AUP16 v Minister for Immigration
[2018] FCCA 603
•9 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 603 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for protection visa – claim that decision of Administrative Appeals Tribunal was affected by jurisdictional error due to failing to take into proper account corroborative documentary evidence – held that Administrative Appeals Tribunal did take such evidence into account although it did not expressly refer to it in its Decision Record because it was not material to its decision – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.467, 477, 91W |
| Cases cited: Appellant S106/2002 v Minister for Immigration (2003) 198 ALR 59 SZTES v Minister for Immigration [2015] FCAFC 158 SZTMD v Minister for Immigration (2015) 150 ALD 34 |
| Applicant: | AUP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 831 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 4 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Dr S. Tully of Counsel |
| Solicitors for the Applicant: | Ryburn Solicitors |
| Counsel for the First Respondent: | Mr L. Leerdam |
| Solicitors for the First Respondent: | DLA Piper Australia |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Order pursuant to s.477(2) of the Migration Act 1958 (Cth) that the time for the Applicant to make his application to this Court be extended up to and including 8 April 2016.
The Amended Application filed in this Court on 9 December 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
SYG 831 of 2016
| AUP16 |
Applicant
And
| Minister for Immigration & Border Protection |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Afghanistan aged 37 years, having been born on 31 December 1980.
By Amended Application filed in this Court on 9 December 2016 he seeks:
a)an extension of time of 128 days (being the effluxion of time between 35 days after the decision of the Tribunal, being 2 December 2015, and the date on which he lodged his original Application for judicial review in this Court, being 8 April 2016) under s.477(2) of the Migration Act 1958 (Cth) (the Act) outside the time limit prescribed by s.477(1) for him to make his substantive application to this Court under s.476(1); and
b)to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 October 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 31 December 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).
Claims for Protection
In his Statutory Declaration declared on 29 April 2012 (Statutory Declaration) and attached to his Protection visa application lodged on 5 May 2012 the Applicant made the following claims to protection:
a)he was born in Kondeh, Jaghori in the Ghazni Province of Afghanistan and is of Hazara ethnicity and a Shia Muslim;
b)his father was killed in 2008 by either a road mine or a roadside bomb set by the Taliban in the Kondeh area, which is a Taliban-run region, while transporting his goods;
c)he was the only son of his family and after his father died it became impossible for him to use the family’s land (family land) which was already the subject of a dispute between his father and the Applicant’s uncle at the time of the father’s death;
d)his uncle is an extremely brutal man who took over the family land and threatened that he would kill the Applicant if he tried to claim or even use it. The uncle harmed him several times in the past and often beat him, sometimes with the help of the uncle’s sons, and on one occasion broke the Applicant’s wrist and teeth;
e)he became extremely scared to use the road where his father had been killed, which is the only road available to go to Utqul to buy painting supplies, because the area was controlled by the Taliban and the Taliban persecute Hazaras and Shias;
f)he decided to leave Afghanistan so that he was not killed by the Taliban or by his uncle and he called a friend in Dubai who sponsored him to go the United Arab Emirates and work for him as a car painter in his garage there;
g)he decided to leave Dubai in about December 2009 and made his way to Indonesia, where he was arrested by the authorities and held in immigration detention, but registered with the United Nations High Commissioner for Refugees (UNHCR) and was granted the status of a refugee in 2011 by the UNHCR;
h)he feared that if he returned to Afghanistan he would be captured, tortured, killed and would face persecution;
i)because his family cannot now use the family land he would not be able to satisfy his basic needs. He had worked on the family land since he was a child to support his family and without the family land he is unable to provide for himself and his family;
j)he could not work as a painter again because he would need to travel on the Taliban-run roads in Afghanistan to obtain supplies;
k)he feared significant harm from his uncle who would try to kill him in order to keep all of the family land and who would be supported and helped by the uncle’s five sons; and
l)he feared that he would be harmed and mistreated in Afghanistan for reasons of his ethnicity as a Hazara and his religion as a Shia Muslim and face significant harm from his uncle who would try to kill him and who is determined to keep the family land in his possession because he wants it for himself and his five sons to make sure that the family land would stay forever in the possession of the uncle and the uncle’s children and who would suspect that if he returned to Afghanistan it would be to reclaim the family land.
