Aso20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1310
•19 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ASO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1310
File number(s): SYG 349 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 19 August 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – applicant disbelieved – whether the credibility finding was unreasonable and whether the Tribunal gave proper, genuine and realistic consideration to the applicant’s claims considered – no jurisdictional error Legislation: Migration Act 1958 (Cth), ss 36, 424A
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
BEL16 v Minister for Home Affairs [2019] FCA 1678
CIC15 v Minister for Immigration and Border Protection [2018] FCA 795
DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641
EBY17 v Minister for Immigration and Border Protection [2019] FCA 22
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Al‑Miahi (2001) 65 ALD 141
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775
SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944
SZVAP v Minister for Immigration & Border Protection (2015) 233 FCR 451
TTY167 v Republic of Nauru (2018) 362 ALR 246
Number of paragraphs: 116 Date of hearing: 10 June 2021 Place: Sydney Counsel for the Applicant: Mr O R Jones Solicitors for the Applicant: TCI Lawyers Counsel for the Respondents: Mr N Li Solicitors for the Respondents: Minter Ellison ORDERS
SYG 349 of 2020 BETWEEN: ASO20
First Applicant
ASP20
Second ApplicantASQ20 (and another named in the Schedule)
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1.The application the subject of leave granted on 10 June 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 January 2020. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are a family unit comprised of a mother (the first applicant), father (the second applicant) and their children (the third and fourth applicants), and are citizens of Pakistan.
On 24 February 2014, the applicants lodged an application for protection visas.[1] The first applicant submitted her own claims for protection,[2] while the second, third and fourth applicants were included in the application as members of the first applicant's family unit.[3]
[1] Court Book (CB) 17–116
[2] CB 68–71
[3] CB 43, 50, 57
On 27 August 2014, the first applicant attended a protection visa interview with the delegate.[4]
[4] CB 162
On 4 May 2016, the delegate refused the applicants protection visas on the basis of adverse credibility findings in respect of the first applicant's claims, and country information.[5]
[5] CB 151–176
On 2 June 2016, the applicants lodged an application for review of the delegate's decision with the Tribunal.[6]
[6] CB 184–216
On 27 December 2018, the first applicant provided the Tribunal with further submissions about her protection claims, dated 21 December 2018 (the December 2018 submissions).[7]
[7] CB 226–230
On 12 September 2019, the Tribunal wrote to the first applicant to request written confirmation of her verbal agreement to attend a combined hearing with her sister, who the Tribunal has referred to as AA in its decision, and who also had an application for review before the Tribunal.[8] The same day, the first applicant confirmed her and AA's agreement to the combined hearing.[9]
[8] CB 235–237
[9] CB 238
On 13 September 2019, the Tribunal invited the applicants to attend a combined hearing with AA scheduled for 1 November 2019.[10]
[10] CB 239–249
On 7 October 2019, the second applicant emailed the Tribunal to advise that the first applicant was pregnant and attached a medical certificate that noted the first applicant was “very stressed” as a result of the pregnancy.[11]
[11] CB 254–256
On 1 November 2019, the first and second applicants, together with AA and AA's husband, appeared before the Tribunal to give evidence and present arguments at a combined hearing. That hearing was adjourned.[12]
[12] CB 257–262
On 18 November 2019, the first and second applicants, together with AA and AA's husband, appeared before the Tribunal at the resumption of the adjourned hearing.[13]
[13] CB 270–275
On 20 November 2019, the Tribunal wrote to the applicants, under s 424A of the Migration Act 1958 (Cth) (Migration Act), to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review.[14]
[14] CB 288–301
On 21 November 2019, the applicants appointed a migration agent to act as their representative and authorised recipient before the Tribunal.[15] On 3 December 2019, the migration agent provided the Tribunal with the applicants' response to the s 424A letter.[16]
[15] CB 302–303
[16] CB 304–308
On 24 January 2020, the Tribunal affirmed the decision not to grant the applicants protection visas.[17]
[17] CB 315–347
First applicant’s claims
In a statement filed with her protection visa application,[18] the first applicant claimed to fear persecution on the basis of threats she and AA had received from the Taliban due to their private tutoring of students who had left religious madrassa schools. Those students had engaged in private tutoring with the first applicant and AA for examinations conducted by foreign countries in an effort to leave Pakistan. The first applicant claimed to be a highly educated woman who taught microbiology, statistics, physics and chemistry.
[18] CB 68–71
The first applicant also claimed that she and AA had been the subject of threats from members of the Taliban who ordered them to wear a burqa and stop working. She claimed that AA's husband had made a complaint to the police about the Taliban's threats, which resulted in him being assaulted and threatened by members of the Taliban the next day.
The first applicant claimed that armed men from the Taliban entered her parents’ house while she and her sister were teaching and she was threatened that if she did not comply with the Taliban’s demands she would be taken away to teach in madrassa schools run by the Taliban. After that and her brother-in-law’s beating, the first applicant sought a student visa and the family fled.
