Atf17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 591

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 591

File number(s):	MLG 347 of 2017
Judgment of:	JUDGE EGAN
Date of judgment:	25 March 2021
Catchwords:	MIGRATION – Applications for protection visas – whether s. 424A obligation enlivened – whether a change of story constituted “information” for the purposes of s. 424A of the Act – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 352, 424A, 424A(1).
Cases cited:	SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. Minister for Immigration and Citizenship v SZLFX [2009] HCA 31. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Number of paragraphs:	35
Date of last submission/s:	15 March 2021
Date of hearing:	2 March 2021
Place:	Brisbane
Solicitor for the Applicants:	WLW Migration Lawyers
Counsel for the Applicants:	Mr Aleksov
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the First Respondent:	Ms Grinberg
Second Respondent	Submitting appearance save as to costs

ORDERS

MLG 347 of 2017

BETWEEN:

ATF17

First Applicant

ATH17

Second Applicant

ATI17 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	25 MARCH 2021

IT IS ORDERED THAT:

1.The Further Amended Application for Review filed on 24 November 2020 be dismissed.

2.The First Applicant and Third Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount $7,467.00

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicants were Shia Muslim citizens of Pakistan who arrived in Australia as the holders of visitor visas on 1 June 2001. They are members of a family group. The first applicant is the father and husband, with the remaining applicants being the mother and wife and two sons.

2. On or about 16 July 2001, the applicants applied for protection visas. The first applicant made his own protection claims and the other claims were made in a family unit context.

3. On 7 November 2001, a delegate of the Minister refused the first protection visa application. On 11 December 2001, the applicant applied to the Refugee Review Tribunal for review of that decision. On 30 November 2003, the Refugee Review Tribunal affirmed the decision of the delegate. Subsequent appeals to the Federal Court and the High Court were dismissed.

4. Both the delegate’s decision and the Refugee Review Tribunal’s decision were made prior to the commencement, on 24 March 2012, of the complimentary protection criterion under s. 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’). Since their arrival in Australia, the husband and the wife had two female children in 2003 and 2006 respectively. Due to their having lived continuously in Australia for a ten (10) year period, each such daughter has attained Australian citizenship.

5. On or about 8 May 2014, the applicants made further application for protection visas. The first applicant applied under the Complimentary Protection Criteria as provided for under s. 36(2)(aa) of the Act. The other applicants made their own claims for protection under both s. 36(2)(a) and s. 36(2)(aa) of the Act.

6. On 7 August 2015, a delegate of the Minister refused to grant the visas.

7. On 3 September 2015, the applicants applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.

8. On 7 November 2016 and 9 December 2016, the applicants attended a hearing before the Tribunal to give evidence and present arguments.

9. On 9 February 2017, the Tribunal affirmed the decision of the delegate.

   Consideration of Applicants’ Claims

10. At [5] – [15] inclusive of its reasons, the Tribunal correctly set out the relevant law as to the meaning of refugee under the Act, and what constituted a well-founded fear of persecution. At [16] – [18] inclusive of its reasons, the Tribunal set out the relevant law as to what was needed to satisfy the complimentary protection criteria under s. 36(2)(aa) of the Act, as well as what constituted significant harm.

11. At [27] – [32] inclusive of its reasons, the Tribunal recorded the first applicant’s general claims as follows:

    “[27] The first named visa applicant stated in a statutory declaration attached to his claim for complementary protection dated 17 April 2014, that he is a Shia Muslim, who came to Australia in 2001. He stated he was a member of Shia religious organisation known as Tehrik-e-Jafria (TeJ), and was the General Secretary of the [district omitted] for the organisation.

