BJO18 v Minister for Home Affairs - [2019] FCCA 1616

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJO18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 1616

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Temporary Protection (subclass 785) visa – extension of time – granted – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133;

361 ALR 227

BTF15 v Minister for Immigration and Border Protection [2016] FCA 647; 69

AAR 376

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146;

253 FCR 496; 70 AAR 413; 253 FLR 496

CQY16 v Minister for Immigration & Anor [2017] FCCA 236; 326 FLR 263

Minister for Immigration and Border Protection vSZVFW [2017] FCAFC 33;

248 FCR 1

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;

185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1

S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 78 ALJR 180; 203 ALR 112; 78 ALD 8

Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256; 66

ALJR 605; 108 ALR 55

Applicant:

BJO18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 155 of 2018

Judgment of:

Judge Mercuri

Hearing date:

18 February 2019

Date of Last Submission:

18 February 2019

Delivered at:

Melbourne

Delivered on:

28 June 2019

REPRESENTATION

Senior counsel for the applicant:	Mr Burnside QC
Junior counsel for the applicant:	Mr Cowen

Solicitors for the applicant:

De Novo Legal

Counsel for the respondents:

Mr Aleksov

Solicitors for the respondents:

Sparke Helmore

ORDERS

The applicant’s application for an extension of time is granted.
The applicant’s application filed 21 March 2018 and amended 21 January 2019 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 155 OF 2018

BJO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

The applicant seeks judicial review of a decision of the second respondent, the Immigration Assessment Authority (“the IAA”) made on 16 January 2018 affirming the decision made by a delegate of the first respondent, the Minister for Home Affairs (“the Minister”) not to grant the applicant a protection visa (“the visa”).
The applicant is a citizen of Pakistan. He is a Pashtun of the Turi tribe and a Shia Muslim. He comes from Agra, Parachinar, Kurram Agency, Federally Administered Tribal Areas in Pakistan.
He arrived at Christmas Island by boat on 6 July 2013 as an unauthorised maritime arrival.[1] On 6 November 2015, the Minister exercised his power under section 46A(2) of the Migration Act 1958 (Cth) (“the Act”), permitting the applicant to apply for the visa.[2]
[1] Court book page 74.
[2] Court book pages 29 to 34.
The applicant applied for the visa in early April 2016 and, in support of that application, provided a statutory declaration setting out his claims for protection.[3] In that statutory declaration, he made the following statement:
My main reasons for seeking the protection of Australia is fear of harm at the hands of the Taliban on account of my Shia religion.[4]
[3] Court book pages 52 to 100.
[4] Court book page 96 at paragraph [2].
In addition, under the heading ‘Harm Experienced in COUNTRY’[5], the applicant made reference to:
a)having received two threatening letters whilst at the school at which he was teaching;
b)the fact that he participated in a protest against violence;
c)two of his cousins were killed by Taliban suicide bombers; and
d)the Taliban hate Shia people and that is why ‘they target us’.[6]
[5] Court book page 97.
[6] Court book page 97.
In summarising his claims, the applicant stated:
In summary, I fear harm including murder at the hands of the Taliban and the other anti-Shia militias on the basis of being a Shia person and also because of being a teacher, which the Taliban is opposed to. I further fear harm in any part of Pakistan by virtue of my Shia religion. I have personally been threatened by my feared persecutors. I cannot rely on the protection of the Pakistan state and cannot safely relocate anywhere else in Pakistan.[7]
[7] Court book pages 98 to 99.
The applicant also claimed to fear persecution as a result of a data breach by the Australian government.[8]
[8] Court book page 98.
The applicant was invited to and attended an interview with the delegate on 31 May 2016.[9] The delegate made the decision to refuse to grant the visa on 21 July 2016. Pursuant to section 473CA of the Act, the Minister referred the delegate’s decision to the IAA on 22 July 2016.
[9] Court book page 118 and page 197 at paragraph [20].
The applicant filed the following submissions with the IAA:
a)on 29 July 2016 (“first post hearing submissions”);[10]
b)on or about 8 August 2016 (“second post hearing submissions”);[11]
c)on or about 7 September 2016 (“third post hearing submissions”);[12] and
d)on or about 20 December 2017 (“fourth post hearing submissions”) (collectively “the four post hearing submissions”).
[10] Court book page 194 at paragraph [6].
[11] Court book pages 176 to 179.
[12] Court book pages 180 to 183.
On 24 August 2016, the IAA affirmed the delegate’s decision to refuse the applicant the visa. The applicant sought a review of that decision in this court and on 10 November 2017, this court (differently constituted) ordered that the 24 August 2016 decision be quashed and remitted the matter to the IAA for reconsideration according to law.[13]
[13] CQY16 v Minister for Immigration & Anor [2017] FCCA 236; 326 FLR 263.
On 16 January 2018, the IAA affirmed the delegate’s decision (“January 2018 decision”). This application relates to the January 2018 decision.

The applicant’s claims

The applicant’s claims are summarised in the IAA’s decision record as follows:
a)The applicant is a Pashtun of the Turi tribe and a Shia Muslim from Agra, Parachinar, Kurram Agency, Federally Administered Tribal Areas (“FATA”) in Pakistan.
b)He worked as a teacher in his home town at Oswa Public School – Tuition Centre from 2008 to 2013.
c)There are a lot of explosions and violence in his home town.
d)About three months before he left Pakistan, he participated in a protest demonstration against violence in the main city closest to his home town.
e)The applicant was personally threatened by his feared persecutors.
f)In June 2013, a student found a letter containing threats at the gate of the school. The letter warned that the school should be closed and that the school stop teaching the students.
g)One or two weeks later, a second threat letter was put under the door of the school with a warning that the school be closed and that there would be no further warning. The applicant then hid at home until he was able to arrange to depart Pakistan.
h)Two of the applicant’s cousins were killed in bomb blasts in the applicant’s home town. One was killed in 2013 and the other was killed in 2015.
i)The applicant fears harm from the Taliban or anti-Shia militants if he returns to Pakistan because he was a teacher, he is a Shia Muslim, he is a member of the Turi tribe, and because he is from his home town.
j)The applicant fears harm from the Pakistani authorities because he applied for asylum in Australia and because his personal details were released by the Department in a data breach.[14]
[14] Court book page 198 at paragraph [24].
One of the issues in this case is whether the IAA has properly understood the applicant’s claims. This matter is dealt with further below.