The first applicant also claimed that AA had reported to her that there were “continuous shootout[s]” between militants of the Taliban and the opposing MQM Party[19] (which represented Urdu-speaking people like the applicants) and claimed that it would be dangerous for her to return to her home area, which was then controlled by the Taliban and Balochs.[20]
[19] Muttahida Qaumi Movement
[20] An ethnic group in Pakistan
In the December 2018 submissions to the Tribunal,[21] the Tribunal understood that the first applicant claimed that her late father was involved in the madrassa schools and that they were targeted by the Taliban because they did not comply with their father's request to teach at madrassa schools following his death.[22]
[21] CB 226–230
[22] CB 326, [64]-[65]
Tribunal decision
The Tribunal summarised the evidence given at the combined hearings by AA,[23] the first applicant,[24] AA's husband[25] and the second applicant.[26]
[23] CB 317–320, [9]–[29]
[24] CB 321–323, [30]–[45]
[25] CB 323, [46]–[47]
[26] CB 323–324, [48]–[52]
The Tribunal set out the claims the first applicant had made with her protection visa application,[27] at her interview with the delegate[28] and in the December 2018 submissions[29] in respect of why the Taliban held an adverse interest in the first applicant and AA and observed that the “tenor” of the December 2018 submissions was inconsistent with the claims made in the protection visa application and at the interview.[30]
[27] CB 324–325, [53]–[59]
[28] CB 325–326, [60]–[62]
[29] CB 326–327, [64]–[69]
[30] CB 327, [70]
The Tribunal observed that the evidence of the first applicant and AA at the Tribunal hearing was consistent with the claims made in the protection visa application and at the interview,[31] and set out the evidence in detail.[32] The Tribunal found that this evidence was inconsistent with the December 2018 submissions and recorded that, when it put this inconsistency to AA and the first applicant at the hearing, their responses were “indirect” and “unconvincing”.[33]
[31] CB 327, [71]
[32] CB 328–331, [72]–[95]
[33] CB 331–332, [96]–[102] and CB 332, [103]–[106] respectively
The Tribunal recorded that it put to the first applicant and AA this inconsistency again by way of s 424A letters and considered their representatives' submissions in reply, but found that the submissions did not resolve the inconsistency in question.[34]
[34] CB 333–334, [107]–[113]
The Tribunal set out the evidence that had been provided at the hearing by AA, the first applicant and AA's husband regarding:
(a)why the first applicant and AA had continued teaching after the claimed attack on AA's husband;[35]
(b)their claim to have continued to provide tuition to students in a house with an unlocked door after having decided to flee Pakistan;[36]
(c)their claim that the Taliban came to their parents' home in 2013 and directed them to teach their students about the Koran and jihad in a madrassa;[37] and
(d)the claimed intensification of adverse interest after they left Pakistan.[38]
[35] CB 334–335, [114]–[125]
[36] CB 336–337, [126]–[133]
[37] CB 337–339, [134]–[144]
[38] CB 339–340, [148]–[154]
However, the Tribunal variously found that AA and the first applicant's accounts of the circumstances relating to these claims to be “highly improbable”[39] and “inconsistent”.[40]
[39] CB 336, 339, [126], [145]–[147] and CB 340–341, [155]–[156]
[40] CB 336, [131]
The Tribunal noted that responses in AA's husband's student visa application suggested AA had been employed as a “structure engineer”. In her student visa application the first applicant claimed to be employed as a “pharmacist”. The Tribunal put this information to the first applicant and AA pursuant to s 424A.[41] The Tribunal recorded that it had “carefully considered” the first applicant's response to this information, which included an explanation that a migration agent had included false information in that application to ensure that the student visas were granted, but found their claim to be ignorant of this fact until it came to their attention by way of the s 424A letter to be “inconceivable”.[42]
[41] CB 341, [157]–[158]
[42] CB 341–342, [157]–[165]
The Tribunal also noted that AA did not claim in her student visa application of March 2013 that her father was deceased and that it put this information to the first applicant and AA under s 424A.[43] The Tribunal had regard to the first applicant's response to this information but remained concerned that a claim as fundamental as her father's death in 2009 was omitted from this application and found that this caused significant doubt over the credibility of this claim, and their credibility generally.[44]
[43] CB 342–343, [166]–[167]
[44] CB 343, [168]–[169]
Considered cumulatively, the Tribunal found that its concerns as to the credibility of the first applicant and AA led it to find they were not witnesses of truth, even when it took into account the purportedly corroborative evidence of their husbands.[45] The Tribunal found that the first applicant and AA's accounts were false[46] and rejected each of their claims.[47] Accordingly, the Tribunal found there was no credible evidence before it as to why the applicants left Pakistan or why they did not want to return there.[48]
[45] CB 343, [170]–[171]
[46] CB 343–344, [173]
[47] CB 344, [174]–[175]
[48] CB 344, [176]
Having rejected the claims of the first applicant and AA, the Tribunal assessed the risk of harm to the applicants on return to Karachi as Sunni Muslims with reference to country information to be remote.[49] The Tribunal had regard to AA's submissions as to her perceived risk of harm but found that they did not persuade the Tribunal to depart from the inferences drawn from the country information.[50] The Tribunal noted that the first applicant had submitted a number of media reports but found that it preferred the sources on which it relied upon as they were more current.[51]
[49] CB 344–345, [177]–[178]
[50] CB 345–346, [179]–[184]
[51] CB 346–347, [186]
For these reasons, the Tribunal found that there was not a real chance the applicants would suffer serious harm in Pakistan, nor was there a real risk they would suffer significant harm in that country. Accordingly, the Tribunal found the applicants did not satisfy the criteria set out in s 36(2)(a) or (aa) of the Migration Act[52] and affirmed the decision under review.[53]
[52] CB 347, [187]–[188]
[53] CB 347, [189]
The Tribunal’s reasons are explored further below in relation to the grounds of review.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 18 February 2020. There were seven grounds in that application:
Ground 1
The Tribunal failed to adequately explain the reason why it decided to conduct the combined hearings when the profile of the applicants was different.