    [28] The first named visa applicant stated on 18 April 2001 there was a big strike in Karachi. He stated there were two bomb blasts on that day and three persons were killed and many were injured. The first named applicant declared that a rival party Sipah-e-Sahaba Pakistan (SSP), claimed that theTeJ was responsible for the bomb blasts and further filed a case with the police against the first named visa applicant and other members of the TeJ. The first named visa applicant was accused of being the mastermind of the bomb blasts. The first named visa applicant stated he was ‘targeted’ as a high profile business man, who had hired a building, registered a company and hired workers, and promised to hire other workers for his Japanese company employers. The first named visa applicant stated he had been employed by the Koba company from October 1997, and had been working for that company in Karachi from December 1999.

    [29] In his original signed statement made to the Refugee Review Tribunal which is not dated but attached to a letter from his representative dated 3 December 2001, the first named visa applicant stated that the “party and I were also participated in the strike.” At the resumed hearing on 9 December 2016, he stated that was incorrect as he did not participate in the strike, and must have been an error on behalf of his representative.

    [30] The first named visa applicant stated that he left Pakistan on 21 April 2001 to attend his business in Bangkok, Thailand but was advised that he had been accused of being involved in the bomb blast. He returned to Karachi and was arrested by the police at his home. He stated he was taken to court and was remanded for three days for investigation. The applicant stated the police investigators were Sunni Muslims, and tortured him physically and mentally whilst he was in custody. The first named applicant stated he confessed he was involved in the bombing and the police made in sign some papers. The first named applicant stated after three days other members of the TeJ arranged for him to be released and help him to escape from Pakistan, and he left Pakistan on 26 May 2001. The first named applicant stated a report was presented by the police that he had confessed to being involved in the bomb blast case and the Court commenced prosecuting the case against him. The first named visa applicant stated there is no place in Pakistan he could reside where he would not be at real risk of significant harm.

    [31] The first named visa applicant stated that his father, [name omitted] was shot and murdered in 2008 in the city of Rawalpindi. The applicant stated he was not a political activist and was killed simply because he was a Shia Muslim.

    [32] The first named applicant claims the authorities in Pakistan would harm him, and also Sunni militants, particularly members of the SSP would harm him. The applicant claims he would be harmed because of his Shia religion, because he was a former General Secretary of the TeJ in Pakistan and because he is a Shia person who has been active in a religious organisation and subject to fabricated criminal charges.”

    [names of persons and districts omitted]

12. As to inconsistencies between what the first applicant had originally claimed about his involvement in the 2001 bomb blasts at the time of the Karachi water strike, and his alleged subsequent persecution by police investigators, as compared with the claims made in the first applicant’s subsequent statements and evidence provided/given by him at the time of the Tribunal hearings, at [33] – [40] of its reasons the Tribunal said as follows:

    “[33] The tribunal found the following sources of information about the happenings in Karachi on 18 April 2001. The Guardian reported at that two political groups had called the strike due to water supplies being held back upstream. The report recorded that two bombs had killed one person and injured two others during the widespread strike in protest against the waters shortages. The article named the political parties that called the strike, which were the Muttahida Qaumi Movement (MQM) and the Jiye Sindh Qaumi Mahaz (JSQM).

    [34] The Relief Web International report entitled Pakistan Water Shortage Protests Turn Deadly published 17 April 2001 (?) but dated Islamabad 18 April 2001, reported that two persons  were seen carrying the bomb which exploded whilst they were carrying it. One person was killed and one was injured. The report said no one has claimed responsibility. This report also recorded that the strike was called by two opposition political parties, the MQM and the JSQM. The report recorded that security has been tightened following the two bomb blasts which coincided with the one-day strike in protest against water shortages.

    [35] An unentitled report that recorded events in Pakistan on the site recorded that on April 18 2001 police arrested over 200 MQM workers in Karachi after they burned seven buses in a protest against irrigation shortages, and on April 19 two bombs exploded in Karachi killing two, and over 40 vehicles were burnt in violence during the strike against water shortages.

    [36]The World’s Water 2008-2009: The Biennial Report on Freshwater Resources by Peter H Gleick and Michael J Cohen, published by Island Press recorded civil unrest and protests in March and April which continued into the summer in Pakistan as a result of severe water shortages caused by long-term drought resulted in riots, bombs in Karachi which resulted in one death, 12 injuries and 30 arrests.