The IAA’s reasons

After setting out the procedural background to this matter, the IAA considered the four post hearing submissions and the extent to which it could and indeed should consider some or all of those submissions.[15]
[15] Court book page 194 at paragraphs [5] to [22].
It is common ground that as this application arises under Part 7AA of the Act, there are various limitations on the extent to which the IAA can consider new information. Put simply, a ‘fast track decision’ under Part 7AA of the Act is subject to a limited form of review. Once an adverse decision is made in respect of a fast track reviewable decision, the Minister is required to refer that decision to the IAA. Section 473CB of the Act sets out the information which is to be provided to the IAA in respect of fast track reviewable decisions.
Relevantly, section 473DB of the Act provides that, other than as permitted in Part 7AA, the IAA must review a fast track reviewable decision by considering the review material, without accepting or requesting new information and without interviewing the applicant.
Section 473DD of the Act then states that the IAA must not consider new information unless satisfied of the factors set out in subsection (a) and (b).
Applying these principles, the IAA in this instance concluded that:
a)the first post hearing submission was not new information and it had regard to it;[16]
b)the second post hearing submission contained some information which could properly be considered new information. The IAA was not satisfied that the requirements of section 473DD of the Act were met in respect of that new information and therefore did not have regard to that new information. However, to the extent that the second post hearing submission contained information which was not new information, the IAA indicated that it would have regard to that information.[17]
c)the third post hearing submission was not new information and it had regard to it;[18]
d)notwithstanding that it was provided well outside the timeframe for the provision of such new information, the IAA considered the information and concluded that the fourth post hearing submission contained new information, that the requirements of section 473DD of the Act were met and it would have regard to the new information.[19]
[16] Court book page 194 at paragraph [6].
[17] Court book page 194 at paragraph [7] to [8]; and page 195 at paragraph [8] to [10].
[18] Court book page 195 at paragraph [11].
[19] Court book page 195 at paragraphs [12] to [13]; and page 196 at paragraphs [14] to [16].
The IAA also considered the request made by the applicant’s representative in the fourth post hearing submission for a further interview to be heard in relation to his claims for protection and to address any adverse information that arises throughout the review process.[20]
[20] Court book page 196 at paragraph [17].
After considering the statutory context in Part 7AA of the Act together with the history of this matter, the IAA concluded that the applicant had had sufficient opportunity to provide information to the department before a decision was made. The IAA decided not to request any further information from the applicant or to invite the applicant for an interview.[21]
[21] Court book page 197 at paragraph [20].
The IAA also addressed information from an unidentified source regarding allegations about the applicant’s involvement in relation to alleged killing of individuals associated with the Taliban. The IAA concluded that these allegations were not relevant to the matters raised in the applicant’s application and therefore did not have regard to this information.[22]
[22] Court book page 197 at paragraph [23].
After setting out its understanding of the applicant’s claims, the IAA noted that during the interview on 31 May 2016, the applicant’s mental health was raised with the delegate by the applicant’s representative. The IAA observed that the review material did not include medical records about the applicant's mental health. After noting that it had listened to the recording of the interview, the IAA concluded that the applicant appeared capable of understanding questions put to him at interview before the delegate and capable of answering those questions[23] and that his mental health condition did not explain the numerous and significant inconsistencies in his evidence.[24]
[23] Court book page 198 at paragraph [25].
[24] Court book page 201 at paragraph [39].
After setting out the requirements in section 5J of the Act necessary to establish a well-founded fear of persecution, the IAA considered whether the applicant met these requirements by considering his various claims and the evidence in relation to each of them.
In particular, the IAA considered the evidence in relation to the applicant’s claims about:
a)being a teacher at a school;[25]
b)being a Shia and Pashtun Turi from FATA;[26] and
c)being a failed asylum seeker and a victim of a data breach.[27]
[25] Court book page 199 at paragraphs [29] to [30]; page 200 at paragraphs [31] to [35]; and page 201 at paragraphs [36] to [41].
[26] Court book page 199 at paragraphs [29] to [30]; page 200 at paragraphs [31] to [35]; and page 201 at paragraphs [36] to [41].
[27] Court book page 203 at paragraph [53] to [55]; and page 204 at paragraph [61].
The IAA did not accept that:
a)the applicant was a teacher in Pakistan;
b)he received threats[28]; or
c)there was a real chance the applicant would be harmed by the Taliban or other anti-Shia militants or others because of his claim that he was a teacher.[29]
[28] Court book page 199 at paragraph [29].
[29] Court book page 201 at paragraph [41].
In reaching that finding, the IAA had regard to:
a)the fact that the applicant did not appear to have any teaching qualifications;
b)inconsistencies in his evidence in relation to what classes he claimed to have taught,[30] the name and location of the school,[31] when he commenced working as a teacher[32] and the period of time that passed between the two threats being received;[33]
c)country information in relation to the prevalence of document fraud;[34]
d)inconsistences in relation to the name and location of the school;[35] and
e)the fact that the claimed threats were not raised at entry interview.[36]
[30] Court book page 200 at paragraphs [31] to [32].
[31] Court book page 200 at paragraph [34].
[32] Court book page 201 at paragraph [36].
[33] Court book page 201 at paragraph [37].
[34] Court book page 200 at paragraph [33].
[35] Court book page 200 at paragraph [34].
[36] Court book page 200 at paragraph [35].
Whilst the IAA accepted that the applicant had participated in a protest as claimed, having regard to country information, the IAA did not accept that there was a real chance that the applicant would face serious harm for being a Turi, a Pashtun, Shia, for participating in a protest or from originating from the FATA now or in the reasonably foreseeable future.[37]
[37] Court book page 203 at paragraph [52].
The IAA accepted that the applicant’s personal details were disclosed in the 2014 data breach.[38] The IAA did not however accept that the Pakistani government had information about his protection claims.[39] Whilst the IAA was not satisfied that the applicant's information was accessed by others,[40] it went on to find that even if that occurred it was not satisfied that there was a real chance or real risk of the applicant suffering "adverse consequences" as a result of the Pakistan government or others accessing information on the Department's website.[41]
[38] Court book page 203 at paragraph [54].
[39] Court book page 204 at paragraph [56].
[40] Court book page 2014 at paragraph [57].
[41] Court book page 204 at paragraph [59].
The IAA accepted that the applicant would return to Pakistan as a failed asylum seeker however, having regard to country information and the applicant's circumstances, the IAA was not satisfied that there was a real chance that the applicant would face serious harm from the Pakistani authorities because he would return as a failed asylum seeker.[42]
[42] Court book page 204 at paragraph [61].
The IAA then concluded, having regard to all of the evidence and the applicant’s claims both ‘singularly and cumulatively, as well as the personal circumstances of the applicant’[43], that the applicant did not meet the requirements of the definition of a refugee and did not meet the requirements of section 36(2)(a) of the Act.[44]
[43] Court book page 205 at paragraph [62].
[44] Court book page 205 at paragraphs [62] to [63].
In considering the applicant’s claims under the complementary protection provisions, the IAA was not satisfied that the applicant would not be able to obtain reasonable mental health care in Pakistan and otherwise relied on its previous findings to find that the applicant did not face a real risk of significant harm on return.[45]
[45] Court book page 2015 at paragraph [67].