Relevant Criteria and Law for a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of the Delegate
By her Decision Record of 31 December 2013 the Delegate refused to grant the Applicant a Protection visa. The Delegate found the Applicant’s testimony to be “lacking in detail, vague and unpersuasive”. The Delegate found that the Applicant had been unable to provide important details regarding his ownership of the family land, the composition of the family land itself and information relevant to his uncle who was claimed to be the perpetrator of the harm that the Applicant claimed to fear.
The Delegate found the inconsistencies and lack of detail in the Applicant’s evidence were not “minor or trivial; rather they are at the core basis on which this claim relies on”. The Delegate did not consider that the Applicant as a Hazara Shia would face any particular or additional chance of harm associated with living in Jaghori or access to Jaghori, for a Refugees Convention reason or under the complementary protection criterion, which would distinguish him from the general situation experienced by Hazara Shias as considered in country information to which the Delegate referred.
Accordingly, the Delegate was not satisfied that the Applicant had a real chance of being persecuted for a Refugees Convention reason in Bangladesh or that Australia had protection obligations under the complementary protection criterion and she refused to grant a Protection visa to the Applicant.
Tribunal Hearing and Decision Record
The Applicant applied to the Tribunal for merits review of the Delegate’s decision on 31 January 2014. The Applicant appeared at a hearing before the Tribunal on 20 August 2015 to give evidence and present arguments with the assistance of an interpreter in the Hazaragi and English languages, and was represented by his registered migration agent by telephone.
For present purposes it is sufficient to note that the Tribunal overall found that the Applicant’s evidence “about the dispute between his uncle and his father over [the family land] was vague, unconvincing, inconsistent and not credible ”.
The core conclusions of the Tribunal on the credibility of the Applicant were expressed as follows:
Conclusions on credibility
[30]Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s claims that his father and his uncle were in a dispute over land inherited from their own father. The Tribunal therefore disbelieves all of the events the applicant claims ensued from that dispute (such as the applicant’s uncle beating both the applicant and his father; threatening the applicant’s mother and his wife and beating them and preventing the applicant and his father from working on the farmland). The Tribunal finds that the entire account about this dispute and the applicant leaving Afghanistan because of it is false.
[31]The Tribunal also disbelieves residual claims that his father was killed while travelling in or out of the district in 2008; that his wife and mother have left Afghanistan and gone to live in Pakistan and a claim the applicant made at his interview with an officer of the department in March 2012 that when he was travelling (for his work in the painting business) he was confronted by the Taliban and had to escape from them. The Tribunal finds that it has no credible evidence about the applicant’s background in Afghanistan, including his employment and what he did for a living. Similarly, in his evidence to the department and the Tribunal the applicant made broad claims to the effect that the Taliban and Islamic state controlled his native area. Because the applicant is not a witness of truth, the Tribunal rejects those claims and has set out country information relating to the risk of the applicant suffering serious harm in his native area in the district of Jaghori, country information the Tribunal prefers to the applicant’s claims.
[35] There is no credible evidence that the applicant or any member of his family suffered harm in Afghanistan and there is no credible evidence that anyone in Afghanistan seeks to harm the applicant. There is no credible evidence as to why the applicant left Afghanistan and why he does not want to return there.
From [36] – [48] of its Decision Record the Tribunal considered a body of country information. At [43] – [46] it considered country information concerning the safety of travel by roads in Afghanistan. It noted that a DFAT report of March 2014 had stated that the majority of deaths on roads in Afghanistan are caused by traffic accidents although the Taliban and criminal elements do target the national highway and secondary roads and target all ethnic groups, sometimes kidnapping for ransom. It noted that the DFAT report assessed that individuals working for, supporting or associated with the Government and the international community are at high risk of violence by insurgents on roads in Afghanistan. At [44] the Tribunal noted that in terms of travelling from Kabul to Jaghori, DFAT in March 2014 stated that there were well-established routes between Kabul and Ghazni city and a number of routes from there into the district of Jaghori and that while some routes were less secure than others, the routes between Jaghori and Ghazni were travelled by thousands of vehicles daily and that local residents with ties to the province and knowledge of the area, including Hazaras, could travel between the two locations without incident. At [46] the Tribunal noted that a later DFAT report of September 2015 assessed that no particular ethnic group was being systematically targeted on the roads of Afghanistan on the basis of ethnicity.