    [37] The tribunal was provided with the first named applicant’s original file when he sought protection which included documents that he had provided in support of his claim. This included a document certifying that the applicant was an active member of the TeJ, and the General Secretary of the TeJ, in Jhang Sadar. The applicant had also provided an article from The News International dated 18 April 2001, which reported that one person died and another was injured on Wednesday in two bomb blast after a night of violent unrest over water shortages and alleged police brutality will stop the article recorded that one person suspected to be a bomber was torn to pieces as a bomb went off in his hand and another was injured. The article also recorded that the groups MQM and JSM had been complaining about the water shortages to the Sindh province and people from that area had responded to their strike call.

    [38] In his earlier claims attached to his application in 2001 the first named visa applicant stated “my party and I also participated in the strike. In the past three days before 18 April more than 200 people were arrested by the authorities”. In the applicant’s statutory declaration attached to his claims in 2014 the applicant does not refer to participating in the strike.

    [39] In the hearing on 7 November 2016 the applicant told the tribunal that he was a simple religious person. He stated that he became attached to the TeJ because it was the biggest Shia group in Pakistan and he needed support and references. The applicant stated that all political and religious groups in Pakistan are related to business. He stated he was a member and attended meetings of the TeJ but that could not remember how many meetings that he attended. The applicant stated that when he was living in Jhang, he attended meetings. He stated he completed his bachelor degree in Jhang, and completed his master degree in Lahore. He stated he had worked in Bangkok and had recently started work for the same company setting up an office in Karachi. At that time when he used to go and visit his father he would attend meetings of the TeJ in Jhang. The first named visa applicant stated he participated in the meetings of the TeJ, but did not have a prominent role; he stated he was not a General Secretary of any district of the TeJ.

    [40] The tribunal discussed with the applicant the document he had provided stating he was a general secretary of the organisation and read out to him the paragraphs from his statutory declaration dated 17 April 2014 in which he declared he was a General Secretary of the organisation. The first named visa applicant stated he was not and never have been a General Secretary of the organisation. He stated he had asked for a letter from the organisation to confirm his participation with the organisation, and had provided the letter with his applications. The first named visa applicant stated that he was in Karachi at the time of the bomb blasts, but that his presence in the town was the limit of his involvement.”

    Grounds of Review

13. The Amended Application for Review filed on 24 November 2020, which was relied upon by the applicant at the hearing before the Court, had one (1) Ground of Review which was as follows:

    “Grounds of application

    1. The decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) in respect of the information contained in the applicant’s earlier RRT review.

    Particulars

    a.   The first applicant initially gave information in the case of the second, third and fifth applicants that he had attend a strike which led to him suffering adverse treatment.

    b.   At hearing the first applicant recanted that evidence and said that he had not attended the strike.

    c.   The first applicant’s attendance at the strike was a material aspect of the case before the Tribunal of the second, third and fifth applicants.

    d.   The first applicant’s evidence to the Tribunal, as a witness in the case of the second, third and fifth applicants, was that he did not attend the strike.

    e.   The evidence of the first applicant, as a witness in the case of the second, third and fifth applicants, was information that engaged the obligation under s 424A in respect of the each of the second, third and fifth applicants.

    f.    The Tribunal did not comply with that obligation.”

14. Section 424A of the Act relevantly provided as follows:

    “424A  Information and invitation given in writing by Tribunal

    (1)Subject to subsections (2A) and (3), the Tribunal must:

    (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)  invite the applicant to comment on or respond to it.

    (2)       The information and invitation must be given to the applicant:

    (a)  except where paragraph (b) applies—by one of the methods specified in section 441A; or

    (b)  if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

    (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

    (2)This section does not apply to information:

    (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)  that the applicant gave for the purpose of the application for review; or

    (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c)  that is non‑disclosable information.

