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ANF16 v Minister for Home Affairs

ANF16 v Minister for Home Affairs

Case [2019] FCCA 150 12 February 2019

Statutory Construction

Administrative Law

Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

ANF16 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 150

Catchwords:
MIGRATION – Procedural fairness – whether Tribunal obliged to afford invitation to applicant to attend a second hearing by reason of reference in Reasons to country information which was not discussed at hearing – applicable principles – whether country information raised new issue or was germane to existing live issue – more recent information confirmatory of Tribunal’s findings on material questions of fact – no want of procedural fairness – whether decision illogical or irrational – whether no logical connection between evidence and inferences or conclusions drawn by Tribunal – applicant mischaracterised findings of Tribunal – decision not affected by jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424, 425, 430, 474, 476, 499

Cases cited:

Minister for Immigration and Border Protection v Stretton 237 FCR 1

Applicant:

ANF16

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 471 of 2016

Judgment of:

Judge A Kelly

Hearing date:

2 October 2017

Date of Last Submission:

2 October 2017

Delivered at:

Melbourne

Delivered on:

12 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr McBeth

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Ms Lucas

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The amended application filed on 4 September 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 471 of 2016

ANF16

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By amended application filed 4 September 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection visa pursuant to s 65(1)(b) of the Migration Act 1958 (Cth) (Act).
For the reasons that follow, I have concluded that the application must be dismissed. In substance, I do not consider that the Tribunal was obliged to reconvene for the purposes of giving consideration to the further country information as contended by the applicant. Nor do I consider that its conclusion as to the level of risk in the Upper Kurram Agency, Pakistan, was irrational or illogical in the requisite sense.

Background

The applicant, a Pakistani national aged 30 years, was born in Jan Khan, Parachinar, Kurram Agency. He is of Pashtun ethnicity and Shia Muslim faith, having first arrived in Australia on 9 August 2012 as an irregular maritime arrival.
On 19 December 2012, the Department received the applicant’s application for a Protection (Class XA) visa which was prepared with the assistance of a registered migration agent.
By a statutory declaration made on 8 December 2012, the applicant claimed to fear kidnapping, detention, physical assault and death if returned to Pakistan. The basis of his claim was that he feared harm from the Taliban due to his religion as a Shia Muslim, his Pashtun ethnicity and his actual and perceived opposition to the Taliban. He declared that his family ran a tea house in Parachinar. The applicant claimed that in 2007 the Taliban had blocked the roads around Parachinar, including the only road between Parachinar and Peshawar and that the effect of the roadblock was that there were no supplies of food and medicine. He claimed to have received telephone threats from the Taliban in 2009, and to having left Pakistan for the United Arab Emirates as a result. In his absence, a bomb blast had destroyed his family’s tea house. Upon his return to Pakistan he had been too scared to travel to Parachinar and moved to Islamabad from where he made arrangements to travel to Australia. The applicant’s principal fears of harm were claimed to be by reason of his religion, the risk of harm from the Taliban and that the authorities would be unwilling to help him.
The applicant’s statutory declaration detailed: (a) his birth and childhood in Jan Khan village, Zeran, Kurram Agency, Parachinar in Pakistan; (b) his language skills, secondary and tertiary education; (c) his family circumstances and ownership of a tea house; (d) the Taliban’s blockades on the roads around Parachinar, which meant limited supplies for the area; (e) the conduct of the Taliban to check Shia Muslims’ identities, threaten those suspected of opposition and kidnap/kill suspects; (f) the personal threats the applicant had received in March 2009, which led to his subsequent departure to the United Arab Emirates to work with his brother; (g) the refusal from the UAE to renew his passport after three years; (h) a bomb blast near the applicant’s family tea house, and other frequent bomb blasts in the Parachinar area; (i) the difficulty and fear the applicant felt on return to Parachinar; (j) his travel to Islamabad and organisation of travel arrangements to Australia; and (k) the inability or refusal of authorities to protect Shia Muslims throughout Pakistan.
The applicant stated that it would not be possible for him to relocate safely anywhere in Pakistan.
The applicant claimed to fear persecution from the Taliban based upon:
a)his Shia religion;
b)his membership of the particular social group of young male Shia Muslims;
c)his actual and imputed anti-Taliban political opinion (having been personally threatened by the Taliban);
d)his status as a returning failed asylum seeker.
In addition to those Convention-based grounds, the applicant sought complementary protection as a result of the risk of harm from the Taliban.
On 4 October 2013, the applicant was requested to provide identity documents and these were provided on 19 November 2013.
On 14 October 2013, the applicant attended an interview to discuss his visa application and claims for protection.
On 22 April 2014, the delegate refused the visa application. The delegate was not satisfied that the applicant was a person to whom Australia had protection obligations. The delegate’s Decisional Record gave detailed reasons for the decision to refuse the application. The delegate found the applicant to have made inconsistent claims, and did not believe his claim that the family tea house had been targeted or that the applicant had received threatening phone calls.
Whilst the delegate was satisfied that the applicant had a well-founded fear of persecution as a Shia Muslim in the FATA[1] area, the delegate found that the applicant could relocate to areas within Pakistan where there was no more than a remote chance of persecution.
[1] Federally Administered Tribal Areas of Pakistan (FATA).
On 7 May 2014, the applicant lodged, with the assistance of his migration lawyers, an application for a review of the delegate’s decision by the then Refugee Review Tribunal.
On 3 July 2015, the applicant was invited to appear before the Tribunal for a hearing on 10 August 2015.
On 5 August 2015, the applicant’s migration agent filed a submission, which set out his claims for protection. In Section 5 of those submissions, the applicant’s lawyers submitted that in view of the situation in the Kurram Agency, internal relocation was likely to be the determinative issue. Detailed submissions on relocation then followed.
In his statutory declaration for submission to the Tribunal, the applicant sought to explain inconsistencies between his evidence provided at his visa interview and the application in relation to the bombing of the family’s tea shop and the threatening phone calls. To explain the inconsistencies, the applicant relied on his poor mental state when the entry interview was conducted. The applicant also claimed it would not be possible to safely relocate in Pakistan, as the need to show his ID card for housing and job opportunities would expose him as a Shia Muslim.
The applicant appeared at the hearing on 10 August 2015, together with his migration agent as representative and a Pashto interpreter. The hearing was of ~3 hours duration.
Following the Tribunal’s hearing, on 24 August 2015, the applicant was invited to comment or respond to information that during his arrival interview he failed to mention that he received any threatening calls whilst in Pakistan. In a response dated 3 September 2015, the applicant’s lawyers again claimed that his mental health and the effects of his traumatic experience, compounded by his detention thereafter, were responsible for the inconsistencies in his evidence. The response by the applicant’s lawyers also addressed the issue of country information in some further detail and contested that the country information which had been referred to by the Tribunal at the hearing supported a conclusion that the security situation in the Kurram Agency had improved. Section 3 of that post-hearing submission addressed that contention in detail.[2] The submission concluded:
[2] From pp 3-12 of the 12 page submission.
This information, and the other information cited above from the SATP ‘2015 Pakistan Assessment, is also relevant in considering whether [the applicant] could relocate within Pakistan. In our submission, it indicates that the threat from extremist groups across Pakistan is such that relocation is not a relevant option for [him]. Nor is relocation reasonable in [his] circumstances, in view of the factors elaborated in our pre-hearing submission and in oral submissions at the hearing. Accordingly, we submit that [the applicant] has a well-founded fear of persecution in Pakistan.
If there are any further matters we can address, please do not hesitate to contact . . .
This submission did not request a further hearing before the Tribunal.
On 17 December 2015, the applicant’s representative sent an email to the Tribunal addressing a bomb blast that had occurred on 13 December 2015 which had been detonated in a market place in Parachinar, killing 20 Shia Muslims. The email stated that the applicant’s brother and nephew had been injured and that a sectarian group, Lashkar-e-Jhangvi, had claimed responsibility for the attack. The email concluded: “In view of this new information and that previously provided, we submit that as a Shia Muslim from Parachinar, [the applicant] has a well-founded fear of persecution and is in need of protection.” Attached to the email were copies of articles from The Guardian and The Tribune relating to the incident. Relevantly, the email did not request a further hearing before the Tribunal.
On 5 February 2016, the Tribunal made a decision affirming the decision of the delegate not to grant the applicant a Protection visa. The Tribunal provided a statement of reasons for its decision (Reasons).