Particulars
The applicants are self-represented applicants and the Tribunal owes duty to clearly explain its reasons to conduct combined hearings. It failed to explain the principle of confidentiality and privacy issues under the Australian law. If those have been explained, it is respectfully submitted that the applicants would not have agreed for combined hearings.
Ground 2
The second respondent failed to give the applicant information and invitation in accordance with· section 424A of the Migration Act 1958. The Tribunal sent a combined letter in relation to section 424 A of the Migration issue with her sister but did not specifically identify the 'information' and its relevance related to applicants' application.
Ground 3
The Second Respondent failed to complete the exercise of its jurisdiction.
Particulars
The second respondent failed to make a finding on the applicant's claims that she held an opinion opposing TTP.
Ground 4
The Tribunal failed to give the applicant a “real and meaningful” opportunity to participate in the hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars
The applicants advised the Tribunal on 08 October 2019 that the primary applicant is pregnant and requested the Tribunal to consider is when conducting the hearing. Though, the applicants advised that the primary applicant would attend the hearing, however, prior to the commencement of the hearing or during the hearing the Tribunal did not inquire from the primary applicant whether she was fit enough to give evidence. The Tribunal in its decision noted that the primary applicant was well enough to comprehend and respond the questions, however, at no stage the Tribunal inquired from the primary applicant and considered whether she was in the proper physical and mental condition to attend the hearing. The Tribunal formed an unreasonable opinion without any evidence that the applicant was fit to attend the hearing. In addition, the Tribunal failed to give adequate and reasonable breaks to the primary applicant who was a self-represented applicant. Accordingly, it is respectfully submitted that the Tribunal failed to afford procedural fairness to the applicants.
Ground 5
The Tribunal deprived the Applicant of procedural fairness in failing to disclose the existence of a section 438 certificate during the hearing and invite him to comment, such certificate also being invalid.
Particulars
(a)The certificate was invalid because the information it purported to relate to was not 'given' to the Department, nor given 'in confidence'.
The Tribunal noted in its decision in footnote that the s.438 certificate issued in this case is invalid. Its existence was not disclosed to the applicant until 24 January 2020.
Ground 6
The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact and failed to engage in genuine and realistic consideration.
Particulars
A.The applicant articulated in her submission dated 21 December 2018 which the Tribunal advert it in its decision that she fears harm from Baloch settlers. The Tribunal failed to consider or engage in active intellectual consideration of the claim.
B.The applicant articulated in her submission dated 21 December 2018 which the Tribunal advert it in its decision that she fears harm due to her failure to wear Burkhas. The Tribunal failed to engage with the claim.
C.The Tribunal failed to consider the claim advanced by the applicant, namely that she is from an educated family. The Tribunal did not dispute that the applicant is a highly educated woman and the applicant father was an educated person. The applicant in her statement dated 21.12.2018 submitted that she is from an educated family and at least implicitly articulated it as a ground to seek protection. The Tribunal failed to consider it.
D. The applicant in her statement dated 21.12.2018 advanced a claim that she never liked the TTP expansion and respectfully submitted that it is a political opinion applicant submitted against TTP (Active or imputed). The Tribunal failed to consider it.
Ground 7
The Tribunal engaged in legal error by misconstruing or failing to apply the correct law or test.
Particulars
The applicant continued to articulate during her protection visa process that she would face harm as an educated woman. The Tribunal accepted that the applicant is a highly educated woman but failed to apply the correct test of forward-looking test to assess whether she would face harm if she were to return to Pakistan now or in a foreseeable future.
(errors in original)
The matter came before me for a show cause hearing on 16 September 2020. At that time I ordered, under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), that the Minister show cause why relief should not be granted in relation to Grounds 1, 2, 3, 6 and 7 in that application. The matter was listed for a final hearing in March 2021 but that was subsequently deferred until 10 June 2021.
At the trial, the applicants sought leave to rely upon a proposed amended application annexed to submissions filed on 30 October 2020. Leave was not opposed and I granted it. There are three grounds in the application thus amended:
1.In finding that the First Applicant was not a truthful or credible witness, the Tribunal acted in a legally unreasonable way and/or engaged in irrational or illogical reasoning and/or made findings without any probative basis. This constituted jurisdictional error.
2.The approach of the Tribunal in determining both the application of the First Applicant and that of her sister together constitutes a constructive failure to exercise jurisdiction in relation to the review of the First Applicant’s application, and therefore jurisdictional error.
3.The Tribunal has failed to give proper, genuine and realistic consideration to the First
Applicant’s claims and has therefore committed jurisdictional error.
At the trial, Ground 2 was not pressed.
In addition to the court book filed on 7 April 2020, I have before me as evidence the affidavit of Renee Jane Quinn made on 27 October 2020, to which is annexed a transcript of the Tribunal hearings conducted on 1 and 18 November 2019.
Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial. I have been assisted by those submissions.
CONSIDERATION
Ground 1 – were the Tribunal’s adverse credibility findings unreasonable, irrational or illogical or made without a probative basis?