    (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

15. The applicant’s claims were set out in the applicant’s updated consolidated submissions filed on 5 March 2021, and were as follows:

    “1. The essential allegation in each case is that the Tribunal used “information” within the meaning of s 424A of the Migration Act adversely to each of the second, third and fifths applicants, without complying with the prescriptive requirements of s 424A.

    2.        That situation arises in the following way:

    (i) The first applicant initially gave information in the case of the second, third and fifth applicants that he had attended a strike which led to him suffering adverse treatment (Reasons [29]).

    (ii) At hearing the first applicant recanted that evidence and said that he had not attended the strike (Reasons [29]).

    (iii) The first applicant’s attendance at the strike was a material aspect of the case before the Tribunal of the second, third and fifth applicants (Reasons [70]-[71]; [103]-[104]).

    (iv) The evidence of the first applicant, as a witness in the case of the second, third and fifth applicants, was information that engaged the obligation under s 424A in respect of the each of the second, third and fifth applicants.

    (v) That evidence (the recanting of the earlier story) directly undermined the claim made by the second, third and fifth applicants that their father had been adversely treated as a result of having attended a strike (as recorded at Reasons [70]-[71]; [103]-[104]). It was plainly part of the reason for affirming the decision under review, noting that the Tribunal rejected (unsurprisingly) that the first applicant had attended a strike (Reasons [52]).

    (vi) The evidence was just an “inconsistency” in evidence. It was an express retraction of prior evidence. In any event, the cases in relation to s 424A not being triggered in relation to mere inconsistencies apply in relation to a review applicant’s own evidence and not to the present situation.

    (vii) Neither s 424A(3)(b) nor s 424A(3)(ba) assist the Minister. Authority on these provisions is usefully set out at pages 860-861 of the text “Migration Law” published by Lawbook in 2016. The “applicant”, for the purpose of these provisions, is the review applicant. In this case, that is the second, third and fifth applicants; not the first applicant. The evidence of the first applicant was not given to the Tribunal by the second, third and fifth applicants; rather, it was extracted by the Tribunal under questioning of that witness. Plainly, the information was not given during the departmental process.

    3. In SAAP, a majority of the High Court held that a failure by the Tribunal to comply with s 424A(1) of the Act in the course of making a decision will render the decision invalid. Compliance with s 424A(1) is mandatory; every failure to comply with s 424A(1) gives rise to jurisdictional error.

    4. The Minister also says that the Court should refuse relief in the exercise of discretion. That same argument was made and rejected in SAAP. The same outcome should follow in this case.

    5. If the Court accepts this argument, it applies directly only to the second to fourth applicants, but not the first applicant (the father). That is because, in relation to first applicant, the relevant s 424A problem does not arise as it was simply an “inconsistency” in his own evidence.

    6. Nonetheless, the decision in respect of the first applicant must also be quashed because the first applicant could obtain a visa as a family member of his wife, and so, the quashing of the decision in her case sufficiently affects his case to justify the decision in his case also being quashed. That is, if the decision with respect to the wife was invalid and must be reconsidered, and assuming that the Tribunal on remittal found that the wife was owed protection, the husband would also be granted a protection visa on the basis that he meets s 36(2)(b) and/or s 36(2)(c).

    7. There is only a single decision in relation to the father, but it is based on a failure to meet the criteria in ss 36(2)(a), (aa), (b) and (c). If the decision in respect of any one of these criteria is invalid, the whole of the decision must be quashed. That is the result of the remedy of a constitutional writ, which is a blunt instrument – it quashes the whole of the decision or none of it. If the decision in relation to the wife is to be quashed, it follows that the decision in relation to the father was invalid, insofar as it found that the applicant failed s 36(2)(b) and (c). That must be quashed, but there is no way to “sever” that part of the decision. The decision in relation to the first application must be quashed in toto.

    8. It is also noted that the first applicant’s youngest two children, both minors, are Australian citizens. Australian government policy is not to separate the family unit.”

