ATU19 v Minister for Home Affairs

[2019] FCCA 3042

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATU19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3042

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa (SHEV) – adverse credibility findings – implausible claims – country information relied upon – home area considerations – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB, 473DD(a).

Cases cited:

Minister for Immigration v SZMDS (2010) 240 CLR 611.

MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256.

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

Re Minister for Immigration and Multicultural Affairs; Ex Parte

Durairajasingham (2001) 74 ALJR 405.

Hossain v Minister for Immigration (2018) 264 CLR 123.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594.

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429.

Applicant: ATU19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 186 of 2019

Judgment of: Judge Egan

Hearing date: 25 September 2019

Date of Last Submission: 25 September 2019

Delivered at: Brisbane

Delivered on: 25 October 2019

REPRESENTATION

Counsel for the Applicant: Mr S. Keim SC

Solicitors for the Applicant: Chand Lawyers

Counsel for the Respondent: Mr J. Byrnes

Solicitors for the Respondent: MinterEllison

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application for review filed on 26 February 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 186 of 2019

ATU19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a Sunni Tajik male citizen of Afghanistan from Ghazni province.

2. The applicant arrived in Australia on 6 June 2013 as an unauthorised maritime arrival. An entry interview took place at Christmas Island on 14 June 2013.

3. On 11 July 2017 the applicant made application for a Safe Haven Enterprise Visa (SHEV). He attended an interview before the Minister’s delegate on 19 June 2018.

4. On 9 October 2018 the delegate refused to grant the visa to the applicant. On 12 October 2018 the matter was referred to the Immigration Assessment Authority (the Authority) for review.

5. On 2 November 2018 the applicant provided further submissions and material to the Authority.

6. On 30 January 2019 the Authority affirmed the delegate’s decision not to grant to the applicant the visa.

7. On 26 February 2019 the applicant filed an Originating Application seeking review of the decision of the Authority. The Grounds for review relied upon by the applicant are as follows:

   “Grounds of application

   1. That the decision was affected by jurisdictional error in that the Second Respondent's ("the Authority's") findings were affected by illogical and irrational reasoning processes resulting in a decision that was unreasonable:

   (a) The conclusion that the Applicant was not a refugee:

   (i) As part of exercising its jurisdiction in reviewing the decision of the delegate that the Applicant was not a refugee, the Authority was required to determine whether the Applicant had a well-founded fear of persecution which made him unwilling or unable to avail himself of protection of his native country, Afghanistan (s. 5H(1) Migration Act 1958 (Cth) ("the Migration Act");

   (ii) In determining whether the Applicant had a well-founded fear of persecution, the Authority was required to determine:

   a. whether the Applicant feared being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s. 5J(1)(a) Migration Act);

   b. whether there was a real chance that, if the Applicant returned to Afghanistan, he would be persecuted for one or more of the reasons set out in the preceding paragraph (s. 5J(1)(b) Migration Act); and

   c. whether the real chance of persecution related to all areas of Afghanistan(s. 5J(1)(c) Migration Act);

   (iii) The Authority accepted that:

   a. the Applicant and his father worked in the education and training department of the Swedish Committee of Afghanistan ("SCA"), which establishes schools and training centres in villages and works to educate women. The Applicant's father still works for the SCA as the education project manager (Decision and reasons, [7] and [14]);

   b. the Applicant's father worked as a project manager for the SCA for more than 14 years (Decision and reasons, [7] and [14]);

   c. the Applicant’s volunteering role for the SCA involved doing some typing in the office and accompanying educators when they went to train teachers or deliver their own training sessions to civilians in other areas of Ghazni, that this often took place in schools or mosques and the training topics included human rights, children’s rights, gender issues and women’s rights (Decision and reasons, [16]);

   d. country information considered by the delegate notes the existence of reports of Anti-Government Elements ("AGEs") including the Taliban targeting civilians employed by international humanitarian and development agencies, as well as human rights defenders and others with international or government associations (Decision and reasons, [17]);

   e. various EASO reports considered by the delegate indicate that the Taliban were highly active around Ghazni city when the applicant lived there and that they have maintained a presence there (Decision and reasons, [17]);

   f. SCA workers the Applicant knew and employees of other similar organisations have been targeted for kidnappings and other harm in Afghanistan (Decision and reasons, [25]);

   g. the Taliban maybe aware of the Applicant's father's work (Decision and reasons, [25]);