Application for extension of time

The applicant listed the following grounds in application for an extension of time:
2.There is a reasonable explanation for the delay. The Applicant’s delay was occasioned by health issues and hospitalisation.
3.The delay is relatively short and not significant.
4.The delay does not cause prejudice to the First Respondent.
5.The Applicant’s application for review has reasonable prospects of success.[46]
[46] Applicant’s amended application filed 21 January 2019.
The Minister did not oppose this application and therefore an extension of time was granted.

Ground one

The first ground of review is:
The Authority erred by engaging in irrational or illogical reasoning in making its findings as to the credibility or probity of the applicant’s evidence.
Particulars
(a)The Authority concluded that the applicant was not truthful, had fabricated claims and produced fabricated evidence on account of inconsistencies, in circumstances where those “inconsistency” finding were either.
(i)      made without hearing evidence from the applicant;
(ii)    not reasonably open to the Authority;
(iii)   minor;
(iv)    not further assessed for significance in accordance with law.
(b)The Authority made findings in relation to the applicant’s credibility on the basis of inconsistencies between his evidence and other evidence which it determined to be fabricated, without affording him an opportunity to give evidence.
(c)The Authority made unwarranted assumptions in relation to
(i)      regulatory frameworks or the compliance therewith; and
(ii)         standards of institutional professionalism and formality in the applicant’s country;
(d)The Authority applied a logically inconsistent approach to the assessment of inconsistencies in the applicant’s identification and occupation evidence.
(e)The Authority made adverse findings as to the applicant’s credibility without allowing the applicant to give evidence.
(f)The Authority used illogically derived or unassessed minor inconsistencies and trivial errors to make adverse findings as to the applicant’s credibility, where that credibility finding was critical to the Authority’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa.
(g)The Authority failed to consider explanations for the inconsistencies found that were
(i)      given by the applicant; or
(ii)    reasonably available.
in relation to the one explanation it did consider, it failed to do so in a rational manner.
(h)The authority failed to consider the effect of relevant information (which it had expressly acknowledged) in arriving at conclusions on which that information would have a clear bearing, and relied on information of objectively lesser significance in arriving at those conclusions.[47]
[47] Applicant’s amened application filed 21 January 2019.

Preliminary issue

Counsel for the first respondent took issue with the manner in which the applicant sought to press the argument that the IAA’s decision was legally unreasonable as a result of the fact that his request to give oral evidence to the IAA was rejected. He argued that to the extent to which it is being said on behalf of the applicant that the IAA’s decision was affected by legal unreasonableness by:
…the tribunal not putting something to the applicant … (that) ground is not mentioned in the application and by dint of rule 44.12 sub (1) of the Rules, the applicant can’t run it today. It is a matter for the applicant whether or not they wish to seek leave to amend their application to include it.[48]
[48] Transcript page 8 at lines 27 to 31.
In response, senior counsel for the applicant took issue with the suggestion that the applicant would need to amend its application in order to raise a question about the applicant not having been given the opportunity to be heard. It was submitted that the question of the applicant not having been given the opportunity to be heard before the IAA, was squarely raised in the application for review to this court, in ground one at:
a)paragraph (b), which relevantly provides:
The Authority made findings in relation to the applicant’s credibility on the basis of inconsistencies between his evidence and other evidence which it determined to be fabricated, without affording him an opportunity to give evidence.
and
b)paragraph (e), which relevantly provides:
The Authority made adverse findings as to the applicant’s credibility without allowing the applicant to give evidence.
In response, counsel for the Minister confirmed that to the extent that the applicant argues that the failure to interview him by the IAA is a contextual matter which ought to be taken into account in determining whether the credibility findings were legally unreasonable, no issue is taken with that point being pressed. However, if the applicant is seeking to argue that it was legally unreasonable not to interview the applicant, then that, it is said, is a new ground and rule 44.12 of the Act is engaged.
I understand the argument being put by the applicant, both by reference to the amended application and the submissions made in support of that application, is that the failure to interview the applicant was a contextual matter which needs to be taken into account in determining whether the findings made by the IAA were legally unreasonable. On that basis, there is no need for any amendment. Indeed, no such amendment was sought by the applicant.