    (footnotes omitted)

1. Factually, there are aspects of the particulars in the Ground of Review, and the submissions of the applicant, about which the Court has reservations.

2. As to Ground 1(a) of the Further Amended Application for Review, the Court was unable to find in either the transcript of the subject Tribunal hearings, [1] or in the two (2) statutory declarations accompanying the subject protection visa applications provided to the Tribunal, [2] or in any of the most recent protection visa applications made on behalf of any of the applicants, [3] any reference to the first applicant having claimed to have attended the Karachi strike in April 2001 (or any strike at any other time) which caused him to suffer “adverse treatment”. Nor was there any positive assertion that that was the case by the second, third or fifth applicants in either their evidence or in any statement provided to the Tribunal by any of the applicants in support of their claims. What the first applicant did say in answer to a question put to him by the Tribunal member, as recorded at p. 16 of the 7 November 2016 transcript, [4] was that he wasn’t present at the time of the Karachi strike and bomb blast, and that he only found out about the bomb blast after he had returned to Bangkok. The transcript was as follows:

   “Member: And then there’s the Relief Web recorded that there were two bomb blasts on the 18th which killed 1 person and coincided with the strike and it also recorded that 2 persons were seen carrying 1 bomb which exploded in their hands and 1 person was killed and that was seen, so the death of that person and the actual perpetrator was viewed by the police being seen. Um, and, then there’s a site called double-o cities which is a website that recorded that two bombs exploded on the, in Karachi on that day killing two people, 40 vehicles were burnt during the strike against water shortages and the police had arrested over 200, it says, MQM workers which I assume is that political party, um, after they burned 7 busses in protest over the water shortages. So, there seems to be certainly confirmation that there were the bombs and that between 1 and 2 people died and that a number of people were arrested and there was certainly seems to have been a lot of mayhem in the town. So that’s the information that I can find out. What do you want to tell me about what you know?

   Applicant: I was in Karachi but I didn’t even know that the bomb blasted because bomb blast is just like is hardly [inaudible]… the bomb blast in Karachi is like, its just like blasting … the fire and doing this one …? Its just like fireworks they doing. Bomb blast isn’t a big issue in Pakistan. I didn’t know about it and when I came here, only then I find out … No Bangkok, when I came to Bangkok only then I found out that my name was involved in this”

   [1]           Annexure SV-1 to the Affidavit of Ms Vejar filed on 10 August 2020.

   [2]           Court Book (Ex 1) CB pp. 314 - 319

   [3]           CB pp. 235 - 313

   [4]           Annexure SV – 1 to the Affidavit of Ms Vejar filed on 10 August 2020.

3. Further, the Court was unable to accept the submission made at 2.(v) of the applicant’s submissions, which submission was to the effect that the second, third and fifth applicants had made a claim, as part of their visa applications before the Tribunal, that the first applicant had been treated adversely because he had attended the Karachi strike in April 2001. The quoted paragraphs of the reasons of the Tribunal relied upon by the applicant in support of that submission do not record that the second, third and fifth applicants made any such claim. Rather, those paragraphs merely recorded findings made, and analysis undertaken, by the Tribunal in its consideration of the first applicant’s claims. Having done so, the Tribunal made findings which were adverse to his credibility.

4. As noted in [37] of the reasons of the Tribunal, the first applicant’s original file in support of his application for a protection visa was also provided by the Secretary of the Department to the Tribunal. The Court infers that that was done under s. 352 of the Act because it was considered that all of the information on the original file was relevant to the 2015 review of the decision of the delegate in respect of the first applicant’s complimentary protection application, as well as in respect of the protection applications filed on behalf of the second, third and fifth applicants pursuant to both s. 36(2)(a) and s. 36(2)(aa) of the Act. There is no indication, however, upon a reading of either the material in the Court Book, or the transcripts of the subject Tribunal hearings, that the first applicant or the second, third and fifth applicants respectively relied upon the claim in the first applicant’s 2001 statement – namely that he was present at the time of the water strike and bombing in Karachi in April 2001 – in respect of the ground of review before this Court.