   (iv) The Authority made findings that:

   a. the Applicant did not receive a threatening phone call from the Taliban(Decision and reasons, [25]);

   b. the motorbike incident (as described in the Decision and reasons, [7]) did not occur (Decision and reasons, [25]);

   c. the Applicant's father and family had not been receiving threatening phone calls and letters. (Decision and reasons, [25]);

   d. the Applicant's brothers did not go to Jalalabad and leave the country because they were being threatened by the Taliban (Decision and reasons, [25]);

   e. the Applicant is not of adverse interest to the Taliban (Decision and reasons, [25]);

   (v) The findings in the preceding paragraph involved illogical and irrational reasoning and were unreasonable:

   a. the findings were based on a concern that the Applicant would have treated the phone threat as a joke and not mentioned it to his father (Decision and reasons, [19]) when. the Applicant's written statement of 1 June 2017 stated that the Applicant did tell his father (albeit, not for a couple of days) and this is not referred to in the Authority's reasons;

   b. the findings were based on a concern that there was a discrepancy between the Applicant's accounts as to whether the motorbike incident occurred two days (as per the Applicant's written statement of 1 June 2017) or two weeks (as per the Applicant's evidence in the SHEY interview) after receiving the threatening phone call (Decision and reasons, [19]) when the Applicant's written statement of 1 June 2017 did not state that the motorbike incident occurred two days after receiving the threatening phone call contrary to the Authority's reasons on this point;

   c. the Authority's findings make no reference to the Applicant's evidence that a threatening phone call to his brother Ajmal, demanding that he and his brother join the Taliban, precipitated their departure from Afghanistan (Protection Visa Decision Record, page 6); see contrary finding by the Authority (Decision and reasons, [30]);

   d. the Authority's findings make no reference to the Applicant's evidence that the Applicant's relative (Saifullah) was killed by the Taliban in their village (Protection Visa Decision Record, page 7);

   e. the Authority's findings make no reference to the Applicant's evidence that he fled to Kabul and remained in hiding there until departing Afghanistan in May 2013 (Protection Visa Decision Record, page 6);

   f. this evidence in the immediately preceding subparagraph is consistent with the Applicant generally lying low and not allowing the Taliban any easy opportunity to find the Applicant or make further requests of him in the relatively short period before he left Afghanistan;

   g. the findings in paragraph 1(a)(iv) were arrived at by the Authority on the basis of a priori assumptions which are in conflict with the evidence of the Applicant;

   h. the findings in paragraph 1(a)(iv) were arrived at without taking into account crucial matters, as particularised in the preceding subparagraphs, required to be considered in any rational and logical reasoning process designed to arrive at reliable findings of fact;

   i. the findings in paragraph 1(a)(iv) affected the Authority's subsequent reasoning and findings including the Authority's ultimate finding that the Applicant did not have a well-founded fear of persecution which made him unwilling or unable to avail himself of protection of his native country, Afghanistan and was, therefore, not a refugee;

   (vi) the Authority made findings:

   a. there is not a real chance the Applicant would be, identified as having been associated with the SCA and will be harmed on this basis, nor for his familial connection to his father (Decision and reasons, [26]);

   b. there is no real chance of the Applicant facing harm due to his past association or his father's ongoing association with the SCA (Decision and reasons, [26]);

   c. the Applicant has not claimed he would return to the SCA or anything similar (Decision and reasons, [27]);

   d. there is no evidence of the Applicant having any ongoing contacts with the SCA and nothing to suggest he would be offered any sort of role in the agency, nor any similar ones in the reasonably foreseeable future (Decision and reasons, [27]);