Applicants’ contentions
The Tribunal is obliged to make a determination as to credibility in a legally reasonable way, including by a process of reasoning that is not irrational or illogical.[54]
[54] CIC15 v Minister for Immigration and Border Protection [2018] FCA 795 at [7]-[11] per Bromberg J; DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at [30] per Kenny, Kerr and Perry JJ
In BEL16 v Minister for Home Affairs,[55] Beach J made the following observations pertinent to the present case at [16]-[21]:
[55] [2019] FCA 1678
First, it is not in doubt that in assessing credibility, a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:
(a)Commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.
(b)Engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant's position before the totality of the material had been considered.
(c)Viewing inconsistencies, vagueness or omissions in the applicant's version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. In this respect, inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be "merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative" in the words of WS Gilbert's Pooh-Bah.
(d)Viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal or, conversely, discounting documentary material put forward by the applicant without good reason.
But to be clear, whether I would have gone about the fact finding exercise in the same fashion or made the same findings as the Tribunal is not to the point. The question is whether it was open to the Tribunal to engage in the process of reasoning in which it so engaged.
Second, over-ready use of labels such as "inconsistency" or "discrepancy" when characterising evidence of events invites error.
Third, to mention a claim to the Tribunal not having mentioned it to the delegate or vice versa may be relevant to credibility, but may also be reasonably explicable. Further, giving more detail on one occasion than another, or emphasising different matters at different times, may be reasonably explicable by the context or the different stage of the relevant inquiry in a way that does not invite an adverse credibility finding.
Fourth, even where there are inconsistencies or discrepancies in evidence, their significance and weight must be assessed having regard to the centrality or peripherality of the particular issue upon which the evidence is given.
Fifth, although in some circumstances it can be legitimate for the Tribunal to have regard to the timing of the making of a claim in assessing whether it is satisfied of the veracity of the claim, such an analysis is confined by principles of reasonableness, which includes as I have already indicated being "conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given" (AVQ15 v Minister for Immigration & Border Protection (2018) 361 ALR 227 at [28] per Kenny, Griffiths and Mortimer JJ).
The Tribunal’s decision in this case is said to be infected with many of these errors, as explained below.
Further, the applicants contend that, because the Tribunal in the present case did not go on to consider the first applicant’s claims on the alternative basis that its decision as to the veracity of the applicant’s account was wrong, it must be taken to have formed the view that there was no real doubt that the first applicant was not telling the truth.[56]
[56] DAO16 at [36] per Kenny, Kerr and Perry JJ
The Tribunal’s approach in this case
The Tribunal determined that there were certain “inconsistencies” in the first applicant’s evidence. These were said “[c]onsidered cumulatively” at [170] to lead to the conclusion that the first applicant and her sister were not witnesses of truth and that the account of events on which their protection visa application was based was false. As a consequence, if there is an error in relation to any of the Tribunal’s findings, that error is said to necessarily infect the Tribunal’s ultimate conclusion, with the consequence that its decision must be quashed.
At the outset, it is asserted that in so finding, the Tribunal ignored the otherwise consistent nature of the first applicant’s claims. The detailed account given in the statement attached to her visa application essentially matched the account given during her protection visa interview;[57] and that account also matched that which she gave to the Tribunal during her oral evidence, as described by the Tribunal.[58] The applicants contend that this should have been a factor that counted in the first applicant’s favour. Instead, it was ignored by the Tribunal.
[57] CB 162; see Tribunal’s decision at [60]
[58] Tribunal’s decision at [71], [88]-[89]
The applicants make the following submissions in relation to the supposed inconsistencies.
First, the Tribunal determined, in effect, that the first applicant had changed her story in her December 2018 submissions.[59] The Tribunal’s view was that, prior to those submissions, the first applicant had not claimed that her father’s involvement with madrassas in her area had contributed to her being targeted by the Taliban, but that this was what was being alleged by the applicant in the December 2018 submissions.[60]
[59] CB 227-230
[60] [64]-[65], [70]-[71], [96], [102]-[106], [113]
The Tribunal’s view in this regard is encapsulated in the s 424A letter that was sent to the first applicant on 20 November 2019: [61]
However, a persistent theme of these submissions [i.e. the December 2018 submissions] is that this adverse interest [of the Taliban] was primarily due to the refusal of [the first applicant and her sister] to comply with their father’s request that they teach at madrassas. According to these submissions, it was their refusal of this request that caused the Taliban to harass them…
[61] CB 290
A review of the December 2018 submissions is said to reveal that the first applicant made no such claim in that document. The only reference to a connection between the first applicant’s father and the Taliban related to a threat (which the first applicant was told about by her mother in Pakistan) made by the Taliban against the first applicant’s brother and sister after the applicants had fled Pakistan. There is no reference at all to her father being connected to the threats by the Taliban prior to the applicants’ departure.
The applicants submit that the highest any criticism against the first applicant could be put is that in the December 2018 submissions reference was made to her father contributing his skills to “the Madrassas in our area”,[62] whereas the first applicant subsequently clarified that this was meant to be a reference to his involvement with the Mosque (madrassas are usually part of the Mosque, but this is not always the case).[63] Such an inconsistency would not justify the findings of the Tribunal, and it is noted that even on its own reasoning this inconsistency was not the Tribunal’s primary concern.[64] This issue is said to be a minor or trivial one.
[62] CB 227
[63] CB 307
[64] See [106]
The applicants submit that the premise of the Tribunal’s questioning of the first applicant and her sister on this issue was therefore false and falls away, along with the foundation for the Tribunal’s conclusion that the first applicant’s evidence was so inconsistent as to justify rejecting it in its entirety.