5. Further, as to the submission at 2.(v) of the applicant’s consolidated submissions, the letter from RPM Lawyers to the Department dated 5 May 2014 which enclosed the subject protection visa applications, and the supporting material attached thereto, [5] did not call in aid, or assert reliance upon, the contents of the first applicant’s 2001 statement in which he claimed that he was in attendance at the time of the Karachi strike and bombings. The two (2) Statutory Declarations attached to that letter were respectively from the first applicant and the fifth applicant, and neither made any such claim. Rather, each such declaration adverted to the fact of the Karachi strike and bombings, but neither suggested that the first applicant was then present at such strike when the bombings occurred. So much is consistent with what the first applicant said at p. 16 of the Tribunal hearing transcript as recorded above. Nowhere in the transcript was any such claim made.

   [5]           Court Book (CB) p. 216 – 456. 

6. True it was that the first applicant’s 2001 statement about his being present at the time of the Karachi strike and bombings differed from what he said in evidence before the Tribunal, but such obvious inconsistency was not relevantly “information” which ought to have enlivened the operation of s. 424A(1) of the Act. The fact that the first applicant had changed his story was not information which would, as opposed to could, be the reason, or part of the reason, for the Tribunal affirming the decision under review. It was part of the factual matrix which the Tribunal may have had regard to as part of its reasoning process when assessing whether protection obligations were, or were not, owed to any of the applicants based upon the credibility of the first applicant’s claims for protection. That such change of story by the first applicant may have been the subject of consideration does not render it information for the purposes of the section. Were that to be the case, the Tribunal would be required to incessantly give written s. 424A notices in respect of each and every evidentiary inconsistency in each and every matter before it. That was surely not the intention of Parliament.

7. The Tribunal, at [47] – [53] inclusive of its reasons, when considering the first applicant’s claims in the context of both country information and inconsistencies in the first applicant’s evidence, said as follows:

   “[47] Based on the country information available the tribunal does not accept that the TeJ was implicated or accused of being involved in the bomb blasts or the strategy behind the bombings. The country information does not record any organisation claiming responsibility for the bombings. The scale of the strikes in response to the water shortages, and the violence that erupted in the strikes, is the overwhelming feature in the country information. The country information available does not record that the first named applicant was arrested as the mastermind of the bomb attacks, or was arrested at all, or was released, or escaped while under guard in relation to any offences committed on 18 April 2001 during the strikes in Karachi. The tribunal invited the first named visa applicant to provide information that recorded that he was involved and was arrested and detained, and to provide information that confirmed the opposing religious militant organisations either claimed responsibility for the bombings and violence or alternatively made accusations for the responsibility for the bombings and violence. The tribunal invited the first named visa applicant to provide any further information by 27 December 2016. The tribunal did not receive further information from the first named visa applicant in relation to claim that he was involved, or accused of being involved, or charged with being involved in the bombings at the Karachi water shortage strikes on 18 April 2001.

   [48] The tribunal has made enquiries as to whether there is any record of the first named applicant being arrested, detained, released, charged or being a person of interest in relation to the bombings, the planning of the bombings, or any activity related to the strikes in Karachi ion 18 April 2001.The tribunal invited the first named visa applicant at the hearing, and advised him it would also make similar investigative enquiries, to provide or find evidence that would record the first named visa applicant was accused of being involved, and was arrested, detained, escaped, charged and has a warrant for his arrest in relation to the bombings during the Karachi water shortage strikes in April 2001. The tribunal requested the Department through the overseas ‘post’ at the Karachi Embassy to make the enquiries on its behalf. The tribunal was advised that without the First Information Report or (FIR) the ‘post’ was unable to check for records of arrest, detention, charges, or court processes. There is no readily available record that the first named visa applicant has a warrant out for his arrest for terrorist related charges or an outstanding sentence to be served, or is wanted on incoming control lists at airports. The tribunal also searched the internet, and there is no record of the first named visa applicant’s name recorded in the articles or books referred to in connection with the Karachi water shortage strike and the bombing in April 2001 (all located articles are identified and referenced in this decision record). The tribunal has not obtained any independent evidence that the first named visa applicant was detained or arrested in 2001, or that there is a warrant out for his arrest or pending charges or a sentence imposed in his absence.