Procedural History

On 10 March 2016, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 5 February 2016.
The applicant also affirmed an affidavit to which he exhibited a copy of the Tribunal’s decision record but which adduced no further evidence in support of his application for judicial review.
By a Response filed on 22 March 2016, the Minister contended that the application should be dismissed on the ground that the Tribunal’s decision under review was not affected by jurisdictional error.
On 3 August 2016, orders were made, by consent, that the application be listed for final hearing. By this order, the applicant was afforded an opportunity to file an amended application with proper particulars of the grounds of review, together with a supplementary court book and written submissions in support of their application. On 4 September 2017, orders were made extending the time for the applicant to file this material.
On 4 September 2017, the applicant filed an amended application, affidavit and written submissions. The affidavit sworn by the applicant’s lawyer exhibited a series of documents constituting country information upon which reliance was placed, without objection.
The Minister’s submissions filed on 22 September 2017 were responsive to the applicant’s submissions and the country information exhibited to the affidavit of the applicant’s solicitor.

Tribunal decision

The Tribunal’s Reasons summarised the background of the application at [1]-[4] and identified and discussed the criteria for the grant or refusal of a Protection visa under s 36 of the Act: Reasons, [5]-[18].
The Tribunal accepted that the bomb blast at the family’s tea house had occurred as claimed in 2009, but did not accept that the tea house had been explicitly targeted in that bombing, instead finding that it formed part of more random generalised violence in the area. The Tribunal further found that in light of the change in conditions in Parachinar since the 2009 incident, there was not a real chance that the applicant would be seriously harmed in any similar random act of generalised violence in the reasonably foreseeable future: Reasons, [34], [66].
The Tribunal did not accept that the applicant had received three threatening calls over a ten-day period in 2009 which had led him to leave for Abu Dhabi. The Tribunal declined to accept this evidence by reason that the applicant had failed to mention this claim during his entry interview: Reasons, [29]-[34].
The Tribunal found that the applicant was not a target of the Taliban but had left Parachinar for Abu Dhabi on account of the generally unsafe situation in Parachinar: Reasons, [35].
The finding that the applicant did not face a serious risk of harm from a random attack such as that which had occurred at the family’s tea house was predicated upon the change in the security situation in Parachinar since 2009: Reasons, [34], [66].
The Tribunal said that it had carefully considered the applicant’s evidence, the submissions made on his behalf and independent evidence: Reasons, [39]. In its Reasons, the Tribunal addressed the submissions made by the applicant’s lawyer concerning DFAT information including that which was addressed at [37]. The Tribunal noted that in a DFAT Thematic Report dated April 2015, reference was made to an improved situation in the Kurram Agency, a high degree of generalised violence in FATA and a moderate degree of sectarian violence in some areas, with a volatile situation in FATA due to ongoing counterinsurgency operations by the Pakistani security services. The Report also noted that many internally displaced persons had returned to the Kurram Agency. The Tribunal examined the scale of the conflict between Shia and Sunni Bangash in the Kurram Agency and concluded that when the applicant had left Pakistan in 2009 to go to the UAE, his village in Parachinar and surrounding areas were subject to considerable violence: Reasons, [40]. The Tribunal recorded that it had discussed with the applicant that the security situation had improved and that there had been some stabilisation in recent years: Reasons, [41]. The Tribunal proceeded to identify the independent evidence which it had relied upon in reaching that conclusion: Reasons, [42]-[49]. The Tribunal then addressed the post-hearing submissions of the applicant’s lawyer which:
a)had dealt with country information: Reasons, [50]-[53];
b)had addressed the bomb blast incident of December 2015: Reasons, [54]-[56].
The Tribunal declined to extrapolate from the bomb blast incident of December 2015 that this was indicative of the security situation in Parachinar generally, the Kurram Agency more widely, or as indicating that the truce struck in 2013 had been undermined.
Having regard to its consideration of the evidence, including the country information, and that the applicant’s brother had also returned from the UAE to live with his family (who had not experienced any serious harm), the Tribunal concluded that the chance of the applicant suffering serious or significant harm to be remote: Reasons, [56], [66].

Judicial Review

Being a privative clause decision[3], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[4] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[5]
[3] Section 474(2).
[4]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[5] Sub-s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[6] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[6]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Certain criteria for Protection visas are those set out in s 36 of the Act.

Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[7] Minister for Immigration and Citizenship v SZMDS.[8]
[7](2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ).
[8](2010) 240 CLR 611, [40] (Gummow A-CJ, Kiefel J), [102] (Crennan and Bell JJ).
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[9] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[10] It follows that if the criteria for the grant of a Protection visa are satisfied, the Tribunal must grant the application and if not so satisfied, the visa application must be refused.
[9]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[10] Section 65(1)(a).
The amended application advanced two grounds of review.