The applicants suggest that it appears that the Tribunal may have confused the “Mullahs” (referred to in the December 2018 submissions) with the Taliban. The first applicant stated that her father’s connection with the madrassas was one reason why “the Mullahs insisted us to work in Madrassas”.[65] A Mullah is general term for a religious scholar. The first applicant did not say that her father’s connections to the madrassas was any part of the reason for the Taliban’s threats against her.
[65] CB 227-228
Secondly, the Tribunal concluded at [126] that the first applicant’s evidence that she and her sister continued teaching after the attack on her sister’s husband was “highly improbable”. This is said to be an example of the Tribunal adopting the “undue propensity to scepticism” against which Beach J warned in BEL16. The evidence of the first applicant and her sister is that they were teachers. This was their profession. Following the attack on her sister’s husband, both the first applicant and her sister restricted their teaching activities to their parents’ home. The evidence of the first applicant’s husband and brother-in-law was that she could be driven to and from her parents’ house, so that this was a safer place to teach than the homes of students. The applicants submit that there was no basis whatsoever for the Tribunal to conclude that the first applicant was lying simply because she wished to continue at least part of her work despite the threats that had already been made against her and her family.
Thirdly, the Tribunal rejected at [131]-[133] the first applicant’s contention that the Taliban were able to gain access to her parents’ house where she was teaching with her sister and make threats against her because the door to the house was not locked. Again, the Tribunal is said to have approached this matter at [130] with undue scepticism, as can be seen from its description of the first applicant’s position as being that she took the risk of “allowing the Taliban to easily enter from the street and harm her”, or that she was “content to continue to provide tuition to students in a house with open access” at [131], or that she was “willing to provide private tuition in a house that was unlocked and into which people could freely enter” at [132], or that the first applicant “preferred” to leave the door open at [133]. The first applicant explained that it was routine in Pakistan that doors were not always locked[66] and there was no evidence before the Tribunal on which it could conclude that this was not true.
[66] See [129]
Fourthly, the Tribunal determined at [137], [142] and [145] that it could not accept that the Taliban would demand that the first applicant and her sister, as women, would teach at a madrassa. Again, there is said to have been no evidence at all before the Tribunal to justify this scepticism. As Flick J stated in SZVAP v Minister for Immigration & Border Protection[67] at [22]:
[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it.
(citation omitted)
[67] (2015) 233 FCR 451
Further, the reality is said to be that the first applicant and her sister were being threatened with “abduction” to the madrassa.[68]
[68] See the December 2018 submissions cited by the Tribunal at [66]
Fifthly, the Tribunal stated at [145] that it was improbable that the Tribunal would have required a meeting to be held between the first applicant, her sister and their students, but not set a date for that meeting to occur. In light of the fact that the Taliban plainly knew where the first applicant and her parents lived, such scepticism is again said to be unfounded.
Sixthly, the Tribunal at [157] criticised the first applicant for information on her student visa application which suggested that she worked as a pharmacist. However, the first applicant explained that she was not directly involved in her student visa application, and that this was done hurriedly, by an agent, in order to facilitate the applicants’ escape from the country.[69] The Tribunal at [162] appears to have rejected this explanation on the basis that the first applicant’s employment information was important to her protection visa application. However, this is said to make little sense in circumstances were the applicants’ first priority was to leave the country, and this was being done via a student visa application. The first applicant’s protection visa application was only made when the applicants had reached Australia.
[69] At [159]-[160]
Seventhly, the Tribunal at [166] criticised the absence of any reference on the first applicant’s student visa application to her father being deceased. Again, however, this is explained at [168] by the circumstances in which the first applicant’s student visa application was prepared.
The applicants submit that, in light of the above, in finding that the first applicant was not a truthful or credible witness, the Tribunal acted in a legally unreasonable way and/or engaged in irrational or illogical reasoning and/or made findings without any probative basis. This is said to constitute jurisdictional error.
Minister’s contentions
The Tribunal made its adverse credit findings on the basis of the cumulative problems identified by the Tribunal as to the veracity of the first applicant’s evidence (and the evidence of AA and the two husbands in corroboration).[70]
[70] CB 343, [170]
However contrary to the applicant’s submissions, the applicants do not succeed merely by showing that there is error “in relation to any of the Tribunal’s findings” with the effect that “that error necessarily infects the Tribunal’s ultimate conclusion”. The Minister submits that there is nothing, either express or implied, in the Tribunal’s reasons to support the contention that each of the seven complaints advanced by the applicants in their submissions are indispensable elements to the Tribunal’s adverse credit findings.
Also contrary to the applicant’s submissions, the Minister contends that the mere fact that the Tribunal did not make a favourable credibility finding by the mere fact that the first applicant made prior consistent statements does not disclose any error. Repetition of the first applicant’s claims does not cure the inherent improbabilities upon which the Tribunal made its adverse credit findings. The Tribunal did not err in not placing weight on the first applicant’s repetitions of her claims.
The Minister submits that none of the applicant’s seven complaints have substance and that the Tribunal was entitled to draw an adverse credit finding with respect to the claim that the Taliban took an adverse interest in the first applicant and AA because of a failure to carry out their father’s wishes to teach at a madrassa.
In her December 2018 submissions, the first applicant made a new claim as follows:[71]
The TPP men and the Taliban elders had told [two of the first applicant’s siblings] that none of us were willing to teach at the madrassas like my father and they had to take my siblings away to train them. They told my siblings that my father had promised the Muslim elders that his children would be teaching at Madrassa schools in the future and none of us ever attempted to comply with our father’s request. They told my siblings that when we return back to Pakistan we also had to work at the madrassas.