   [49] The tribunal has noted the inconsistency in the first named applicant’s evidence in the hearing when he stated he had never held a prominent role or held the position of Secretary- General of a district within the TeJ. The tribunal has considered the oral evidence with the written evidence of the first named applicant including his statutory declaration dated 17 April 2014 at paragraph 11 “I was a member of the Shia religious organisation Tehrik-e-Jafria Pakistan and General Secretary of the [district omitted] for the organisation” and the certified copy of the letter on TeJ letterhead confirming he is an active member and a Secretary General in the year 2000.

   [50] The tribunal has noted the inconsistency in the applicant’s statement in December 2001 that he participated in the strikes, with his subsequent evidence that he did not participate in the strikes.

   [51] The tribunal discussed the inconsistent evidence with the first named visa applicant, and has taken into account his responses. The first named visa applicant stated he was given the document that recorded he was secretary general of a district for the TeJ, and had not requested it. The first named visa applicant also noted the length of time since he was in Karachi and the basis of his claims occurred. The tribunal accepts that there has been a significant amount of time since the first named visa applicant left Pakistan, but does not accept that the first named visa applicant was not aware of his activities or role in the TeJ, or the genuineness of the document provided in support of his claim. The tribunal finds that the first named visa applicant continued to claim he was a secretary general of the TeJ in his statutory declaration dated 17 April 2014 provided in support of the current application, and he provided the document that stated he was a secretary general of the TeJ to this tribunal. The tribunal finds the first named visa applicant is not a credible witness, and has provided unreliable information.

   [52] The tribunal has assessed the evidence before it and makes the following findings. The tribunal finds that the first named visa applicant was not a secretary general of the TeJ. The tribunal finds the first named visa applicant provided a fraudulent document in support of his application in 2001 that stated he was a secretary general of the TeJ. The tribunal finds the first named visa applicant has provided false information in stating in his written evidence that he was a secretary general of the TeJ. The tribunal finds the first named visa applicant is not a person who has been active or prominent in other Shia religious or political organisations. The tribunal finds the first named visa applicant did not participate in the water strikes in April 2001. The tribunal finds that the first named visa applicant was not arrested and accused of participating or masterminding any bomb activity in the water shortage strikes in Karachi in April 2001. The tribunal finds the first named visa applicant was not considered a high profile person or person of interest to Sunni militant groups in 2001 or any time since. The tribunal finds the first named visa applicant was not involved in any political or religious group in a prominent role. The tribunal finds the first named visa applicant has not been arrested and tortured and accused of being involved in political acts or terrorists acts. The tribunal finds the first named visa applicant was not a member of the Tej as he claims. The tribunal finds there are not grounds for accepting the first named visa applicant will become a member of the TeJ, or attend meetings, or assume a leadership role, or attract a high profile within the TeJ, if he returns to Pakistan.

   [53] The tribunal finds the first named visa applicant has not suffered significant harm in April or May 2001 as he claims. The tribunal finds that the first named visa applicant was not accused, arrested, detained, charged or sentenced in his absence in 2001 in relation to the bombings in Karachi. Further, the tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the first named visa applicant being removed from Australia to Pakistan there is a real risk he will suffer significant harm because there is a warrant out for his arrest, or because he has been sentenced in his absence in relation to the bombings in Karachi in April 2001, or because he has a high profile due to his membership, position or activities within the TeJ.”

   (name of district omitted)

8. The Tribunal closely considered all of the evidence before it, including relevant country information, and made adverse credibility findings against the first applicant. It was entitled to do so after weighing up such evidence both singularly and cumulatively. It found that the first applicant was not owed any protection obligations under s. 36(2)(aa) of the Act.