   (vii) the findings in the preceding paragraph (1(a)(vi)) involved illogical and rational reasoning and were unreasonable:

   a. the findings are a product in part of the findings in 1(a)(iv) and are affected by the same illogicality, irrationality and unreasonableness which produced those findings;

   b. although the Authority referred to sources such as DFAT, EASO and UNHCR having reported on the targeting of people with government or international associations, the Authority failed to identify any relevance for this evidence in its fact finding analysis;

   c. the Authority made no reference to the finding of the delegate that the Applicant's father was imputed by the Taliban in Ghazni in 2012 to have a pro-government / western (or anti-Taliban) political opinion because of his work with the SCA (Protection Visa Document Record, page 8);

   d. the Authority made no reference to the Applicant's evidence that he wanted to have a career like his father (Protection Visa Document Record, page 6);

   e. the Authority made no reference to the findings of the delegate that, in Ghazni, the Applicant may be identifiable as the son of a man who has a profile with the Taliban and that this in turn could impute him with a pro-government/ western political opinion and that, given the strong presence of insurgents in the Ghazni area and the Applicant's personal circumstances, the Applicant faces a real chance of serious harm from local insurgent groups. in Ghazni because of this imputed political opinion (Protection Visa Document Record, page 13);

   f. the Authority made no reference to the delegate's finding that the Applicant's imputed political finding is immutable and that he could not take any reasonable steps to modify his behaviour in a way that would reduce the risks that he would be identified or targeted in Ghazni (Protection and Visa Document Record, page 13);

   g. the findings in paragraph 1(a)(vi) were arrived at without providing any reasoning as to why credible reports of insurgent attacks in and around Ghazni city, with the primary targets including people associated with the international community and civilian groups such as human rights defenders, could be disregarded on the basis the Applicant does not hold any of those profiles or would not seek to when the Authority accepted the matters in paragraphs 1(a)(iii) above;

   h. the findings in paragraph 1(a)(vi) were arrived at without taking into account crucial matters, as particularised in the preceding subparagraphs and including the matters in subparagraphs 1(a)(iii)a. to c. and 1(a)(v)c. to d. above, required to be considered in any rational and logical process designed to arrive at reliable findings of fact;

   i. the findings in paragraph 1(a)(vi) were arrived at by the Authority on the basis of a priori assumptions which are in conflict with the evidence of the Applicant;

   j. the findings in paragraph 1(a)(vi) affected the Authority's subsequent reasoning and findings including the Authority's ultimate finding that the Applicant did not have a well-founded fear of persecution which made him unwilling or unable to avail himself of protection of his native country, Afghanistan and was, therefore, not a refugee;

   (viii) the Authority made findings that:

   a. the Taliban did not attempt to recruit the Applicant nor were there consequential threats for his resistance (Decision and reasons, [29]);

   b. country information does not support that the Taliban's recruitment practices in the Applicant's home area are such that it would indicate a real chance of the applicant being targeted upon return (Decision and reasons, [30]);

   c. the information does not indicate that there is systematic or widespread forced recruitment in Ghazni city or other parts of Ghazni province (Decision and reasons [31]);

   d. the chances of the Applicant being sought by the Taliban are remote (Decision and reasons, [32]);

   e. the Applicant does not face any more than a remote chance of being forcibly recruited or facing harm from resisting recruitment now or in the foreseeable future (Decision and reasons, (32]);

   f. the Applicant would not seek out work with the SCA or similar organisations upon return and he would not be returning as someone wanted by the Taliban or any group stemming from his SCA volunteering or even his father's role, nor for resisting recruitment (Decision and reasons, (40]);

   g. the chance of the Applicant being harmed on account of being a returnee asylum seeker from the West - nor for any related opinion or profile is remote and therefore not real (Decision and reasons, [41]);