Ground 1 – failure to convene further hearing

Ground 1, as amended, reads:
The decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to give the applicant a meaningful opportunity to give evidence and present arguments relating to issues arising in the review as requires under s 425 of the Migration Act.
Particulars
a)The Tribunal put to the applicant country information derived from a 2015 DFAT report.
b)After the Tribunal hearing, in January 2016, a new DFAT report was released which differed from the 2015 DFAT report in material respects.
c)It was an issue in the review that DFAT had assessed the risk of generalised and sectarian violence in Kurram Agency as low.
d)The Tribunal did not convene an additional hearing to enable the applicant to give evidence and present arguments relating to the issues arising from the new DFAT report.
e)The Tribunal relied on the 2016 DFAT report in affirming the decision.
Ground 1 raised a contention that the Tribunal had committed jurisdictional error in failing to invite the applicant to a second hearing in circumstances where it had relied upon more recent DFAT country information that had been promulgated after the hearing which the applicant had attended in August 2015. The Minister responded that the applicant had mischaracterised the content of the country information. It was further submitted that there was no material inconsistency between that which had been discussed with the applicant at the hearing, the subject of submissions by his migration lawyer and the country information which had been promulgated by DFAT after that hearing.
The applicant submitted that the Tribunal’s interpretation of a DFAT assessment of generalised and sectarian violence in the applicant’s home region issued after the hearing had been conducted was a crucial issue in the finding that the applicant did not face a real chance of serious harm or a real risk of significant harm. The Minister submitted that this mischaracterised the issue and that the issue before the Tribunal had been whether the applicant was at risk of serious or significant harm in his home region due to sectarian and generalised violence.
The Tribunal referred to s 499 of the Act and to Ministerial Direction No 56 (Direction No 56): Reasons, [19]. By sub-s 499(1), the Minister may give written directions to a body having functions or powers under the Act about the performance of those functions and the exercise of such powers. A body must comply with such a direction: sub-s 499(2A). Direction No 56 is such a written direction. The Tribunal is such a body.
Direction No 56 relevantly provides:
Where [DFAT] has prepared a country information assessment expressly for protection status determination processes, and the assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
Having regard to the imperative language of Direction No 56, failure to take into account a report falling within that Direction would constitute error which may be characterised as jurisdictional in nature.
The Tribunal’s Reasons cited Ministerial Direction No 56 and stated that it had taken account of policy guidelines prepared by the Department of Immigration, referred to as PAM3 Refugee and humanitarian – Complimentary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines. The Tribunal also stated that, to the extent relevant, it had taken account of relevant country information prepared by DFAT expressly for ‘protection status determination purposes’.
The report entitled “DFAT Thematic Report – Shias in Pakistan”, dated 14 April 2015 (2015 DFAT Report), included at cll 1.1 and 1.3 respectively, notations that it had been prepared by DFAT for protection status purposes only and set out the text of Direction No 56 above at [45]. The applicant’s submissions dated 5 August 2015 contained reference to this report. The applicant’s submissions in relation to this report were addressed by the Tribunal’s Reasons at [37]. The Reasons at [36]-[53] considered whether the applicant faced a real chance of serious harm and in doing so, analysed that 2015 DFAT report, the applicant’s submissions, other country information and the post-hearing submissions of the applicant’s migration lawyers.
A further report entitled “DFAT Thematic Report – Shias in Pakistan”, dated 15 January 2016 (2016 DFAT Report), included at cll 1.1 and 1.3 respectively, the same notations as were made in the 2015 DFAT Report and stated (at cl 1.5) that it replaced that report.
The applicant submitted that the 2016 DFAT Report had been issued on 15 January 2016 (that is, after the Tribunal hearing held on 10 August 2015), and before the Tribunal’s decision made on 5 February 2016. It was submitted that the Tribunal had failed to provide the applicant a copy of the 2016 DFAT Report or to invite the applicant to a second hearing after that report had been issued. The applicant relied upon AQN15 v Minister for Immigration and Border Protection,[11] as illustrating the proposition that some Tribunals had previously taken the view that it was appropriate to invite an applicant to attend a second hearing in such circumstances. So much may be accepted.
[11] [2016] FCCA 58, [8].
Attention was drawn to s 425 which requires a Tribunal to invite an applicant to a hearing, give evidence and present arguments arising in relation to the decision under review. It was submitted that the obligation prescribed by s 425 was not a ‘one-off’ obligation and extended to require that the Tribunal provide a further hearing in relation to issues that emerged after the first hearing had been held. The Minister agreed in the obligation imposed by s 425 to conduct a hearing thereby affording the applicant an opportunity to present material on the issues arising in relation to the decision under review. The Minister also accepted that any new issues arising after the Tribunal hearing would generate new obligations on it to conduct a further hearing, citing SZHKA v Minister for Immigration and Citizenship;[12] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[13]