From [49] – [69] of its Decision Record the Tribunal set out the inferences which it drew from the body of country information which it had considered.
At [49] of its Decision Record the Tribunal stated that it considered the risk of the Applicant suffering serious harm in the district of Jaghori, where he would live if he returned to Afghanistan, to be remote.
At [51] and [52] it recorded that it inferred that the risk of the Applicant suffering serious harm travelling by road from Kabul to Jaghori to be remote.
At [57] the Tribunal recorded its discussions with the Applicant concerning country information at the hearing and the claim by the Applicant that the Taliban and Daesh have their main base near his village and would stop him on the roads and kill him if he went back to his area. However the Tribunal stated that it disbelieved those claims of the Applicant, saying:
For the reasons given above, because the Applicant is not a witness of truth, it has no credible evidence about his circumstances in his native village. It has no credible evidence that he does not have family, employment or property there to which he can return.
At [62] the Tribunal dealt with submissions made by the Applicant’s migration agent concerning country information and about the risk of travelling on roads in Afghanistan. At [64] of its Decision record the Tribunal dealt with the issue of travel on roads around Jaghori as follows:
[64]The representative asserted that people in Jaghori would need to travel out of that area to receive health care and because of poor living standards. The Tribunal has no credible evidence about the applicant’s life in Jaghori and why he actually left Afghanistan. As the Tribunal has said above, it can only speculate as to whether, when and to what extent the applicant would travel out of Jaghori and, accordingly, the risk of him suffering serious harm on that basis is remote. It was submitted that the applicant belongs to particular social groups made up of Hazara landowners, Hazara landowners involved in land disputes and Hazara land disputes. There is no need for the Tribunal to determine whether such social groups exist because the Tribunal does not believe the applicant’s claims about being involved in a land dispute and it has no credible evidence about his life in his native area. The representative’s submissions about him being at risk as a landowner were all predicated on the basis that he had been in dispute in Afghanistan but the Tribunal does not believe that evidence.
At [69] the Tribunal recorded its rejection that the Applicant had a well-founded fear of persecution based on any Refugees Convention ground.
Finally, the Tribunal at [70] – [73] considered the complementary protection criterion. It was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the complementary protection criterion and stated at [70] of its Decision Record as follows:
[70]With respect to the complementary protection criterion, the Tribunal repeats its finding that the applicant is not a witness of truth. His claims about being in a land dispute with his uncle are false. There is no credible evidence as to why the applicant left Afghanistan and no credible evidence as to his true circumstances in his native area. There is no credible evidence that anybody in Afghanistan seeks to harm the applicant or his family. There is no credible evidence as to why the applicant does not wish to return to Afghanistan. For the same reasons the Tribunal finds that there is not a real chance the applicant will suffer serious harm in Afghanistan, it finds that there is not a real risk the applicant will suffer significant harm in that country.
At [72] the Tribunal noted that the Applicant, when he returned to Afghanistan, would travel by road from Kabul to his native village and said:
[72]The applicant will travel by road from Kabul to return to his native village. The Tribunal has set out above the categories of people most at risk in travelling on roads and the applicant does not come within any of them. The risk of him suffering significant harm on this ground is also remote…
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.
Application for Extension of Time to Apply to this Court
The Grounds for the extension of time application are as follows:
1. Applicant lost legal assistance and was not advised of opportunity for judicial review.
2. Applicant not literate in English, has little knowledge of Australian legal process and pursued Ministerial intervention during the relatively short period of delay.
3. No evidence of any prejudice to the first respondent who consented to an amended timetable by orders made on 7 December 2016.
4. Re-drafted substantive application has merit.
In considering whether it is in the interests of the administration of justice to grant an extension of time the Courts have developed non-exhaustive guidelines as to the factors which are to be taken into account. Those factors include:
a)Whether there has been a reasonable and adequate explanation for the applicant’s delay and the extent of the delay;
b)Whether there is any prejudice to the Minister; and
c)Whether the applicant’s substantive case for judicial review is reasonably arguable or has reasonable prospects of success (SZTES v Minister for Immigration [2015] FCAFC 158 per Robertson J at [67] agreed with by Logan J at [91] and Kerr J at [92]).
In relation to the assessment of whether or not the Applicant’s substantive case is reasonably arguable or has reasonable prospects of success I ought not travel beyond an examination of the substantive grounds, and only at “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 598 – 599 [62] per Mortimer J.