   (ix) the findings in the preceding paragraph (1(a)(viii)) involved illogical and irrational reasoning and were unreasonable:

   a. the findings are a product in part of the findings in 1(a)(iv) and 1(a)(vi) and are affected by the same illogicality, irrationality and unreasonableness which produced those findings;

   b. the Authority made no reference to the finding of the delegate that the UNHCR 2016 report observed that the forced recruitment of children is said to be subject to widespread underreporting, but is reported to occur throughout the country and that the report highlights that persons who resist recruitment and their family members are at risk of being killed or punished (Protection Visa Document Record; page 10);

   c. the Authority made no reference to the findings of the delegate that, in September 2017, the Taliban were reported to be the dominant insurgent group in Ghazni province or that, in November 2017, the governor of Ghazni province reported that the number of Taliban militants had grown in the province (Protection Visa Document Record, page 12);

   d. the Authority made no reference to the finding of the delegate that, in August 2018 the media reported that the Taliban controls ten of Ghazni's nineteen districts and contests six more and have waged a recent coordinated assault on Ghazni city (Protection Visa Document Record, page12);

   e. the Authority made no reference to the finding of the delegate that the Taliban in Ghazni put pressure on the Applicant's father to have his three eldest sons join the Taliban as a way for the family to "prove" their allegiance to the Taliban and that this, in part, motivated the Applicant's father to move his three eldest sons out of Ghazni (Protection Visa Document Record, page 10);

   f. the findings in paragraph 1(a)(viii) were arrived at without taking into account crucial matters, as particularised in the preceding subparagraphs, required to be considered in any rational-and logical reasoning process designed to arrive at reliable findings of fact;

   g. the findings in paragraph 1(a)(viii) affected the Authority's subsequent reasoning and findings including the Authority's ultimate finding that the Applicant did not have a well-founded fear of persecution which made him unwilling or unable to avail himself of the protection of his native country, Afghanistan and was, therefore, not a refugee (Decision and the reasons, [47]-[48]);

   (b) The finding that Australia did not owe protection obligations to the Applicant:

   (i) as part of exercising its jurisdiction in reviewing the decision of the delegate that the Applicant was not owed protection obligations by Australia the Authority was also required to determine whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Afghanistan, there was a real risk that the Applicant would suffer significant harm (s. 36(2)(aa) Migration Act);

   (ii) the Authority relied upon its finding, in determining whether the Applicant was a refugee, that the Applicant would not face a real chance of harm on return (Decision and reasons, [52]) to also conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm (Decision and reasons, [54];

   (iii) as a result, the said finding referred to in the preceding paragraph was affected by the same irrational and illogical reasoning as to the finding on which it was based such that the finding, itself, was unreasonable;

   (x) the failures in the reasoning process and the unreasonable conclusions which resulted caused the Authority to fail to exercise its review jurisdiction such that its conclusion, that the Applicant does not meets s. 36(2)(aa) Migration Act (Decision and reasons, [54]), is invalid;

   2. That the decision was affected by jurisdictional error in that the Authority erred in law:

   (i) the Authority made findings that:

   a. the Ghazni City area is the Applicant's home region and the place to which the Applicant would return (Decision and reasons, [10]);

   b. the Applicant did not fate a real risk of significant harm in the Ghazni City area (Decision and reasons, [53]);

   (ii) as a consequence of the findings in the immediately preceding paragraph, the Authority erred in law in that it failed to address whether it is reasonable for the Applicant to remain within the Ghazni city area and not travel to other areas in Afghanistan, such that its conclusion that the Applicant was not a refugee(Decision and reasons, [47]-[48]) and its conclusion that the Applicant does not meet s.36(2)(aa) Migration Act (Decision and reasons, [54]) is invalid;

   3. In the premises of paragraphs 1 and 2 of these grounds, the decision of the Authority to affirm the decision of the delegate was affected by a failure to exercise the review jurisdiction and was invalid.”