[12] (2008) 172 FCR 1.
[13] (2006) 228 CLR 152, [32].
In SZBEL,[14] the Court held it to be fundamental that, where the rules of procedural fairness applied, “the party liable to be directly affected by the decision is to be given the opportunity of being heard.” The Court further held that this “would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” The Court drew attention to the text of s 424 that the invitation to attend a hearing was to enable the applicant to present evidence and make arguments in relation to the issues arising on the decision on review. In amplification of that obligation the Court held that:[15]
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal . . . the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. . . unless some other additional issues are identified by the Tribunal . . . (emphasis added)
[14] (2006) 228 CLR 152, [32].
[15] (2006) 228 CLR 152, [35].
Reliance was placed upon SZHKA v Minister for Immigration and Citizenship,[16] in which the Full Court held, by majority, that following a successful application for judicial review, a Tribunal could only exercise the decision-making function after having invited the applicant for review to a hearing pursuant to s 425. Contrastingly, Besanko J held[17] that in cases of remitter following a successful application for judicial review, s 425 did not require in every case that a second invitation to appear must be given. His Honour further held[18] that if a new issue in relation to the decision under review emerged after the first hearing then a second invitation to appear must be given. In reaching that decision, Besanko J considered that the scope of s 425 was to be construed in light of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[19] where the Court held that:
. . . unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
See also SZTIS v Minister for Immigration and Border Protection [2017] FCA 545, [69] (Burley J).
[16] (2008) 172 FCR 1.
[17] (2008) 172 FCR 1, [90]-[97].
[18] (2008) 172 FCR 1, [103].
[19] (2006) 228 CLR 152, [36]-[37].
While the appeal in SZHKA involved consideration of the operation of s 425 on remitter following a successful judicial review, I consider that those observations are instructive in the present context.
In Minister for Immigration and Citizenship v SZKTI,[20] the Court considered the scope of the obligation under s 425 to invite an applicant to a further hearing. In accepting that matters may arise which required an invitation to a further hearing, it held that whether an issue must be raised with an applicant for the purposes of a hearing under s 425(1) would depend upon the circumstances of each case. In particular, the Court recognised that a distinction was to be drawn between new evidence bearing upon an extant issue and an additional issue which would trigger an obligation to invite an applicant to a further hearing.
[20] (2009) 238 CLR 489, [51].
The application of the principles stated in SZKTI is illustrated by the differential results of later decisions.
In ABV16 v Minister for Immigration and Border Protection,[21] Bromberg J held that a Tribunal had been obliged to conduct a further hearing in circumstances in which it had come into knowledge that a Chinese policy was no longer in force with the result, as his Honour held, that the Tribunal was obliged by s 425 to notify the appellant of the change in policy and invite further evidence and submissions at a hearing. Of importance to the conclusion in ABV16’s appeal was that the change in Chinese policy had given rise to a new issue.
[21] [2017] FCA 184, [31], [59].
The scope and operation of the obligation under s 425 to invite an applicant for review to appear to present material relating to the issues arising in relation to the decision under review was re-examined in ACE15 v Minister for Immigration and Border Protection.[22] By reference to authority[23] Bromberg J observed that considerations of fairness and practical injustice served as guiding principles in the determination of precisely what may constitute the issues arising in relation to a decision under review and what level of specificity was to be expected of a Tribunal in issuing such an invitation. His Honour endorsed the approach that for the purposes of s 425:
. . . “issues”, relevantly, are the matters in the case about which the Tribunal holds reservations, which are sufficiently substantial to be dispositive of a claim. I followed that approach to the framing of the relevant issue in ABV16, and I see no reason to depart from that course in the present proceeding.
See also AEN15 vMinister for Immigration and Border Protection.[24]
[22] [2017] FCA 1054, [57].
[23][2017] FCA 1054, [58] citing: SZMUF v Minister for Immigration and Citizenship[2009] FCA 182, [22] (Flick J); VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 82, [28] (Allsop J, Gyles and Conti JJ agreeing on this point); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam(2003) 214 CLR 1, [37]-[38] (Gleeson CJ).
[24] [2018] FCA 509 (Bromberg J).
Some months before the present hearing, in SZVYG v Minister for Immigration and Border Protection,[25] Bromwich J rejected a submission that the Tribunal ought to have invited an applicant to a second hearing. His Honour was attracted by three considerations in favour of the conclusion rejecting that submission:[26]
a)the Tribunal’s decision could in no way be characterised as based on an unknown or unexpected issue which it had failed to disclose;
b)a distinction was to be drawn between the obligation to inform an application of ‘issues’ and matters of concern (in relation to which the Tribunal had no obligation to give a running commentary);
c)the issue of fear of harm on the basis of religious beliefs had been a live issue before the Tribunal.
[25] [2017] FCA 955.