Applicant’s submissions

In support of this ground, it was submitted on behalf of the applicant that it was
… plainly illogical for the Authority to have rejected the applicant’s evidence principally on the basis of inconsistencies with… a support document provided by the applicant, which the Authority rejected as fabricated.[49]
[49] Applicant’s outline of submissions filed 21 January 2019, page11 at paragraph [20].
At the heart of this submission is the proposition that it is illogical to suggest that the applicant would go to the trouble of fabricating a document which then did not actually support his case.[50]
[50] Transcript page 8 at lines 8 to 15.
Moreover, it is argued on behalf of the applicant that the very finding that the document tendered by the applicant was evidence of the fact that he was a teacher was fabricated was irrational and illogical and not supported by the evidence. The applicant also takes issue with the suggestion that the prevalence of document fraud in Pakistan is a proper basis on which to make a finding that a particular document is fraudulent.[51]
[51] Applicant’s outline of submissions filed 21 January 2019, page 11 at paragraph [23].
The applicant also argues that there is an internal inconsistency in the IAA saying that it would place ‘little weight’ on the ‘fabricated document’[52] on the one hand and then finding that it was not a ‘genuine document’ on the other[53] and that the later finding was legally unreasonable.[54]
[52] Court book page 200 at paragraph [34].
[53] Court book page 201 at paragraph [41].
[54] BTF15 v Minister for Immigration and Border Protection [2016] FCA 647; 69 AAR 376 at [56].
The applicant further argues that:
a)the IAA has irrationally applied a ‘developed-world standards of documentary comprehensiveness, and institutional formality and professionalism to a small rural school in a developing country.’ The terms of the letter from the school at which the applicant claims to have been employed could not reasonably support a finding adverse to the applicant, particularly, it was said where the applicant had not been afforded the opportunity to be heard by the IAA and have his credit assessed in the usual way.[55]
b)Similarly, it was irrational or illogical for the IAA to conclude that the applicant was not a teacher because he did not hold formal teaching qualifications and again in the absence of an opportunity to respond, these assumptions remain untested.[56]
c)It was irrational for the IAA to draw an adverse inference from the apparent inconsistency between the name and geographical location of the school, particularly where this matter was not raised with the applicant.[57]
d)There are various other irrational conclusions or inconsistencies in the IAA’s reasoning whereby the IAA considered various minor inconsistencies to be significant.[58]
e)The IAA failed to consider whether inconsistencies in the applicant’s evidence might be explained by something short of ‘untruthfulness’, particularly so given that the applicant’s request for an opportunity to give further oral evidence was denied.[59]
[55] Applicant’s outline of submissions filed 21 January 2019, page 12 at paragraph [26].
[56] Applicant’s outline of submissions filed 21 January 2019, page 12 at paragraph [27].
[57] Applicant’s outline of submissions filed 21 January 2019, page 12 at paragraph [28].
[58] Applicant’s outline of submissions filed 21 January 2019 page 13 at paragraphs [29] to [30]; and Transcript page 6.
[59] Applicant’s outline of submissions filed 21 January 2019 page 14 at paragraphs [31] to [33].
For each of these reasons, the applicant argues that the IAA’s findings were either plainly illogical, lack any evident and intelligible justification or are conclusions which fail to attempt any rational analysis.
During oral submissions, senior counsel for the applicant further stated that by focusing on the applicant’s claims about being a teacher, the IAA failed to consider the proper basis of the claim made by the applicant. After pointing to relevant parts of the IAA’s decision record, senior counsel for the applicant submitted:
So they completely miss the point of the application, and in our submission, reasoning like that in face of the claim as made lacks any intelligible foundation and is therefore legally unreasonable.[60]
[60] Transcript page 5 lines 24 to 26.

Minister’s submissions

In response, it was submitted by counsel for the Minister that there was no distortion of the applicant’s claims. Rather the delegate and the IAA responded to the claims as advanced. A central element of those claims included whether the applicant was a teacher.
Moreover, contrary to the submission put on behalf of the applicant, it was submitted by the first respondent that the IAA did consider the applicant’s claim that he feared persecution on the basis of his religion or ethnicity, namely being a Shia and that he was afraid of the Taliban.
The Minister further argues that there is no illogicality in the IAA rejecting the applicant’s evidence on the basis of inconsistencies between his evidence and the information in a document he submitted. Moreover, it was open to the IAA to conclude that the document was fabricated notwithstanding that it was produced by the applicant.
It was further submitted that much of the complaints made by the applicant of the IAA’s reasons is ‘an impermissible attempt to minutely scrutinize the reasons in zealous pursuit of error.’[61] Moreover, it is a question of fact for the tribunal to determine ‘the appropriate ‘standards’ of ‘documentary comprehensiveness’, ‘institutional formality’ and ‘professionalism’ that should be expected from documents such as those advanced by the applicant.’[62] Moreover, there is no evidence before the IAA that would support a submission that they ought to have assumed that there were lower standards in Pakistani schools than might be expected in a ‘developed country’.[63]
[61] First respondent’s outline of submissions filed 4 February 2019, page 5 at paragraph [21].
[62] First respondent’s outline of submissions filed 4 February 2019, page 6 at paragraph [22].
[63] First respondent’s outline of submissions filed 4 February 2019, page 6 paragraph [24].
The Minister concedes that credibility findings are not immune from scrutiny on judicial review; however, submitted that such findings can only be interfered with where there is legal error. It is submitted on behalf of the Minister that any argument that the IAA committed a jurisdictional error by having regard to ‘minor’ details in making adverse credibility findings, fails to have regard to the numerous concerns about the document produced by the applicant in support of his claim.
It is also argued on behalf of the Minister that the attack on the IAA’s reasons in relation to the adverse findings regarding the applicant’s educational qualifications is misguided, not only because these are factual matters which require assessment by the IAA, but also because these matters need to be properly considered in the overall context of the concerns that the IAA had about the applicant’s credibility.[64]
[64] First respondent’s outline of submissions filed 4 February 2019, page 7 at paragraphs [27] to [28].
To the extent that the applicant says that there was material before the IAA which could have alleviated any concerns it may have had about the discrepancies between the applicant’s evidence as to the geographical location of the school at which he says he was employed and the geographical location specified in the letter, it was argued that this does not amount to jurisdictional error. It was argued that there was no obligation on the IAA, notwithstanding that this material was before it, to accept the applicant’s position.[65]
[65] First respondent’s outline of submissions filed 4 February 2019, page 8 at paragraph [29].
The Minister rejects the suggestion that the IAA’s treatment of the various matters dealt with at paragraph 29 of the applicant’s written submissions, give rise to any illogicality or irrationality such that the IAA’s decision is affected by jurisdictional error.[66]
[66] First respondent’s outline of submissions filed 4 February 2019, page 8 at paragraph [30] to [31]; and page 9 at paragraph [32].
Whilst it is conceded by the Minister that credibility findings were central to the IAA’s conclusions in this matter, it is submitted that when regard is had to the IAA’s reasons in their totality, the conclusion regarding credibility was reasonably open to the IAA.
The Minister submitted that there was no factual or legal basis to support an inference that ‘the applicant’s detention necessarily reveals that he claimed asylum in Australia.’[67] As such, it is argued that the applicant’s submission that the IAA’s findings in relation to the data breach were legally unreasonable is misconceived.[68]
[67] First respondent’s outline of submissions filed 4 February 2019, page 10 at paragraph [40].
[68] First respondent’s outline of submissions filed 4 February 2019, page 10 at paragraph [40].
Finally, in relation to complaints about the manner in which the IAA dealt with country information, it is submitted on behalf of the Minister that an assessment of country information is a matter for the IAA and therefore this complaint does not evidence a jurisdictional error.[69]
[69] First respondent’s outline of submissions filed 4 February 2019, page 11 at paragraph [41].

