illogical or unreasonable.
[7] (2010) 240 CLR 611 (at [130]-[131])
[8] (2013) 212 FCR 99
[9] (2012) 202 FCR 1
[10] [2016] FCA 516
In my view the tribunal’s finding was in fact open on the evidence. The tribunal accepted the evidence adduced before it to the effect that the first applicant drove the Consul-General to meetings at a United States army or marine base in Jalalabad. It also accepted that the first applicant drove the Consul-General to a United Nations compound and that the first applicant did not know who the Consul-General was meeting. The tribunal rejected the first applicant’s claim that the Pakistani Taliban would have accused him of working for secret agencies by reason of his activity as a driver. That finding was open to the tribunal. Further, the tribunal found that the first applicant was not threatened by the Taliban for being a spy. Again, that finding was open. It seemed to me that there was no illogicality in reaching those two findings of fact even though the tribunal stated at paragraph 12 of its reasons that the Taliban apparently executed innocent people on the basis that they were alleged to be spies. It seemed to me that there was no illogicality in the tribunal’s stating at a macro level that innocent people had been executed by the Taliban for being spies yet at a micro level the tribunal’s also stating that the first applicant’s activities as a driver for the Consul-General did not mean he will be accused of working for secret agencies. I do not detect any flaw in the tribunal’s logic on that account. I reject the applicants’ contentions about there being what the applicants’ counsel called an “irrational generalisation”. In my view there was no merit in ground one.
Further, the tribunal’s reasoning did not exhibit extreme irrationality as the authorities require an applicant to make out.
Ground one should be dismissed.
Ground two
Under this ground the applicants took issue with the tribunal’s treatment of the two letters threatening the first applicant with murder. In essence, the applicant said that the tribunal was required to make factual findings with respect to the authenticity of those letters. Instead they said the tribunal omitted to make any finding about authenticity and dealt with the letters on the basis of attaching weight to them. The applicants said that the tribunal failed to make a finding of fact the making of which was a precondition to the lawful exercise of its jurisdiction. They called in aid the decisions of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS,[11] Minister for Immigration and Citizenship v SZRKT,[12] SHKB v Minister for Immigration and Multicultural and Indigenous Affairs,[13] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[14] and NAQG v Minister for Immigration and Multicultural and Indigenous Affairs.[15]
[11] (2013) 230 FCR 431
[12] (2013) 212 FCR 99
[13] [2004] FCA 545
[14] (2003) 236 FCR 593
[15] [2004] FCA 1631
In response, the minister focused on one of the principal authorities on which the applicants relied, namely NAQG v Minister for Immigration and Multicultural and Indigenous Affairs.[16] It must be said that the applicants on the one hand and the minister on the other addressed that case but in reliance upon different observations in the reasoning of Allsop J, as the chief justice then was. It seemed to me that Mr Bayly of counsel for the applicants correctly distilled the factual setting of that case in paragraph 25 and following of his written submissions, which I reproduce hereunder –
… Because formation of the requisite state of satisfaction is a condition precedent to the exercise of the Tribunal’s jurisdiction will – a ‘jurisdictional fact’ – the Tribunal’s jurisdiction is not lawfully exercised if it purports to reach that set a satisfaction in a manner that is ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds.’
[16] [2004] FCA 1631
Mr Bayly contended that it was essential for the tribunal to have made an express finding about the authenticity of the letters prior to the tribunal engaging in the task of attributing weight to the letters.
In response, Ms Campbell relied on a different aspect of the reasons of Allsop J. Ms Campbell relied on a passage in paragraph 17 his Honour’s reasons, which read as follows –
… If no conclusion was reached as to the positive any documents that may be no procedural fairness deficiency; however, the issue is still with tribunal competitors jurisdictional task arises if it can be seen to have decided act without addressing material before it which, on its face, contradicted the conclusion that it was otherwise minded to draw in which it expressed.
Ms Campbell argued that it could not be said in this case that the tribunal decided a fact without addressing the material before it that, on its face, contradicted the conclusion that it was otherwise minded to draw and which the tribunal expressed. Ms Campbell said that the tribunal addressed material before it that on its face contradicted the contention about threats by the Taliban. She said that was a different factual scenario to the facts in NAQG because in NAQG there was an absence of any finding about documentation. In this case, Ms Campbell said the tribunal referred to the letters then addressed them as to weight having regard to credibility findings. It cannot be said that this case was on all fours with the factual situation in NAQG.
Well-argued by Mr Bayly, as both grounds were, nevertheless they failed.
Conclusion
I dismissed this application in order the applicants to pay the minister’s costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 2 November 2018
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
9
2