[26] [2017] FCA 955, [38]-[40].
Bromwich J held that the case was not one in which the applicant was unaware of the issue that had arisen, as the information and claims giving rise to the asserted “issues” had been advanced on the appellant’s behalf. His Honour stated:[27]
. . . Furthermore, while the appellant’s post-hearing submission relied upon events post-dating the Tribunal hearing, it arose in the context of the question of whether there was any basis for the appellant to claim protection by reason of religious persecution, which had been explicitly raised as an issue by the Tribunal at the hearing. In this regard, the appellant’s disavowal of reliance on such a claim at the hearing did not mean that the issue was not present or did not exist. Rather, it meant that the appellant had not, at that time, provided information by which that possible basis for advancing a claim for a protection visa had any content. He chose to give that issue content after the hearing, by reason of events that also took place later. He provided all of the information upon which that claim was based, albeit also by reference to country information (which was accepted by the Tribunal). Having done so, the Tribunal was obliged to consider and assess the information so advanced, including by having regard to its inherent characteristics, strengths and weaknesses. The Tribunal’s reasons disclose the thought processes in carrying out that essential function.
[27] [2017] FCA 955, [45].
Concerning the question of country information, Bromwich J stated:[28]
. . . It must similarly have been appreciated that the information supplied, including country information referred to which was before this Court, did not directly relate to the appellant’s home town or village, but rather to places some distance away, and that the nexus asserted was indirect and inferential at best. The Tribunal was entitled to – indeed, obliged to – consider that information and evaluate it, including with regard to the context in which it arose. Those features were, in the terms of Alphaone reproduced above, readily apparent from the nature and contents of the information supplied, as understood in the context of the antecedent Tribunal hearing and, in particular, the raising of the possibility of such a claim. As Katzmann J pointed out in SZRTF at [62]:
In any case, the obligation to comment or respond only extends to “information” and “information” “does not encompass the tribunal’s subjective appraisals, thought processes or determinations . . . nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.” (citations omitted)
[28] [2017] FCA 955, [46].
In a similar vein, in AFU17 v Minister for Immigration and Border Protection,[29]Moshinksy J held that by reason of s 424(3)(a) there was generally no requirement that the Tribunal give notice to an applicant that it may have regard to country information. On the facts of that appeal, his Honour considered that the distinction drawn in country information between ‘anti-regime activity’ and ‘critical views’ did not rise to the level of an issue in the review:
Rather, the country information simply formed part of the basis upon which the Tribunal assessed whether there was a real chance of serious harm or a real risk of significant harm as a result of the applicant’s participation in political activity in Australia.
In reaching this conclusion his Honour recognised[30] that the applicant had relied upon ABV16. Moshinsky J did not consider the approach which he had taken to be inconsistent with ABV16, including by reason that each case would turn on its own facts.
[29] [2018] FCA 1877, [34]-[35].
[30] [2018] FCA 1877, [36].
The approach which was taken by Moshinsky J is illuminated by other Full Court decisions which consider SZHKA. First, in MZXRE v Minister for Immigration and Citizenship,[31] Graham J held,[32] that a Tribunal had not been obliged to conduct a further hearing as the applicant had been afforded an opportunity to furnish additional information. North and Rares JJ found it unnecessary to decide the issue. Secondly, in AEK15 v Minister for Immigration and Border Protection,[33] McKerracher, Griffiths and Perry JJ observed that the fact that s 425(1) imposed a duty to invite an applicant to a hearing was one which may not be discharged by a single hearing and may require a further hearing, depending on the circumstances of the particular case.
[31] [2009] FCAFC 82.
[32] [2009] FCAFC 82, [76].
[33] [2016] FCAFC 131, [56].
When a Tribunal concludes that it must conduct a hearing, an applicant is entitled to appear at a hearing to give evidence and make arguments in relation to the issues arising upon the decision under review: SZRMQ v Minister for Immigration and Border Protection.[34] As Allsop CJ and Robertson J held, such an entitlement requires that the applicant be afforded a real and meaningful opportunity to do so.[35] As consideration of the present application discloses, the applicant’s lawyers took that opportunity and made detailed submissions both before, during and after the Tribunal hearing addressing the question of risk of serious or significant harm as informed and by reference to country information.
[34](2013) 139 ALD 436 (Allsop CJ and Robertson J); (SL refused [2014] HCATrans 110).
[35] (2013) 139 ALD 436, [14], [44]-[45].
I accept that that the issue before the Tribunal had been whether the applicant was at risk of serious or significant harm in his home region due to sectarian and generalised violence. The manner in which the applicant sought to employ the 2016 DFAT Report as creating a new issue was to mischaracterise the issue that was before the Tribunal. There was no new issue created by the content of the 2016 DFAT Report. I agree in the Minister’s submission that the 2016 DFAT Report was employed as evidence which was confirmatory of the position in the 2015 DFAT Report. So much was plain from the Reasons at [46].