Consideration

It is well settled that in considering the tribunal’s reasons, this court ought not construe them ‘minutely and finely with an eye keenly attuned to the perception of error.’[70]
[70] See comments of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 (“Wu Shan Liang”), the majority considered the role of a reviewing court in a judicial review application. In this context, in considering the reasoning of the court below, the majority said:
…the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (footnotes excluded).[71]
[71] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [272].
In Wu Shan Liang, the Honourable Justice Kirby also helpfully set out a series of principles which should guide a judge conducting judicial review of an administrative decision maker’s reasons. In particular, he said:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[72]
[72] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [291].
These comments are of particular importance in this case, when considering the issues raised in ground one by the applicant.
Turning then to the question of what constitutes legal unreasonableness, as noted by the applicant, Thawley J recently summarised these principles as follows:
[20] The principles with respect to ‘illogicality’ in an administrative decision giving rise to jurisdictional error are well established. The decision must be one at which no rational or logical decision-maker could have arrived on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 610 at [130] (Crennan and Bell JJ). The ground cannot be made out if different minds might reach different conclusions: at [131].
[21] The principles with respect to ‘legal unreasonableness’ are also well established:
(1) The question of whether a decision is legally unreasonable is directed to whether or not the decision or action is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 … at [54] – [60](Gageler J); [78] – [79] (Nettle and Gordon JJ); [135] Edelman J)/
(2)A decision may be found to be legally unreasonable having regard to the scope, purpose and objects of the statutory power:
(a)because it is ‘illogical’, but an inference of unreasonableness is not to be drawn only where a decision appears to be irrational : SZVFW at [10] (Keifel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);
(b)if it ‘lacks an evident and intelligible justification’: Li … at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);
(c)if it is arbitrary, capricious, lacking in common-sense or plainly unjust: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90] ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).
The applicant also referred to the High Court decision in Minister for Immigration and Border Protection vSZVFW [2017] FCAFC 33; 248 FCR 1 (“SZVFW”) in which Nettle and Gordon JJ noted that:
…the abuse of statutory power [is not] limited to a decision which may be described as ‘manifestly unreasonable’, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focussed – where, for instance, there is no ‘evident and intelligible justification ‘for the decision. As Gageler J explained in Minister for Immigration & Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[73]
[73] Minister for Immigration and Border Protection vSZVFW [2017] FCAFC 33; 248 FCR 1 at [82].
It is well settled that a credibility finding, like any other finding of fact is amenable to judicial review if the decision maker has committed a jurisdictional error in reaching that conclusion.[74]
[74] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 at [37] to [38] per McKerracher, Griffiths and Rangiah JJ.
As noted by senior counsel for the applicant, the Full Court of the Federal Court made some relevant observations in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 (“AVQ15”) regarding how a decision maker ought to approach questions of inconsistency in evidence. In AVQ15, the court made the following general observations which equally apply to the facts in this matter:
[23]A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility of accounts given by asylum seekers is well recognised as involving a number of particular feathers and considerations and calls for a careful and thoughtful approach.
…
[27] Secondly, the term ‘inconsistency’ should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
[28] Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review. (emphasis added)