1. At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth)(the Act). It was noted that such material included country information, identity information, education and training information, documentation relating to the applicant’s and the applicant’s father’s association with the Swedish Committee of Afghanistan (SCA), as well as “threat letters” allegedly received from the Taliban.

2. At [3] – [6] inclusive of its reasons, the Authority set out why the content of the submission of 2 November 2018 submitted on behalf of the applicant by his representative did not give rise to exceptional circumstances requiring the Authority to consider it pursuant to the provisions of s. 473DD(a) of the Act. The Authority gave detailed reasons as to why the information attached to the submission was either not new information which could not have been put before the delegate, was unconvincing and not credible, or otherwise did not advance the applicant’s claims so as to in either case give rise to exceptional circumstances warranting its consideration.

3. At [7] of its reasons, the Authority relevantly set out the applicant’s claims for protection as follows:

   ·“He is a Sunni Muslim of Tajik ethnicity from (omitted) village just outside the Ghazni City centre.

   ·He and his father worked in the education and training department of the Swedish Committee of Afghanistan (SCA) which establishes schools and training centres in villages and works to educate women about their rights and prevent violence against women. He travelled to different villages with his colleagues to attract students and hold gatherings to inform audiences about women's right issues. He also worked on the inauguration functions of schools. His father still works for the SCA as the education project manager.

   ·One day he received a call purportedly from the Islamic Emirate of Afghanistan (the Taliban). The caller accused him of engaging in conduct contrary to Sharia law and teaching infidelity, and engaging in anti-Jihad activities and cooperating with infidels. He threatened he would be punished for his anti-Islamic activities. The applicant thought the call was a joke and did not take it seriously. He did not discuss it at home.

   ·A couple of days later an incident occurred (‘the motorbike incident’). He was returning home when he noticed two people sitting on a motorbike in Kochi-e-Baghu. They asked him to stop and confirmed his name. They said “You infidels do not give up” and one of them tried to take out a revolver. The applicant pushed him and ran to the police checkpoint at the outskirt of the Firqi Charda military base. He entered the base and stayed for about two hours and preferring not to go home, he was taken to his sister’s place. His told his father about the incident and they agreed he should leave Afghanistan for his own safety.

   ·When he departed Afghanistan, the Taliban demanded that his two younger brothers should join the jihad. His father sent them out of the country.

   ·His father receives protection from the SCA, but the rest of the family cannot avail such protection.

   ·In March 2016, some other SCA employees were kidnapped by the Taliban on Ghazni- Kabul Highway. In June 2016, SCA’s regional officer with whom the applicant used to work, was taken by the Taliban in Qarabagh district. Other agencies in Ghazni province experience the same treatment. In Waghaz district, five engineers and the driver were abducted by the Taliban. These incidents are frequent, but many are not reported for privacy reasons.

   ·He fears that if returned he will be killed by militant groups (including Taliban, Daesh, Al Qaeda) because he refused to join the Taliban, his previous work with the SCA and his father’s ongoing work, his residence in Australia/ a western country, because he is in the Tajik ethnic minority. He also fears being kidnapped for ransom.”

4. At [8] and [9] of its reasons, the Authority set out the relevant criteria for refugee assessment pursuant to the provisions s. 5H(1) of the Act as well as what constituted a well-founded fear of persecution as provided for under s. 5J of the Act.

5. Ground 1 of the application for review asserts that the Authority’s findings were affected by illogical and irrational reasoning processes resulting in a decision that was unreasonable. The applicant relied upon the judgment of Crennan and Bell JJ in Minister for Immigration v SZMDS (2010) 240 CLR 611 from [121]. At [130] – [131] it was there said:

   “[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.”

6. The threshold for illogicality has been held to be very high. [1] The issues of irrationality and illogicality in relation to decision making have also been considered in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] – [61] where it was said:

   [1]        MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256 at [165] per Dodds-

   “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “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 as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

   [61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).