The Tribunal stated at [46] that the assessment in the 2015 DFAT Report was that there was a moderate risk of sectarian violence in some areas of FATA and a high degree of generalised violence, but it did not accept on the basis of all of the information before it that Upper Kurram, including Parachinar, was one of the areas where such a risk existed. The Tribunal referred to the 2016 DFAT Report as follows:
This is confirmed in the more recent [2016 DFAT Report] . . . in which DFAT assesses there is a low level of sectarian violence overall in the FATA and the level of generalised violence varies throughout FATA, with this violence greatest in North Waziristan and Khyber Agencies because of ongoing military activities associated with operation Zarb-e-Azb. DFAT assessed there is a low level of generalised violence in Kurram and Orakzai Agencies.
The use which was made by the Tribunal of the 2016 DFAT Report was to confirm that which had been stated in the 2015 DFAT Report.
The Tribunal found on the range of material before it that the situation had changed significantly as compared to previous years and that there had been an improvement as a result of stabilisation in the region since the beginning of 2014, coupled with a decrease in sectarian violence and violence from the Taliban from 2014 onwards: Reasons, [55]-[56].
One of the authorities to which Bromberg J had had regard in ACE15 when identifying the guiding principles to what level of specificity was to be expected of a Tribunal in issuing such an invitation was Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam.[36] There, Gleeson CJ held[37] that fairness was not an abstract concept but was essentially practical and was concerned with whether practical injustice had been occasioned to a person by the manner in which the administrative decision-maker had conducted the matter.
[36] (2003) 214 CLR 1.
[37] (2003) 214 CLR 1, [37]-[38].
Treating considerations of fairness and practical injustice as guiding principles in the determination of precisely what may constitute the issues arising in relation to a decision under review and as to the level of specificity which is to be expected of a Tribunal in deciding whether to issue an invitation to an applicant to comment or to a further hearing, I do not seen any want of fairness of practical injustice as being occasioned to the applicant in this case including for the reasons at [64].
The applicant was entitled to assume that, unless some other additional issues were identified by the Tribunal, the issues which the delegate had considered to be dispositive were then those which arose in relation to the decision under review. That assumption was safely made in this case. The submissions filed on behalf of the applicant squarely identified that the risk of serious or significant harm was in issue and addressed country information relevant to that issue before, during and after the hearing.
No new issue was identified by the Tribunal in the circumstances of this case. The present case is readily distinguishable from ABV16. There was, unlike that case, no change in government policy as to engage an obligation to afford the applicant an opportunity advance further evidence or arguments upon material which was confirmatory of that which had been the subject of the applicant’s existing submissions. To adapt the reasoning in SZVYG, in the present case the Tribunal’s decision could in no way be characterised as based on an unknown or unexpected issue which it had not been disclosed. To the contrary, the risk posed by violence was squarely recognised and addressed in detail by the pre-hearing, hearing and post-hearing submissions of the applicant’s migration agents. The issue of fear of harm on the basis of sectarian or generalised violence had been a live issue before the Tribunal at all such times. No further obligation to invite the applicant to comment or to convene a further hearing for that purpose was engaged by promulgation of the 2016 DFAT report. The Tribunal employed the evidence contained in that report as being confirmatory of material that had been under consideration at all times.
Ground 1 is rejected.