In AVQ15, the court found that on the facts before it, the tribunal had failed in its statutory task because on the facts in that case, the tribunal made findings to the applicant on the basis of inconsistencies in the claims he made initially, and the claims then made before the tribunal. However, the tribunal did not have regard to the transcript of the interview with the departmental officer. Ultimately, the Full Court held that the failure to do so meant that its decision was affected by jurisdictional error.[75]
[75] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [48].
Relevantly for present purposes however, the Full Court considered the relevant leading cases[76] and summarised the following legal principles which apply to judicial review of adverse credibility findings, particularly in the context of whether the failure to take into account relevant material in making such findings, gives rise to jurisdictional error.
[76] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [40].
…the principles… may be summarised as follows:
(a)The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b)While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c)Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d)Even if an aspect of reasoning, or a particular finding of fact, 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 (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e)Merely because there is no reference in the decision-makers’ reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making …
(f)Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.[77]
[77] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [41].
Ultimately, the finding in AVQ15, that the tribunal’s decision was affected by jurisdictional error was based on the fact that the tribunal should have had, but did not have, regard to the transcript of the interview before the departmental officer before coming to its conclusions on credit.
Turning then to consider the facts in this case, it is important to note that the applicant’s application was a fast track reviewable decision which was considered under Part 7 AA of the Act. Part 7AA of the Act provides for a more limited form of review than would otherwise apply under Part 7 of the Act.
Relevantly, section 473DA of the Act provides that Division 3 of Part 7AA, together with section 473GA and 473GB ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the’ IAA.[78]
[78] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [42].
In addition, section 473DB of the Act provides that, other than as provided for under Part 7AA, the IAA must conduct a review without accepting or requesting new information and without interviewing the referred applicant.
It is in this context that the applicant’s claims must be viewed. At paragraph 15 of the applicant’s written submission, counsel for the applicant identifies a number of inconsistencies determined by the IAA.
With respect, the submission, in my view mischaracterise the authority’s reasoning.
The IAA’s reasoning at paragraph 9 arises in the context of considering whether new information provided by the applicant falls within the terms of section 473DD of the Act such that the IAA is able to have regard to it.
The matters dealt with by the IAA at paragraphs 35 to 40 of the decision record and referred to at paragraph 15 of the applicant’s written submission, are proper matters which the IAA was entitled to have regard to and weigh up in the process of considering the applicant’s claim that he feared harm as a result of being a teacher, which the Taliban opposed.
When one reads the IAA’s reasons fairly in the sense contemplated by Wu Shan Liang, it is clear that the IAA was addressing the applicant’s claim to fear harm as a result of being a teacher at paragraphs 29 to 41. The opening words of paragraph 29 make this clear when the IAA says:
The applicant claimed that he fears harm from unknown persons, from the Taliban and other anti-Shia militias because he was a school teacher at a school which received two ‘threat’ letters.[79]
[79] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 at [29].
Quite appropriately, the IAA discussed the evidence in support of this claim and explained its reasons for accepting or rejecting that evidence.
The IAA properly considers the letter produced by the applicant and considers whether it can be relied upon to buttress his claims. Ultimately, for a variety of reasons, including the apparent inconsistencies between the terms of the letter itself and the evidence given by the applicant, together with the country information which suggests that document fraud is prevalent in Pakistan, the IAA did not accept that the letter was genuine. This finding was reasonably open to the IAA on the material before it.
The IAA outlines the various concerns it has about the evidence given by the applicant about his teaching and ultimately concludes that he fabricated his claims that he worked at a school which received letters containing threats.
Contrary to the submission made on behalf of the applicant, it is not, in my view, plainly illogical for the IAA to have rejected the evidence on the basis of evidence which the IAA decided was fabricated.
First of all, it is clear from a fair reading of the IAA’s reasons that the reason for rejecting the applicant’s claims that he was a teacher and that he taught at a school which received threats, was based not only on the letter produced by the applicant but on a whole range of factors, which are identified in the IAA’s reasons at paragraphs 30 to 40, namely:
a)on the applicant’s own evidence, he only had completed year 10 study;
b)not only was he a teacher, but at times he acted as assistant principal in the school;
c)the applicant did not appear to have any teaching qualifications;
d)the inconsistent evidence given by the applicant at various stages about the subjects which he was employed to teach at the school;
e)the lack of consistency between the subjects the applicant said he was employed to teach and the letter which purported to be from the school itself;
f)the lack of detail in the letter from the school as to how long he had been employed at the school and the absence of any statement in that letter to the fact that the applicant had apparently worked as an assistant principal from time to time;
g)the lack of consistency between the name and location of the school at which the applicant said he worked by the applicant as compared to the letter from the school itself;
h)the fact that the applicant had not disclosed the alleged threats received by the school in his arrival interview; and
i)various other inconsistencies between the applicant’s evidence over time, about, for example:
i)when the threat letters were received;
ii)when he started teaching at the school; and
iii)how long after the receipt of the threat letters he waited before leaving Pakistan.
The IAA also clearly considered whether there were other reasons that might explain some or all of these difficulties with the applicant’s evidence. For example, it considered whether translation issues might explain the inconsistency between the detail about the school in the letter and the evidence given by the applicant.[80] The IAA also considered whether the mental health issues which the applicant had might have explained these matters. The IAA stated:
I have listened to the protection visa interview and I am satisfied that the applicant gave clear answers to the questions asked of him.[81]
[80] Court book page 200 at paragraph [34].
[81] Court book page 201 at paragraph [39].
I am satisfied, that the conclusions reached by the IAA were reasonably open to it on the basis of the evidence before it. The reasons given are detailed and do not disclose any illogicality or irrationality in the sense necessary to make a finding of legal unreasonableness. Whilst it would be fair to say that individually these concerns may not give rise to sufficient basis to reject the applicant’s claims, having regard to them cumulatively, it was open to the IAA to reach the conclusions that it did.
To the extent that the applicant’s written submission take issue with the finding that the letter was a fabrication,[82] the applicant relies upon the statement by Katzmann J in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647; 69 AAR 376 (“BTF15”) where Katzman J noted:
[56] Nevertheless, I am troubled by the Tribunal’s conclusion that the statements of the two witnesses were fabricated. It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that ‘as a matter of logic and common sense, something more than a mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence. … The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication … In the circumstances, that finding was unreasonable. It should not have been made.
[82] Applicant’s outline of submissions filed 21 January 2019, page 11 at paragraph [24].
However, Katzman J went on to say:
[57] Having said that, for the reasons I have already given, it was open to the Tribunal to find that what the witnesses had said could not rehabilitate the appellant’s evidence. That is what the Tribunal plainly did … Having reached that view, it was not unreasonable for the Tribunal not to call oral evidence from them.
The facts in this case are not analogous to those in BTF15. In this case, the applicant did not propose calling the author of the letter to give evidence. Rather it is clear from a fair reading of the IAA’s reasons that the IAA gave consideration to the letter but was not satisfied that the letter was a genuine document. In coming to this view, the IAA had regard not only to the inconsistencies between the letter and evidence given by the applicant, the fact that the letter did not contain some of the information one would reasonably expect to see in a formal document of that type, but also the fact that country information indicated that there was a prevalence of fraudulent documents in Pakistan.
It was submitted on behalf of the first respondent that to the issues raised in this application amount to ‘an impermissible attempt to minutely scrutinize the reasons in zealous pursuit of error; it is nit-picking the language of the Tribunal.’[83] There is much force to this argument.
[83] First respondent’s written submissions filed 4 February 2019.
The submissions made on behalf of the applicant at paragraph 29 are particular examples of this approach. For example, the applicant is critical of the IAA’s comments at paragraph 35 of its reasons that:
…it was significant that, at the arrival interview on 30 July 2013, although he mentioned that he was employed as an English teacher from 2008 to 2013, he made no mention of threats to the school at which he claimed to work.[84]
In the written submissions, it was argued that it was not rational to take issue with:
…the applicant’s failure to refer specifically to letters of threatened violence at his interview … where he was referring to actual violence … and violence more generally.
[84] Court book page 200 at paragraph [35].
At his arrival interview, the applicant provided the following information:
Q. Why did you leave Pakistan?
A. I left because of all the bad events, explosions, and bad things happening, people getting killed and all these situation I had to leave and get out of Pakistan.
Q. Who did this?
A.Nobody is sure but mainly it is the Taliban.
Q. Why do they do it?
A. Nobody knows the whole thing, the reason and whats behind it. If you go to the tow Basar, no one knows if you will come back. They are there. And there was an explosion 3 days ago. My cousin was killed in an explosion also.
Q. Did anything happy to you and your family?
A. Nothing happened as they are not directly in that area.
Q. (sic) No body knows why or the reason, it’s just because of the religion it happens. You go outside and they just blow themselves up. (emphasis added)[85]
[85] Court book page 12.
In this exchange, not only was there no mention of any threat, but there was no mention of the applicant (or his family) having been particularly targeted for any reason. Rather, the applicant’s claims appear to have been that there was generalised violence at the hands of the Taliban and that from time to time, people, including members of his family, were impacted, in some cases fatally, by that violence.
In addition, in answer to questions about what would happen to him if he were to return to Pakistan, the applicant said:
If I was to go back to Pakistan I wouldn’t be safe. My life would be in danger definitely. I would be killed as they are all around our villages and they will kill. That’s why I came here, to bring my family here and they can be safe too.[86]
[86] Court book page 12.
Moreover in response to a question as to whether the applicant or anyone in his family were involved in any activities or protests against the government, the applicant made reference to participating in a protest against the Taliban following an explosion about three months before he left Pakistan after there had been an explosion in Parachenar. He said ‘I was in protest and after that I was in the eyes of Taliban.’[87]
[87] Court book page 12.
Again, at no stage did the applicant refer to the fact that he was a target merely because he was a teacher in a school or that the school had received threats and that he feared as a result of those threats.
Similarly, in the case assessment and biodata interview, when asked why he left his country, the applicant said ‘Not safe in Pakistan. Teacher in private school.’[88] Again, although he referred to being a teacher, he did not refer to any threat to him personally.
[88] Court book page 24.
In that context, and reading the decision of the IAA fairly in the sense contemplated by Wu Shan Liang, it was entirely open to the IAA to conclude that the fact that the applicant had not made any mention of the threats to the school and to him personally until his statutory declaration filed in April 2016, was a factor which led it to conclude that those claims were not genuine.
Similarly, the analysis set out in the remaining sub-paragraphs of paragraph 29 and paragraph 30 take an overly pedantic approach to the IAA’s reasoning. In essence, the IAA’s reasons must be read in their entirety. When one takes this holistic approach, it is clear, and I find that the conclusions reached by the IAA were reasonably open to it.
The applicant relies upon the Full Court decision in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 (“CQG15”) to support the argument that the IAA fell into error on the basis that it made findings of ‘untruthfulness’ in circumstances where there may have been another equally probable explanation for the conflict in evidence, which was not properly explored.
In CQG15, the appellant argued that whilst it may have been open to the tribunal to, at best, conclude that there was a basis to doubt or not to accept the applicant’s evidence, there was no logical or rational basis upon which the tribunal could have properly concluded that the applicant’s evidence was false or a fabrication.[89] After discussing the inconsistencies identified by the tribunal, the applicant in CQG15, essentially argued:
…that it was not open to the Tribunal to aggregate the cumulative effect of those incongruities and inconsistencies, which are of a minor nature, so as to reach a global conclusion that the appellant was not ‘a witness of truth’ and that is accounts of events was false. There were, in fact, no findings of falsity at all, the appellant stresses, and secondly, the incongruities and/or inconsistencies were minor.[90]
[89] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 at [40].
[90] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 at [48].
It is in this context that the applicant relies upon the comments made at [51] of CQG15 in which the court referring to the decision of Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256; 66 ALJR 605; 108 ALR 55 (“Smith”) in which Deane J noted that ‘unless it be truly necessary for the purpose of disposing of the particular case… a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made.’[91]
[91] Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256; 66 ALJR 605; 108 ALR 55 at [4].
The applicant is correct when he says that in CQG15, the full court accepted the applicant’s statement that:
…(to) reach a conclusion of falsity (the Tribunal) needed to discount other reasons for incongruity and inconsistency in the appellant’s evidence, such as the possibility that the Tribunal’s speculation was incorrect, the appellant had provided his evidence through interpreters, the hearing was conducted by telephone, or, more importantly, the appellant had made a genuine mistake or was poorly educated.’[92] However, as noted at paragraph [58], the full court notes that whilst the statement of principle is fully accepted, the question remains as to whether the application of principle, by reference to the findings made in this particular case, demonstrates error of the kind to which the appellant points.’
[92] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 at [51].