9. At [70] – [71] of its reasons, the Tribunal found that the protection claims of the second and third applicants had not been made out, based as they were upon the acceptance by the Tribunal of the first applicant’s protection claims. Similarly, at [101] – [116] of its reasons, the Tribunal rejected the fifth applicant’s claims for protection under both s. 36(2)(a) and s. 36(2)(aa) of the Act.

10. It was submitted on behalf of the applicant by Mr Aleksov of Counsel that there had to be strict compliance with s. 424A, even though there was no evidence, on the face of the record, that there had been any procedural unfairness in the conduct of the Tribunal hearings. Reliance was placed upon SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 where, at [77], McHugh J said as follows:

    “[77] However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.”

11. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, when considering what the word “information” in s. 424A of the Act meant, said at [17] – [22] as follows:

    “[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

    [18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "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".

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

    [19] Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing15, no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the Tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.

    [20] Moreover, supposing the appellants had responded to a written notice provided by the Tribunal after the hearing, if inconsistencies remained in their evidence, would s 424A then oblige the Tribunal to issue a fresh invitation to the appellants to comment on the inconsistencies revealed by – or remaining despite – the original response to the invitation to comment? If so, was the Tribunal obliged to issue new notices for so long as the appellants' testimony lacked credibility? If the appellants' desired construction of s 424A leads to such a circulus inextricabilis, it is a likely indication that such a construction is in error.

    [21] The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal. That being so, this case does not require this Court to address the differences in opinion in the Federal Court concerning the "unbundling" of Tribunal reasoning16.

    [22] Once the limited scope of s 424A is appreciated, and once the proper meaning of the word "reason" in s 424A(1)(a) is discerned, the apparent need for "unbundling" is correspondingly reduced. The respondent Minister's concern about "minor" or "unimportant" matters engaging s 424A is largely to be resolved by the proper application of s 424A itself, not by any extra-statutory process of "unbundling".”

    (footnotes omitted)

1. Further, in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 it was said at [22] – [25] per French CJ, Heydon, Crennan, Kiefel and Bell JJ as follows:

   “[22] Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a "rejection, denial or undermining" of the review applicant's claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT's failure to mention the file note.

   [23] This approach was, with respect, flawed given the following observations in SZBYR:

   "[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1). … However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence."

   [24] As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT's "consideration", that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had "considered" or had any opinion about the file note.

   [25] As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which "would", not which "could" or "might", be the reason or part of the reason for affirming the decision under review.”

   (footnotes omitted)

2. The facts of the matter before the Court were distinguishable from those before the Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. The Tribunal’s disbelief of the first applicant’s claims did not relevantly constitute information within the meaning of s. 424A(1)(a). The Court accordingly is not required to apply SAAP to the facts of the matter before the Court.  

3. Like SZBYR, the Tribunal in the matter before the Court found that there was no relevant convention nexus. The obligation on the part of the Tribunal was to first determine whether there was any relevant protection obligation owed to the applicants. It carried out its statutory function in a logical and considered way. It did not err in doing so. As was said in SZBYR at [29]:

   “[29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". In this regard, the references that were made in the course of argument to the "unbundling" of a Tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”

   (footnotes omitted)

4. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130]In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and 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. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

5. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

6. The applicants have failed to establish jurisdictional error on the part of the Tribunal in respect of either the first applicant’s claim or the claims of the second, third and fifth applicants.

7. The submission that the first applicant’s claim must be allowed on the basis that he is a family member of each of the second, third and fifth applicants is without merit. Such claim was dependent upon the success of the claims of the second, third and fifth applicants. Such claims failed.

8. The Ground of Review is without merit and is dismissed.

9. The Court will hear the parties as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       25 March 2021

SCHEDULE OF PARTIES

MLG 347 of 2017
Applicants
Fourth Applicant:	ATJ17