Ground 2 – irrational findings

Ground 2, as amended, reads:
The decision of the Tribunal is affected by jurisdictional error in that the Tribunal’s findings relating to the risk of sectarian violence in the applicant’s home region were irrational, as they could not be supported by the evidence from which the Tribunal purported to draw them.
Particulars
The material on which the Tribunal relied to support the conclusion that Upper Kurram was not an area where the risk of violence described in the 2015 DFAT report existed could not rationally support that conclusion.
The applicant’s complaint in relation to Ground 2 centred upon the Reasons at [46] and the Tribunal’s use of the material cited in those Reasons. The applicant complained that although the Tribunal had acknowledged the assessment made in the 2015 DFAT Report (that there was a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some FATA areas), it had then made a finding that it did not accept that the Upper Kurram, including Parachinar, was one of the areas where such a risk existed. This finding was submitted to be illogical and irrational by reason that it could not be rationally supported by the material on which the Tribunal had purported to rely in making that finding.
The Minister resisted Ground 2, submitting that contextually, the Reasons at [46] made the further finding, based upon the 2016 DFAT Report, that there was a low level of generalised violence in the Kurram Agency.
Where an administrative decision is found to be wholly illogical or irrational this may ground a conclusion that the decision of the Tribunal is affected by jurisdictional error such as to attract prerogative relief: Minister for Immigration and Citizenship v SZMDS.[38] The decision will be irrational only where it is devoid of reason. An administrative decision will not be irrational or illogical merely because two persons might have reached different conclusions upon the same evidence.
[38] (2010) 240 CLR 611, [40], [57], [96], [121], [130]-[133], [135].
To establish illogicality or irrationality sufficient to give rise to jurisdictional error in refusing a protection visa, it must be demonstrated that the decision as to the state of satisfaction required by s 65 was one which no rational or logical decision maker could have arrived at on the same evidence as was before the Tribunal.[39] By extension, this court cannot conclude that a decision was irrational or illogical or unreasonable because the Tribunal reached one decision over another where the probative evidence was capable of supporting different processes of reasoning which were logically, rationally or reasonably open.[40] The correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it adopted.[41]
[39]           SZMDS, supra (2010) 240 CLR 611, [130] (Crennan and Bell JJ).
[40]           SZMDS, supra (2010) 240 CLR 611, [131] (Crennan and Bell JJ).
[41]           SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ).
In SZMDS,[42] Crennan and Bell JJ identified three means by which a decision might be said to be demonstrably illogical or irrational:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
This statement of principle has been applied by intermediate appellate courts on many occasions.
[42] (2010) 240 CLR 611, [135]; see also [78], (Heydon J).
More recently, in Minister for Immigration and Border Protection v Sabharwal[43] Perram, Murphy and Lee JJ, citing SZMDS, held that:
lllogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material[44] . . .
The Full Court endorsed the analysis of Allsop CJ in Minister for Immigration and Border Protection v Stretton,[45] that the question was:
. . . whether a decision-maker could reasonably come to the conclusion reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
See also Singh v Minister for Home Affairs.[46]
[43] [2018] FCAFC 160, [45] (Perram J, Allsop CJ and Lee J agreeing).
[44] Citing SZMDS, supra [130]-[132] and [135] (Crennan and Bell JJ), [78] (Heydon J).
[45] [2016] FCAFC 11; (2016) 237 FCR 1, [21].
[46] [2019] FCAFC 3, [57] (Reeves, O’Callaghan and Thawley JJ).
It was common ground that the Tribunal was required by s 430(1) to set out in its Reasons its findings on material questions of fact and to refer to the evidence or any other material on which those findings were based.
The evidence and other material on which the Tribunal based[47] its findings for the matters set out in its Reasons at [46] were as follows:
a)FATA Research Centre, Security Report Second Quarter 2014 (24 July 2014);
b)FATA Research Centre, Annual Security Report 2014 (May 2015);
c)South Asia Terrorism Portal, FATA Assessment 2015;
d)Pakistan Institute for Peace Studies, Pakistan Security Report 2014 (January 2015).
[47] See Reasons, footnotes 5-8 at [43]-[46].
Each of the parties highlighted particular passages of the reports which were tendered in evidence, drawing attention to statements upon which they relied in support of the conclusion for which they contended in relation to Ground 2. I do not consider that it is of particular assistance to set out at length each of those passages.
It was submitted for the applicant that none of the material in those reports could rationally support a finding that the degree of generalised violence and sectarian violence identified in the 2015 DFAT Report did not apply to the Upper Kurram Agency, and that, to the contrary, each of those reports detailed serious terrorist attacks in the Upper Kurram Agency. Contrastingly, the Minister contended that this submission was misconceived, essentially because the Tribunal did not find that there was no risk of generalised violence or sectarian violence in the Upper Kurram Agency. Rather, it was submitted, the evidence before it did not support a conclusion that the Upper Kurram Agency, including Parachinar, was one of the areas affected by a moderate risk of sectarian violence and high risk of generalised violence of the kind which occurred in other parts of FATA.
The applicant submitted that the Tribunal had effectively relied upon the country information to read down the 2015 DFAT Report and the assessment of generalised and sectarian violence in the FATA so as to exclude the Upper Kurram Agency from that assessment. It was said that there was no rational basis for having done so and that the Tribunal’s reliance of that material had been, at best, selective with a view to supporting a preferred outcome. The finding that the DFAT-assessed levels of violence did not apply to the Upper Kurram Agency was, it was said, “simply not open on the evidence” and had “no logical connection between the evidence and the inferences or conclusions drawn.”[48] The conclusion that the applicant did not face a real chance of serious harm or a real risk of serious harm was therefore said to have been based upon an irrational and illogical finding and was accordingly said to be affected by jurisdictional error.
[48] Citing SZMDS, supra, (2010) 240 CLR 611, [135].
I have re-examined each of those reports and in particular each of the passages to which the parties have referred. As SZMDS and later authorities emphasise, an affirmative answer to the question whether an administrative decision is illogical or irrational should not be lightly given.[49] The reasons of a Tribunal are not to be read in an overzealous fashion. Not every lapse in logic or erroneous finding of fact or failure to find a fact will suffice to demonstrate error or support a claim of jurisdictional error. I reject the submission that the Tribunal’s use of the reports was extremely selective. Both the choice and assessment of the weight of the country information were matters for the Tribunal.[50]
[49]SZMDS, supra, (2010) 240 CLR 611, [35], [40] (Gummow ACJ, Kiefel J diss’), [86] (Heydon J), [122], [130] (Crennan and Bell JJ); cf Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, [48] (Griffiths, White and Bromwich JJ); BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6, [60] (Griffiths, Gleeson and Colvin JJ).
[50]NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [13] (Gray, Tamberlin and Lander JJ); Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464, [27]; G v Minister for Immigration and Border Protection [2018] FCA 1229, [278] (Mortimer J); BYY15 v Minister for Immigration and Border Protection [2018] FCA 116, [23] (Steward J).
Contrary to the applicant’s submissions there was not only one conclusion open on the evidence based upon an assessment of the level of risk in FATA, the Upper Kurram and Parachinar. Nor do I accept that the decision to which the Tribunal came was simply not open on the evidence or one for which there was no logical connection between the evidence and the inferences or conclusions drawn from the information which was assessed. As the Full Court observed in DYK16 v Minister for Immigration and Border Protection:[51]
. . . assertions of illogicality and irrationality can too readily be used to conceal what is simply an attack on the merits of the relevant findings and decision.
[51] [2018] FCAFC 222, [79] (Collier, Middleton and Rangiah JJ).
I accept the submissions of the Minister that reading the Reasons as a whole it is apparent that the Tribunal considered the question of country information in detail: [36]-[57]. I consider that the content of the reports provided an evidentiary basis for the conclusion which was in fact drawn; namely, that on the basis of all information that was before the Tribunal, the Upper Kurram, including Parachinar, was not one of the areas where there was a high risk of generalised violence. The Tribunal used the 2016 DFAT Report as being confirmatory that there was a low level of sectarian violence overall in the FATA and that the level of generalised violence varied throughout the FATA.
I am not satisfied that the Tribunal’s finding as to the level of generalised or sectarian risk in the FATA, Upper Kurram and Parachinar was not one which a reasonable administrative decision-maker could have reached on the evidence. Upon the principles stated above, I consider that a reasonable decision-maker could have reached the findings made in relation to the risk of violence on the same material. I am also satisfied upon consideration of the whole of the Reasons that the Tribunal gave proper, genuine and realistic consideration to the question of both generalised and sectarian violence in the FATA, Kurram Agency including in the applicant’s locality, Parachinar. As the Minister submitted, on a review of the Reasons, it is readily apparent that there had been active engagement with the applicant’s submissions. I do not consider the Tribunal’s finding on those issues along the way to reaching its ultimate conclusions that it was not satisfied that the applicant had a well-founded fear of persecution or that he faced a real risk of significant harm were erroneous. Accordingly, I do not accept that the Tribunal’s decision affirming the decision to refuse the protection visa application involved jurisdictional error.
Ground 2 is rejected.