The delay of 128 days is not great in terms of this area of litigation. There is no real or actual prejudice to the Minister and the loss of the Applicant’s right of appeal to the Federal Court of Australia (if extension is not granted) has a militating tendency in favour of a grant of an extension.
On the other hand, the Applicant has not in my view given a reasonable and adequate explanation for his delay in approaching this Court. In this respect I allowed the Applicant to give oral evidence at the hearing because, on the objection of Mr Leerdam who appeared for the Minister, I had struck out [14] of the Applicant’s solicitor’s affidavit affirmed on 7 April 2016 which had stated:
[14]I am instructed that the Applicant was given incorrect legal advice and consequently was not aware of his right to bring this matter before the Federal Circuit Court at the time of the AAT decision in late 2015.
The Applicant’s evidence and demeanour under cross examination were unsatisfactory but ultimately, albeit grudgingly, the tenor of his evidence was to the effect, and I so find, that his then lawyer, Ms Louise Gowers, advised him of the available option of seeking judicial review of the adverse decision of the Tribunal shortly after the Decision Record was sent to Ms Gowers. Despite that advice he took the course of seeking Ministerial intervention by having his migration agent request Ministerial intervention under s.417 and s.48B of the Act by letter dated 10 December 2015 which was then refused, after personal consideration by the Minister, by letter dated 3 March 2016.
Nevertheless, whilst I do not consider that the Applicant has good prospects of success I consider that his substantive Grounds warrant scrutiny by the Court and that he be given the opportunity to argue his substantive Grounds. Accordingly leave should be granted extending the time for filing of the Application up to 9 December 2016 because it is necessary in the interests of the administration of justice that an order to that effect be made.
Grounds of Attack on Tribunal Decision in this Court
The Grounds of the Amended Application are:
The decision of the Migration and Refugee Division of the Administrative Appeals Tribunal (the tribunal) is affected by jurisdictional error because:
1. The tribunal failed to consider an express claim, or an integer of the applicant's claims, and related evidence relevant to its decision.
Particulars
a. At [31] and [57] of its decision, the tribunal appears to find that it had no credible evidence about the applicant's background in Afghanistan, “including his employment and what he did for a living”.
b. The applicant consistently claimed to be a car spray painter.
c. The tribunal failed to consider the applicant's Afghan taskera submitted to it on 31 January 2014 and 2 June 2014.
d. The applicant's claim, or integer of his claim, and evidence was relevant to the tribunal's credibility assessment and its consideration of the risk of harm should the applicant return to Kondeh, including his need to travel for painting supplies.
2. The tribunal failed to consider a relevant consideration, being that the applicant had been mandated as a refugee by the United Nations High Commissioner for Refugees on 2 March 2011.
Particulars
a. At [33] of its decision, the tribunal indicated that this fact did not overcome its credibility concerns with respect to the reasons the applicant had advanced in Australia as to why he was at risk in Afghanistan.
b. The tribunal failed to take this consideration into account when assessing the applicant's remaining grounds which did not depend upon any credibility assessment.
3. The tribunal failed to have regard to a relevant consideration when considering whether there was discriminatory conduct by the Taliban and other insurgent groups against the applicant in Kondeh.
Particulars
a. At [50] of its decision, the tribunal observed that the applicant would be returning to a Hazara majority area and “[a]ccordingly, it is highly unlikely that he will suffer [societal] discrimination there”.
b. The tribunal failed to consider the motivation on the part of any persecutor.
Consideration
Ground 1
At the hearing Dr Tully, who appeared for the Applicant, indicated that it was not argued that the decision of the Tribunal was legally unreasonable or as not being open to it. Rather, he refined the nature of the jurisdictional error asserted by this Ground as being the Tribunal’s failure to deal with relevant material, namely the Taskera, because it was potentially corroborative of the Applicant’s claims in terms of his occupation and background while he was in Afghanistan. Dr Tully submitted that the Taskera was a corroborative document that was relevant to an assessment of the Applicant’s claim as to whether he would be at risk of harm within Jaghori and whether or not as a labourer he would be required for the purposes of work to travel outside Jaghori, which might therefore put him at risk of harm while travelling on Afghanistan roads. However, Dr Tully submitted that the Taskera had not been considered expressly by the Tribunal.