Ultimately, as noted by the Minister, the court in CQG15 concluded that whilst it:
…may be accepted that cases such as … Smith do make the point that, unless it is strictly necessary, it is preferable not to reach a conclusion that an applicant is a ‘liar’. But while this is indeed sound practice, the remarks do not suggest that the Tribunal will have fallen into jurisdictional error if it does not reach such a finding. There was ample foundation in this instance for the Tribunal to reach the conclusion that the appellant was not a witness of truth.’[93]
[93] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413; 253 FLR 496 at [66].
In this case, credibility of the applicant was in issue. A fair reading of the IAA’s reasons indicate that the IAA had a number of concerns about the applicant’s credibility, particularly in relation to his claims of fear arising from the fact that he was employed as a teacher at a school which received two threat letters.
Those concerns arose from:
a)the fact that the applicant had only completed year 10 at high school;
b)the applicant’s lack of professional teaching qualifications;
c)the inconsistency in his material as to the subjects that he was employed to teach;
d)inconsistencies in the name and location of the school between evidence given by the applicant and a letter put forward by him to evidence his employment history;
e)inconsistencies in the year that the applicant says that he commenced teaching;
f)the statements made by the applicant in his arrival interview as to the reasons for having left Pakistan, with no reference at all to his status as a teacher;
g)inconsistencies in the applicant’s evidence about when the two threat letters were received; and
h)the fact that the applicant had not referred to his claims of fear arising from his teaching and the threats received until 2016.[94]
[94] Court book page 199 at paragraphs [29] to [30]; page 200 at paragraphs [31] to [35]; and page 201 at paragraphs [36] to [38].
When viewed together and having regard to (although rejecting) the possibility that some of these inconsistencies might have been explained by translation error or mental health considerations, it was open to the IAA to conclude that the applicant was not telling the truth about these claims. Moreover, as stated above, having regard to country information regarding the prevalence of fraudulent documents in Pakistan, it was reasonably open to the IAA to conclude that the reference letter produced by the applicant to support his claims was not genuine.
The applicant also claims that the IAA’s finding in relation to the data breach claims was legally unreasonable in circumstances where it was accepted that the applicant’s details, including that the applicant was in immigration detention was disclosed as a result of the data breach. The applicant submits that the ‘applicant’s detention would plainly be a sufficient indication to the Pakistani authorities that the applicant had sought asylum in Australia.’[95]
[95] Applicant’s outline of submissions filed 21 January 2019, page 15 at paragraph [37].
The Minister argues that there is no proper basis to support such an inference. I agree. It is evident from the IAA’s decision that although the applicant’s personal details, including details about his detention, were available on the department’s website for a few days in February 2014 as a result of the data breach.[96] However, the IAA also noted that ‘the information did not include contact information or any information about protection claims that the applicant or others may have made.’[97]
[96] Court book page 203 at paragraph [54].
[97] Court book page 203 at paragraph [53].
There is no evidence before this court, nor was there any before the tribunal, which would lead to the conclusion that the mere fact of detention indicates that the detainee has sought asylum, as advanced by the applicant.
Finally, the applicant takes issue with various other findings made in relation to the applicant’s claims to fear persecution on the basis of various other characteristics.[98]
[98] Applicant’s outline of submissions filed 21 January 2019, page 15 at paragraph [38]; and page 16 at paragraph [40].
I agree with the submission put on behalf of the Minister in relation to these matters, namely that this is no more than a claim for this court to engage in impermissible merits review. As the applicant’s written submissions themselves point out, in considering these claims made by the applicant, the IAA had regard to country information and I am satisfied, reached conclusions which were reasonably open to it.
For each of the reasons set out above, the applicant’s claims of legal unreasonableness in ground one is not made out.