Conclusion

For the foregoing reasons, the application must be dismissed.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate:

Date: 12 February 2019

Details

AGLC: Anf16 v Minister for Home Affairs [2019] FCCA 150
Case: [2019] FCCA 150
Decision Date: 12 February 2019

CaseChat Overview and Summary

ANF16 (the applicant) sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) affirming the Minister for Home Affairs' (the respondent) decision to refuse the applicant a protection visa. The applicant contended that the Tribunal had failed to afford procedural fairness by relying on country information not discussed at the hearing, and that the Tribunal's decision was illogical or irrational, thereby constituting jurisdictional error.

The primary legal issues before the Federal Circuit and Family Court of Australia were whether the Tribunal was obliged to provide the applicant with a further opportunity to attend a hearing, or make submissions, in light of country information referenced in its reasons that had not been explored during the initial hearing. This required the court to consider whether this country information raised a new issue or was germane to an existing live issue before the Tribunal, and whether the Tribunal's decision was affected by jurisdictional error due to irrationality or illogicality.

Judge A Kelly found that the country information referenced by the Tribunal was confirmatory of its existing findings on material questions of fact and was germane to issues already live before the Tribunal. The court determined that this information did not raise a new issue requiring further submissions or a second hearing. Furthermore, the court found that the applicant had mischaracterised the Tribunal's findings, and that the decision was not illogical or irrational, as there was a logical connection between the evidence before the Tribunal and the inferences and conclusions it drew. Consequently, the court held that the Tribunal's decision was not affected by jurisdictional error.

Orders