At this point it is appropriate to identify the nature of a Taskera. In connection to this Dr Tully referred to [5.26] – [5.27] of the DFAT Country Information Report for Afghanistan dated 18 September 2015 which was in evidence and stated as follows:
Identity Cards
5.26The Taskera certificate is the most common form of identification in Afghanistan. Taskeras are printed on plain paper and include the bearer’s name, father’s name, grandfather’s name, place and date of birth, place of residency, type of occupation and military service status. Information included on Taskera certificates is sometimes incomplete. Other than stamped seals, Taskeras do not include any security features.
5.27Taskera identification certificates are required for employment, admission to schools and universities, applications for passports, and permission to run a business and to rent, buy or sell property. According to the Afghan Ministry of the Interior, there has been no regular, national issue of Taskeras since 1976 because of the conflict. While different governments have continued to issue Taskeras that remain valid, people only apply for the documents when needed for other administrative purposes such as attending school or applying for a passport. The Ministry also notes that the paper-based, hand-written cards have been open to forgery and misrepresentation.
The translation of the Taskera is as follows:
In relation to the claimed employment of the Applicant and the Taskera I find as follows (such information being known to the Tribunal or part of its Decision Record), namely that:
a)in the written record of his Irregular Maritime Arrival Entry Interview of 21 March 2002 signed by the Applicant he referred to an Afghan document identifier of himself, being a Taskera;
b)in his Statutory Declaration the Applicant claimed that he had worked on the family land since he was a child and also as a car painter in Afghanistan and Dubai;
c)by Notice under s.91W of the Act dated 23 August 2013 (s.91W notice) the Delegate required the Applicant to produce the original of his Afghan Taskera, as well as the originals of other documents;
d)in a written submission from the Applicant’s migration agent dated 4 October 2013 in connection with the Applicant’s claimed activities in Dubai and Afghanistan, the Applicant claimed that he had worked as a car painter in Dubai and before his father’s death had used the family land once or twice a week on average except during winter;
e)in a second written submission dated 4 October 2013 from the Applicant’s migration agent a copy of the untranslated Taskera was forwarded to the Delegate in response to the s.91W notice;
f)at the Applicant’s interview with the Delegate on 5 May 2012 he claimed to have worked in Afghanistan, predominantly in farming and spray painting cars;
g)the Delegate in her Decision Record recorded that the Applicant had provided a scanned copy of a document which he claimed to be his original Taskera (presumably at the interview on 5 May 2012), but that no original hard copy had been received by the Department of the Minister nor had any translation of the Taskera been provided. Therefore the Delegate gave the copy of the Taskera little weight in attesting to the Applicant’s claimed identity;
h)a further copy of the untranslated Taskera was given to the Tribunal under cover of the Applicant’s migration agent’s letter of 31 January 2014 which also lodged the application for review with the Tribunal;
i)an English translation of the Taskera was forwarded to the Tribunal under cover of the migration agent’s submission of 2 June 2014, which also advised that the Applicant had worked as a farm hand on the family land from about the age of 15 years and that at the same time he started working as a car spray painter with his father;
j)[5.26] – [5.27] of the DFAT country information report dated 18 September 2015 describes the nature of a Taskera;
k)footnote 3 to [7] of the Decision Record of the Tribunal referred to the letter of 4 October 2017 which enclosed a copy of the untranslated Taskera (see [32(e)] above) as being part of the Applicant’s evidence to the Tribunal;
l)footnote 66 to [58] of the Decision Record of the Tribunal referred to the migration agent’s submission of 2 June 2014 which enclosed a copy of the translation of the Taskera (see [32(i)] above) as being submissions to which the Tribunal had regard. At the hearing Dr Tully did not submit to me that the Tribunal did not read the migration agent’s submissions of 2 June 2014, which in this connection at [3] had stated:
[3]Annexed hereto and marked “A” is a copy and English translation of the Applicant’s taskera. The Applicant has confirmed that his family name is AUP16 although it is not stated on his Taskera. The family name AUP16 is adopted from the Applicant’s grandfather AUP14.
However, the Tribunal in its Decision Record did not make specific reference to the Taskera or its contents, hence leading to this Ground.
Nevertheless, in my view Ground 1 fails to establish jurisdictional error for the following reasons.