[71] CB 229
The Tribunal read the December 2018 submissions to mean that:[72]
The applicant and AA claimed that their father was involved with madrassas, he asked them to teach at madrassas, they refused and because they refused, the Taliban harmed them and, after they left Pakistan, harmed their brother and BB.[73]
[72] CB 331, [96]
[73] Another sister of the first applicant
The Minister submits that the Tribunal’s finding as to the inconsistency between the first applicant’s claim that the Taliban took interest in the first applicant because she failed to make good her father’s promise that she and AA would be teaching at a madrassa is a finding made within the Tribunal’s jurisdiction. A finding as to the inconsistency between the first applicant’s claims made in her 24 February 2014 protection visa application[74] and the December 2018 submissions was a finding within the Tribunal’s jurisdiction.
[74] CB 69-71
Secondly, the Minister contends that the Tribunal’s difficulty with believing that the first applicant would continue to teach notwithstanding that she feared for her safety, so much so as to instruct an agent to make a visa application to any country for any visa category supported by information that may well be false,[75] is only a reflection of the inconsistency between the magnitude of the first applicant’s professed fear and her conduct. Any scepticism shown by the Tribunal was warranted and not undue.
[75] CB 321, [35]; CB 341, [160]-[161]
The applicants’ contention that the first applicant’s continued teaching was because it was her profession and she “simply… wished to continue at least part of her work” is not the answer given by the first applicant when the Tribunal invited her to comment on the Tribunal’s concern.[76] The submission is said to invite merits review.
[76] Annexure B of the affidavit of Renee Jane Quinn made on 27 October 2020, page 13:
Thirdly, the Minister submits that the Tribunal was entitled to find that it was inherently incredible that the first applicant would not take reasonable steps to lock the doors at her parents’ house of teaching if she genuinely feared the Taliban.
The Minister contends that the Tribunal’s difficulty with believing that the first applicant would fail to take reasonable precautions by locking the door of her parents’ home where she continued to teach was warranted.
There is said to be an inherent inconsistency between the serious steps that the first applicant took to avoid harm, including instructing an agent to make a visa application to any country for any visa category supported by information that may well be false[77] and requiring her brother-in-law or father-in-law to escort her to and from her marital home and her parents’ home,[78] and her failure to take reasonable precautions in the form of locking her door. Any scepticism shown by the Tribunal is said to have been warranted and not undue.
[77] CB 321, [35]; CB 341, [160]-[161]
[78] CB 335, [125]
The applicants’ contention that the Tribunal ought to have found that the first applicant did act consistently with the prevailing cultural practice that doors were not always locked in Pakistan invites merits review. In any event, it does not answer the reasons why the first applicant did not take reasonable precautions for her safety commensurate with the magnitude of her professed fear of the Taliban.
Fourthly, the Minister contends that the Tribunal had a basis to doubt that the Taliban desired to have the first applicant and AA, as women, teach fundamentalist jihad at a madrassa. The finding is said to be explicable on the basis that:
(a)the first applicant attributed to the Taliban the belief that their religion requires that women wear a burqa, look after their husband and educate their children;[79]
(b)the first applicant’s curriculum was in western subjects such as science, mathematics and English;[80] and
(c)the first applicant had no background in Sunni extremism or madrassas.[81]
[79] CB 321, [33]
[80] CB 321, [32]
[81] CB 339, [146]
The doubt is said to have been open to the Tribunal based on the evidence given by the first applicant and AA.
Fifthly, the Minister contends that the Tribunal was entitled to find that it was inherently incredible that the Taliban would invade the first applicant and AA’s parents’ house of teaching and demand that a meeting be held but not be concerned as to the time for performance or as to how the first applicant and AA were to inform the Taliban as to when that meeting would be scheduled.
The Minister submits that the Tribunal was entitled to doubt the veracity of the first applicant’s account of the Taliban’s alleged home invasion in January 2013. On the first applicant’s account, the Taliban showed up bearing arms,[82] interrupted the lesson then in progress[83] for the purpose of demanding that the first applicant convene on a subsequent date a meeting of the students and the parents[84] to tell the students that they were to henceforth be taught only at the madrassas.[85] The Taliban did not set a time for performance, [86] and the Taliban left without giving the first applicant any instructions as to how she was to inform the Taliban of when that meeting had been scheduled.[87]
[82] CB 321-322, [36]
[83] CB 321-322, [36]
[84] CB 322, [37]
[85] CB 322, [38]
[86] CB 338, [141]
[87] CB 338, [141]
The incongruity of the Taliban invading the first applicant’s parents' house of teaching with arms for the purpose of making rather impotent demands is a matter to which the Tribunal is said to have been entitled to take into account in assessing the first applicant’s credibility.
The Minister submits that the submission that the Taliban’s lack of concern for the time and date for performance or as to the method of informing the Taliban as to when that meeting would be scheduled could be explained by the fact that the Taliban knew where the first applicant and her parents lived invites merits review.
Sixthly, the Minister submits that the Tribunal found it difficult to accept that the first applicant and AA could present as highly intelligent people but remain unaware as to the contents of their student visa application made in early 2013 until the Tribunal brought the inconsistencies to their attention during the hearing in November 2019.[88] The finding is said to have been within the Tribunal’s jurisdiction to make. In any event, in light of the other difficulties with the first applicant’s evidence, even if error were made out with respect to this particular, the error would be immaterial.