7. Ground 1 deals with four different issues summarised as follows:

   “(a) the IAA’s finding that the Applicant did not receive a threatening telephone call from the Taliban (cf. [28] of the Applicant’s outline);

   (b) the IAA’s views regarding the motorbike incident (cf. [29] of the Applicant’s outline);

   (c) the IAA ignoring evidence regarding threatening telephone calls in March 2015 (cf. [30] of the Applicant’s outline); and

   (d) the IAA’s findings are inconsistent with the Applicant’s evidence that his relative was killed by the Taliban in their village (which was not addressed) (cf. [31] of the Applicant’s outline).”

8. As to the applicant’s claims that he received threatening phone calls, the Authority engaged with such claim and noted it at the third dot point in [7] of its reasons. The Authority recorded that the applicant thought the call was a joke which he did not take seriously, and which the applicant said he did not discuss at home. The applicant made reference to the alleged threats as recorded in a translation of the applicant’s claims made on 22 June 2017. [2] The translation relevantly recorded the following:

   [2]        Court Book (CB) page 149.

   “One day I received a call, the caller introduced himself that he was calling from Islamic Emirate of Afghanistan. He said “you do not refrain from conducts which are contrary to Sharia law, your conduct is against Sharia law as you teach infidelity. Engaging in anti-Jehad, you cooperate with the infidels. It is time now to punish you because you do not refrain from anti-Islamic activities.”

   The caller said your conduct was contrary to Sharia law, you teach infidelity. Instead of participating in Jehad you work with infidels. I took this call not serious and thought perhaps someone is joking with me. I didn’t tell about this at home for couple of days. …”

   (Emphasis added)

9. At [19] and [25] of its reasons, the Authority considered the applicant’s claims about his having received the threatening phone call but dismissed such claims. At [19] it found it implausible that had the applicant received such threat he would not have immediately mentioned it to his father. It must be inferred that the Authority was there finding that it was implausible that the applicant would have taken “a couple of days” to tell his father about a threat of punishment from the Taliban. The Authority was alive to the fact that the applicant had said that he had told his father about the alleged threat, because it referred to the applicant having done so at [12] and [21] of its reasons. The reasoning process and reasons of a decision maker should not be examined microscopically or “with an eye keenly attuned to error”. [3]

   [3]        Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003)

10. The Authority was not in error in making such finding. The Authority was entitled to find that in the circumstances of a serious threat being made by the Taliban for an alleged transgression of Sharia law, the applicant would have earlier told his father of such threat had it in fact been made. It doubted the applicant’s credibility as a result. As was said by Thawley J in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] inclusive:

    “[21] In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

    69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

    70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

    [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

    [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

    [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

    (Emphasis added)

11. Alternatively, even if the Authority was illogical and had fallen into error, such error was immaterial because the Authority had other bases upon which it found that the applicant’s claim was implausible – namely that the applicant had treated the threat as a joke. It was entitled to be sceptical about the applicant’s dismissal of the threat as a joke in circumstances where the consequences of the threat were no doubt serious if it was a real threat. The Authority also found it implausible that the father would react to the making of the alleged threatening phone call (and to the alleged motorbike incident later referred to) by making immediate arrangements for the applicant only to leave Afghanistan, rather than making arrangements for all members of his family who had been threatened, or were under threat, to also leave immediately. Findings on credibility were a matter for the Authority par excellence. [4]

    [4]        Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2001) 74

12. The Authority also had regard to:

    a)the lack of evidence of the Taliban taking any positive steps to apprehend or harm the applicant or his family after the making of alleged threat, other than in respect of the motorbike incident, in circumstances where the applicant continued to do that which the Taliban had allegedly told him not to do ([22] of reasons);

    b)the applicant’s implausible claims that neither he nor his family had any idea as to the whereabouts of the applicant’s brothers. The claims were uncorroborated and implausible, and the Authority was entitled to so find ([23] of reasons);

    c)the applicant’s evidence that the family had to move house to avoid the Taliban whilst at the same time acknowledging that the applicant’s father continued to work for the SCA at the same place. ([24] of reasons);

    d)the applicant’s evidence as to the limited and irregular nature of his having performed volunteer work for the SCA in the context of six years having passed since his having had any contact with the SCA ([26] of reasons); and

    e)the applicant’s lack of credibility for not having at an earlier time raised the claim that his brothers were being pressured to join the Taliban ([28] – [29] of reasons).