First, I would not draw the inference from the evidence that the Tribunal did not consider the Taskera in the sense of failing to apply an actual mental process to it. The Delegate had required production of the original Taskera. An untranslated copy was forwarded under cover of the migration agent’s submission of 4 October 2013 (see [32(e)] above) and that submission was referred to by the Tribunal at footnote 3 to [7] of its Decision Record. The Taskera was then referred to in the Decision Record of the Delegate, of which the Tribunal was undertaking a review (see [32(g)] above). The migration agent gave to the Tribunal a further untranslated copy of the Taskera under cover of its letter of 31 January 2014 which also lodged the application for review to the Tribunal (see [32(h)] above). The translated copy of the Taskera was forwarded to the Tribunal under cover of the migration agent’s submission of 2 June 2014 (see [32(i)] above) which Dr Tully concedes would have been read by the Tribunal and which submissions were expressly referred to at footnote 66 of the Decision Record (see [32(l)] above). In these circumstances it would, in my view, be remarkable if the Tribunal had overlooked and not considered the translated copy of the Taskera and I find on the evidence that it did consider it.
Second, there are number of legitimate and rational reasons why the Tribunal would not consider it necessary to expressly refer to the Taskera in its Decision Record. The Tribunal had rejected the substance of the Applicant’s claims root and branch. The Applicant’s credibility was “poisoned beyond redemption”: see Appellant S106/2002 v Minister for Immigration (2003) 198 ALR 59 at 70 [49] per McHugh and Gummow JJ. As Gleeson CJ said in the same case at 63 [12]:
[12]… It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
In my view the Tribunal, having made comprehensive adverse findings about the credibility of the Applicant, simply did not consider the Taskera to be material or relevant to its decision and therefore did not expressly refer to it. As Perram J relevantly said with reference to country information in SZTMD v Minister for Immigration (2015) 150 ALD 34 at 37 [15] – [16]:
[15]It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (‘Yusuf’). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
[16]If that inference were to be drawn it would defeat the applicant’s argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No. 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.
In like manner, the Full Court of the Federal Court of Australia in Minister for Immigration v Eden (2016) 240 FCR 158 per Allsop CJ, Griffiths and Wigney JJ said at [74] with reference to the Minister’s reasons for cancelling the visa in that case:
[74]…Whilst the Reasons do not expressly refer to this aspect of Mr Eden’s behaviour, it does not follow that the Minister necessarily ignored it. It is equally consistent with the Minister not regarding it as sufficiently material to include in the brief recitation of Mr Eden’s offending conduct…
To similar effect Moshinsky J stated in Shah v Minister of Immigration and Border Protection [2017] FCA 183 at [16] with respect to s.368 of the Act (being the analogue provision of s.430 applicable here):
[16]…Section 368 of the Migration Act 1958 (Cth) (Migration Act) did not require the Tribunal to refer to each item of evidence that the first appellant gave (written or oral). The Tribunal was only required to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision: see, in relation to s 430 of the Migration Act, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [68] per McHugh, Gummow and Hayne JJ. Accordingly, it does not follow from any failure by the Tribunal to refer to any particular strand of the first appellant’s evidence about Workcover that the Tribunal did not in fact consider that evidence.
Third, it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an Applicant in its written reasons: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at 604 [46] per French, Sackville and Hely JJ. An error of fact based on a misunderstanding of evidence, or even overlooking an item of evidence, in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered the applicant’s claims: Minister of Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at 309 [28] per North and Lander JJ.
Intertwined with the above is the fact that the Taskera was not material which could be regarded as so “fundamental”, “important” or “overwhelming” such that a failure to have regard to it by the Tribunal would constitute jurisdictional error: see Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 (MZYZA) at [60] per Tracey J. The Taskera was not of pivotal or fundamental importance to the Applicant’s claims. The copy produced was not the original as requested by the Delegate. It emanated entirely from the Applicant. In [5.27] of the DFAT Country Information Report of 18 September 2015 it was noted that Taskeras have been open to forgery and misrepresentation: see [30] above. Further, the Taskera recorded the occupation of the Applicant as a labourer and that occupation had no relevance to the Applicant’s claim that if he returned to Afghanistan he would need to travel on Taliban-controlled roads to obtain painting supplies.