[88] CB 342, [163]
Finally, the Minister submits that the Tribunal expressed concern that the death of the first applicant and AA’s father in 2009, being a relatively significant event, would have been omitted from their student visa applications.[89] The finding is said to have been within the Tribunal’s jurisdiction to make. In any event, in light of the other difficulties with the first applicant’s evidence, even if error were made out with respect to this particular, the error would be immaterial.
[89] CB 343, [169]
Resolution
The first applicant claimed that from at least 2009, she gave private tuition to students both at her parents' home and at the homes of her students.[90] In August or September 2012, AA had been harassed in the street by a group of men.[91] The first applicant was also similarly harassed by some men on the street and those men told her that their religion requires her to stay at home, wear a veil and care for her husband and children.[92]
[90] CB 321, [30]
[91] CB 321, [31]
[92] CB 321, [33]
The first applicant then claimed that after both the first applicant and AA had been harassed in this way, AA’s husband complained to the police about the matter. AA’s husband was then attacked after having made the police report. As a result of that experience, the first applicant came to believe that the men who harassed her were from the Taliban and the first applicant made a decision to flee Pakistan.[93]
[93] CB 321,[34]
The first applicant claimed that they “straightaway” went to an agent to arrange visas to leave Pakistan.[94] They told the agent as to the urgency of their need to leave Pakistan because of the threats to their safety, with the effect that the agent may have been motivated to provide false information and bogus documents as part of their family’s student visa applications.[95]
[94] CB 321, [35]
[95] CB 341, [161]
Meanwhile, the first applicant and her sister claimed to have continued to provide tuition to students, albeit they no longer visited students' homes and only provided tuition at their parents' home.[96] The first applicant’s husband gave evidence that, to this end, the first applicant and AA were escorted by car to and from their marital home and their parents' home.[97]
[96] CB 321, [35]
[97] CB 335, [125]
The first applicant then claimed that in January 2013, the Taliban entered her parents’ home while she and AA were giving tuition to students.[98] The Tribunal observed that despite the first applicant’s claimed fear of the Taliban, she made no attempt to secure the entrance to her parents' home because intruders could still have jumped over the fence to gain access.[99]
[98] CB 321, [36]
[99] CB 336, [130]
The first applicant then claimed that during the Taliban’s visit in January 2013, the Taliban complained that the first applicant and AA were educating students with a view to leave Pakistan and serve in the “western world”.[100] Having interrupted the first applicant and AA’s classes, the Taliban demanded that the first applicant and AA convene a subsequent meeting of the students by an unspecified time[101] and tell the Taliban of the date and time of that meeting by an unspecified means,[102] for the purpose of the first applicant and AA to tell their students in front of the Taliban that they would no longer be providing tuition to the students and that the students are to enrol at the madrassa where the first applicant and AA are to teach.[103]
[100] CB 325, [58]
[101] CB 338, [141]
[102] CB 338, [141]
[103] CB 338-339, [143]-[144]
The first applicant then claimed that some three years after the applicants fled Pakistan (in May 2013), the Taliban abducted one of her sisters (BB) and her brother in 2016 to send a threatening message to her.[104]
[104] CB 340, [153]
The Tribunal made adverse credibility findings in respect of each of four witnesses who gave evidence (the first applicant, AA, the first applicant’s husband and AA’s husband).[105]
[105] CB 343, [170]-[171]
The Tribunal specifically rejected the first applicant’s contention that she and AA provided tuition to students in Pakistan, that they were stopped on the street and threatened in 2012, that AA’s husband complained to the police and was attacked as a result, that in January 2013 the Taliban came to the first applicant’s parents’ home and demanded that a meeting be held and that the applicant and AA teach at a madrassa.[106]
[106] CB 344, [174]
As a result, the Tribunal found that there was no credible evidence before it that the first applicant or any member of her family suffered harm in Pakistan or that anyone in Pakistan seeks to harm them or as to their actual reasons for leaving Pakistan and their actual reasons for why they do not wish to return.[107]
[107] CB 344, [176]
Principles applicable to judicial review of adverse credit findings
I accept the Minister’s submissions as to the legal principles to be applied.
The principles applicable to determining whether there has been jurisdictional error in respect of an impugned finding on credit were summarised by Kenny, Kerr and Perry JJ in DAO16 at [30].
Relevantly, their Honours expressed the view in DAO16 at [30] that a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error, in order to ensure that the Court does not embark impermissibly upon merits review, and further that “to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’.”[108]
[108] Citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]
Principles applicable to judicial review on grounds of illogicality or irrationality
A decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.[109]
[109] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ
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.[110]
[110] SZMDS at [135] per Crennan and Bell JJ
For “a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, ‘extreme’ illogicality or irrationality must be shown ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal’.”[111]
[111] ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47] per Griffiths, Perry and Bromwich JJ, citing SZRKT at [148]
Principles applicable to review on the basis of legal unreasonableness
A decision made in the exercise of a statutory power will be unreasonable in the legal sense if it lack an evident and intelligible justification.[112]
[112] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] per French CJ
A conclusion of legal unreasonableness may also be reached when an underlying jurisdictional error in the decision making process is identified.[113]
[113] Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44] per Allsop CJ, Robertson and Mortimer JJ
The standard for legal unreasonableness is demanding.[114] This is because the courts do not lightly interfere with the exercise of statutory powers involving exercises of discretion.[115]
[114] TTY167 v Republic of Nauru (2018) 362 ALR 246 at [24]
[115] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] per Kiefel CJ
Principles applicable to review on the no evidence ground
Making a finding of fact where there is no evidence to support that finding constitutes an error of law.[116]
[116] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356 per Mason CJ; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [90]-[91] per Hayne, Heydon, Crennan and Kiefel JJ; Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775 at [62] per Jessup J, [83]-[84] per Jagot J
So long as there is some basis for an inference, in other words, the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review on the grounds of no evidence.[117]
[117] Bond at 356 per Mason CJ; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34] per Sundberg, Emmett and Finkelstein JJ
I prefer the Minister’s submissions in relation to this ground. In my view, the applicants’ contentions are an example of creative reconstruction of the applicants’ claims and evidence. On the material before it the Tribunal’s adverse credibility findings were open to it for the reasons it gave.