13. The Authority was entitled to collectively assess the applicant’s credibility based on all of the evidence before it. It did not err in its findings in that regard.

14. As to the alleged motorbike incident, the Authority erroneously found that the motorbike incident had occurred two days after the threatening phone call. However, such finding was immaterial in the context of the Authority finding that there was a substantial discrepancy between the alleged timing of the motorbike incident as referred to in the statement as opposed to the timing in the SHEV interview, whereby in such interview the applicant had said that the motorbike incident had occurred two weeks after the alleged threatening phone call. On any view, the Authority was entitled to point to such discrepancy, and to doubt that the incident ever occurred. In doing so, it was also entitled to have regard to the discrepancies between the applicant’s written statement of 1 June 2017 and to the contents of the applicant’s SHEV interview concerning the manner in which the applicant had allegedly escaped from the gun wielding antagonist who was allegedly a part of the motorbike incident. [5] It was entitled to look upon the applicant’s claim as to how he had escaped with scepticism.

    [5]        Hossain v Minister for Immigration (2018) 264 CLR 123 at [69] – [72] per Edelman J.

1. As to the assertion that the Authority ignored evidence relating to contact by the Taliban with the applicant’s brothers seeking their forced recruitment, the Authority dealt with those claims. It recorded the claims of the applicant that the Taliban had allegedly demanded that the applicant’s younger brothers should join the Taliban at dot point number 5 of [7] of its reasons. [6] The Authority also dealt with that issue at [11] and [23] of its reasons. The Authority was not required to refer to each and every piece of evidence, and every contention made by an applicant to it, in its written reasons. [7] In any event, the alleged threats to the applicant’s brothers occurred after the applicant had left Afghanistan, and evidence touching on that issue was of little weight in the Authority’s consideration of whether the applicant had allegedly received threats prior to his departure. The Authority did not err in that regard.

   [6]        CB page 328.

   [7]        Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003)

2. As to the assertion that the Authority erred in its consideration of inconsistencies in the evidence concerning the alleged death of a relative at the hands of the Taliban, and the alleged threats by the Taliban against the applicant, there is no merit to such claim. First, the alleged death of a relative at the hands of the Taliban because that relative ‘assisted American soldiers’ [8] was an entirely different factual scenario to that as posed by the applicant, who had stated that he had assisted the SCA, an NGO. There was no evidence tying that alleged killing to any evidence advanced by the applicant. It may have constituted evidence that people in Afghanistan are killed by the Taliban, but it was not probative of the claims made by the applicant about historical events said by him to have happened to him. The Authority did not ignore any crucial evidence in that regard. Another reasonable decision maker could have arrived at the same decision as did the Authority. In SZMDS it was said by Crennan and Bell JJ at [135]:

   “[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.”

   [8]        CB page 253.

3. Otherwise, the Authority closely examined the large number of claims made by the applicant and made findings based on its consideration of those claims. It weighed up implausible evidence against evidence which was incontrovertible, and having done so, made adverse credibility findings against the applicant. It was not required to detail each and every step of its decision making process in its written reasons. [9] Neither was it required to set down how it approached its decision making process, and what steps it took to arrive at its decision. [10]

   [9]        Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [67] – [69]

   [10]       Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [69] per Gummow

4. It was a matter for the Authority as to what country information it relied upon. It is clear that the Authority considered the country information before it, namely at [37] – [39] inclusive of its reasons by way of example. To the extent that the applicant has complained about the findings as made, such challenge is as to findings of fact with which the applicant disagrees, and about which the Court is not entitled to revisit on a merits review basis. What weight the Authority gave to the country information before it was entirely a matter for it. It did not err in its assessment of the evidence before it.