Accordingly, in my view there has been no constructive failure by the Tribunal to exercise jurisdiction due to its failure to refer to the Taskera in its Decision Record. I am of the view that the Tribunal did consider the Taskera but did not consider it to be material. If I was wrong in that, and the Tribunal did not consider the Taskera, then jurisdictional error has still not thereby been established. Otherwise it is sufficient for me to refer to the decision of Tracey J in MZYZA where relevant authorities concerning a Tribunal’s failure to mention evidential material are considered by his Honour.
Accordingly, Ground 1 fails to establish jurisdictional error.
Ground 2
The context for this Ground is that at [33] of its Decision Record the Tribunal noted that the Applicant claimed that he had been granted refugee status by the UNHCR. The Tribunal further noted that it did not have independent evidence before it to confirm that the Applicant had been granted the refugee status which he claimed, but pointed out that on the assumption that he had been granted refugee status by the UNHCR, the Tribunal was nevertheless not bound by that determination. The correctness of the Tribunal’s view in that regard seems unchallengeable. Dr Tully accepted that the Tribunal was not bound by any refugee status determination of the UNHCR.
However Dr Tully, perhaps recognising that Ground 2 as stated could not succeed, put this Ground on a somewhat different basis. His submission was to the effect that because the Applicant had been mandated by the UNHCR he therefore became associated with an international organisation which, by reference to the country information accepted by the Tribunal, necessarily put him at risk at Jaghori and also while travelling on Afghanistan roads.
However, that claim was not in my view made either to the Delegate or to the Tribunal. It was never put to the Tribunal that by returning to Afghanistan the Applicant would be stigmatised or persecuted or harmed because he had been mandated as a refugee in Indonesia by the UNHCR. Dr Tully could not identify to my satisfaction any evidence that such an argument or claim was submitted to the Tribunal. Finally, no evidence was submitted to the Tribunal in this connection that if the Applicant did return to Afghanistan anyone there would know that he had been mandated as a refugee by the UNHCR in Indonesia, if such was the case.
In my view Ground 2 fails to establish jurisdictional error.
Ground 3
I interpose that the reference to Kondeh in Ground 3 is a reference to the Applicant’s village of birth in Jaghori (see [3(a)] above).
In my view the reasoning of the Tribunal at [50] of its Decision Record is not affected by jurisdictional error. That paragraph must be seen in the context of the Tribunal’s consideration of the position of Hazaras who are almost always Shias. At [39] – [42] the Tribunal had pointed out that ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan and that Afghans tend to live in areas where their ethnic group constitutes the local majority, be it in major cities or outside major urban areas. The Tribunal went on to point out that Hazaras have made strong political and educational gains since the fall of the Taliban in 2001 and they hold positions in the Afghan Government. The Tribunal at [42] pointed out that DFAT, as at September 2015, stated that no particular ethnic group was systematically targeted solely on the basis of ethnicity.
At [50] of its Decision Record the Tribunal accepted that “societal discrimination exists in Afghanistan (based on ethnicity and possibly religion)”. The Tribunal then expressed the view that because the Applicant was returning to a Hazara majority area it was unlikely that he would suffer discrimination there. That reasoning is not legally unreasonable. Paragraph [50] is not to be taken in isolation, but rather in terms of the Tribunal’s overall consideration of country information concerning the position of Hazaras in Afghanistan stated at [39] – [46] of its Decision Record.
Dr Tully further relied on the decision of the Full Court of the Federal Court of Australia in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (Ram) per Burchett, O'Loughlin, and R D Nicholson JJ. That case provides authority for the principle that persecution involves not only the infliction of harm, but also an element of an attitude on the part of those who persecute, which leads to the infliction of harm or the element of motivation for the infliction of the harm. It also posits that a social group may be identified, in a particular case, by the perceptions of the persecutors, rather than by the reality.
In my view nothing in Ram leads to a finding that [50] of the Decision Record of the Tribunal exhibits jurisdictional error. At [50] the Tribunal accepts, as it also does at [41], that societal discrimination exists in Afghanistan due to the importance of ethnic, tribal and familial networks and the dominance of the Sunni majority. The Tribunal was thereby accepting that there was an element of attitude or motivation which could lead to the infliction of harm on Hazaras, including the Applicant. However, the Tribunal was of the view that if the Applicant returned to Kondeh in a Hazara majority area it was highly unlikely that he would in fact suffer discrimination there.
In my view Ground 3 also fails to establish jurisdictional error.
Disposition
In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 9 March 2018
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