Ground 3 – did the Tribunal fail to give proper, genuine and realistic consideration to the first applicant’s claims?
Applicants’ contentions
The applicants contend that the Tribunal was obliged to give proper, genuine and realistic consideration to the first applicant’s claims in accordance with the principles summarised in SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[118] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19.[119]
[118] [2020] FCA 944 at [25]-[31] per Colvin J
[119] [2020] FCAFC 166 at [15] per McKerracher, Kerr and Wigney JJ
The real risk of harm test is forward-looking, albeit that findings on past harm can inform whether there is a risk in the future.[120]
[120] See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, 574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; EBY17 v Minister for Immigration and Border Protection [2019] FCA 222 at [61] per Bromwich J
In the present case, the Tribunal is said to have failed to consider the first applicant’s claim that she was at risk of harm if she returned to Pakistan as a highly educated woman (see, for example, the December 2018 submissions and the further letter dated 2 December 2019[121]). This risk of harm is said to have been heightened in the first applicant’s case because she held an opinion against the Taliban (see the December 2018 submissions). It is understood from the Minister’s submissions dated 1 September 2020 that there is no dispute that the Tribunal did not make specific findings in relation to this claim.[122]
[121] CB 307
[122] See [51] and [55] of those submissions
The Minister’s contention is that these claims were “subsumed” into the Tribunal’s findings on risk of harm to Sunni Muslims.[123] The applicants accept that it may be unnecessary to make a finding on a particular issue because it is subsumed in findings of greater generality.[124]
[123] At [55] of the Minister’s submissions dated 1 September 2020
[124] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47] per French, Sackville and Hely JJ
However, the Minister’s position is said to be erroneous. Whether or not a person has a real fear harm as a member of an educated family or as an educated woman (and who also holds an opinion against the Taliban) does not accord with the risk generally faced by Sunni Muslims.
The applicants contend that, in contrast to the position in EBY17, the claims of the first applicant as to being targeted by the Taliban as a teacher (which the Tribunal rejected) were not the “wellspring” of her claim to be at risk of harm on return as a highly educated woman. Rather, this is said to have been an independent claim that the Tribunal simply failed to address in circumstances where the Tribunal accepted that the first applicant was “highly educated” and “highly intelligent”.[125]
[125] See [163], [184]
In light of the above, the applicants submit that the Tribunal has failed to give proper, genuine and realistic consideration to the first applicant’s claims and has therefore committed jurisdictional error.
Resolution
I prefer the Minister’s submissions on the remaining ground. There is no substance to the first applicant’s contention at [106] above that the Tribunal failed to have regard to her claim that she had a well-founded fear of persecution on account of being a highly educated woman.
It may be unnecessary for the Tribunal to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.[126] In the present case, there is no dispute that the first applicant is a highly educated woman.
[126] Applicant WAEE at [47] per French, Sackville and Hely JJ
Nevertheless, the first applicant’s contention that she feared persecution as a highly educated woman is answered completely by the Tribunal’s finding at [176]. The Tribunal disbelieved each element of the first applicant’s claim, including any interaction that she had with any member of the Taliban. That premise being rejected, there is no basis for the Tribunal to find that, independently of her claimed interaction with the Taliban, she could have a well-founded fear of persecution as a highly educated woman.
There is no factual predicate upon which the Tribunal could have made the finding that the first applicant could have a well-founded fear of persecution on the basis of an actual or imputed political opinion against the Taliban. There is no evidence of any occasion, other than in the course of making her protection visa application, where the first applicant expressed a political opinion against the Taliban.
CONCLUSION
The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 19 August 2021
SCHEDULE OF PARTIES
SYG 349 of 2020 Applicants
Fourth Applicant:
AST20
Q 57: So then, [redacted], I just want to put to you some concerns about the story that you and your sister have told me. So the first one is that you said in 2012 you and your sister are on the street, the Taliban come up and tell you you stay at home and look after your husband and then your sister’s husband goes to the police and complains. The next day he gets attacked and you’re all frightened and you all decide you must leave Pakistan. I just have some difficulty then having made that decision you and your sister would take the risk of continuing to teach children. Do you wish to comment?
A: First thing is when they met us first time they asked us to stay indoors, not to leave home and also they asked us to cover ourself. At that time we were not aware that they were having problem with our jobs and then when [redacted] was beaten in such a bad way that’s when we realised because he went to complain and that’s why he was beaten up so badly and we couldn’t understand the connection that they wouldn’t even like us giving this tuition at our home.
1
22
0