5. As to Ground 2 of the application for review, it is asserted that the Authority erred in relation to its finding that Ghazni City was the applicant’s home region, the place where the applicant’s family still lived, and the place to which the applicant would return. It is asserted that the Authority failed to address whether it was reasonable for the applicant to remain within the Ghazni City area if returned, and to not travel to other areas within Afghanistan, thereby rendering its finding that the applicant was not a refugee invalid.

6. In response to such assertion, the first respondent relied upon the reasons of French CJ, Hayne, Keifel and Keane JJ in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [25] where it was said:

   “[25] The factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.”

7. In the case before the Authority, the Authority did not err in having a reasonable expectation that the applicant would return to Ghazni City where he had once lived, and where most of his family still lived. It was not a case where the applicant was required to travel long distances away from Kabul in dangerous circumstances as was the case in SZSCA. At [9] of its reasons the Authority recognised that any real chance of persecution had to relate to all areas of a receiving country. The applicant did not claim that he was at risk in other specific parts of the country. The Authority specifically found that the applicant would not seek work with SCA if returned to Afghanistan. In that regard, it noted that it was submitted on behalf of the applicant that he wanted to run his own business as a dream job. As was said at [27] of the reasons of the Authority:

   “[27] I have considered what the applicant would do on return to Ghazni and I take into account that he has previously volunteered with the SCA and that his father still works and has connections there. I also take into account that when asked what he would have studied if he had gone on a student visa to India, he said he would probably have studied economics or project management (like his father). However he made no indication that he would (or that he would be afraid to) try to get work in the SCA or something similar upon return and in his five and a half years in Australia he has worked only in the motor industry and has shown no inclination to engage in any type of community engagement or volunteering, development or human rights issues or any type of political activism, nor has he sought out roles or connections with NGOs. It was submitted that he wants to run his own business and that that would be his dream job. I take into account that the applicant’s situation in Australia and the needs of his community in Australia is different to the situation he would face in his community in Afghanistan but even so, he has not claimed he would return to the SCA or anything similar. There is no evidence of his having any ongoing contacts with the organisation and nothing to suggest he would be offered any sort of role in the agency, nor any similar ones in the reasonably foreseeable future. It is at best speculative for me to find that he would seek out such work. I am not satisfied that he would, or that his not doing so would be out of a fear of persecution.”

8. At [47] of its reasons, the Authority found that the applicant would not face persecution in Afghanistan should he be returned there. It must be inferred that such reference was to the whole of Afghanistan and not just to Ghazni, which was a place where it was properly acknowledged by the Authority that the applicant may face some discrimination as a Sunni Tajik. The Authority found at [40] of its reasons that the applicant’s return from the West would not impute him with such a profile as would lead to his being categorised as being un-Islamic. At [41] of its reasons the Authority found that the chance of the applicant being harmed on account of being a returnee asylum seeker from the West was remote. The Authority found that the applicant did not face a real chance of persecution in Afghanistan if returned, and that there was no real chance that the applicant would face harm from generalised violence or criminality if he was returned to his home area of Ghazni. It therefore found that the applicant did not meet the definition of refugee under s. 5H(1) of the Act or that he met s. 36(2)(a) criteria.

9. For the same reasons as found in respect of the refugee criteria not having been met, the Authority found that the applicant did not face a real risk that he would suffer significant harm if he was returned to Afghanistan. It found that the applicant did not relevantly meet the s. 36(2)(aa) criteria.

10. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as did the Authority. 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.

    …

    [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.”

11. Neither could the decision 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.”

12. It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25] - [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

13. The applicant has not demonstrated that the Authority fell into jurisdictional error.

14. The application for review is dismissed.

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

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 25 October 2019

         Streeton J. 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ.         ALJR 405 at [67] per McHugh J. 236 FCR 593 at [46].          per McHugh, Gummow and Hayne JJ.         J.