Ground two

The second ground of review is:
The Authority erred or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to apply the appropriate statutory test.
Particulars
(a)The Authority failed to apply the appropriate predictive test by placing substantial and disproportionate weight on its finding of an absence of past harm suffered by the applicant.[99]
[99] Applicant’s amended application filed 22 January 2019.
In the applicant’s written submissions, it is put that as a result of ‘the Authority’s irrational rejection of the applicant’s claim to be a teacher, and its apparent focus on its resultant finding of no historical harm’ the IAA filed to undertake the ‘predictive exercise’ and focus on the future risk of harm.[100]
[100] Applicant’s outline of submissions filed 21 January 2019, page 16 at paragraph [41].
The applicant conceded that whilst evidence of past harm is relevant, the ‘weight given to the absence of past harm may have been irrelevant or excessive.’[101]
[101] Applicant’s outline of submissions filed 21 January 2019 page 16 at paragraph [43]; and S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 78 ALJR 180; 203 ALR 112; 78 ALD 8 at [72]-[77].
It was further submitted that the risk of future harm was apparent from DFAT Country Information Report, Pakistan, 2017 and therefore the IAA ‘must have misdirected itself as to the application of the relevant statutory provisions.’[102]
[102] Applicant’s outline of submissions filed 21 January 2019 page 16 at paragraph [43]; and page 17 at paragraph [44].
In response, the Minister stated that as this ground is premised on ground one succeeding, if ground one is not made out this ground too must fail. There is some force to this submission.
For the reasons set out above, the IAA did not act irrationally or unreasonably in concluding that the applicant was not a teacher.
In any event, it is clear from a fair reading of the IAA’s reasons that the IAA did in fact consider whether the applicant would face a real risk of harm in the future as claimed. For example, the IAA’s reasons stated:
I do not accept that he was threatened as a teacher of a school or that the Taliban, anti-Shia militants or others will target the applicant to harm him because he was a teacher. I am not satisfied there is a real chance the applicant will be harmed by the Taliban or other anti-Shia militants or by others because of his claim that he was a teacher, now or in the reasonably foreseeable future, if he returns to Pakistan.[103]
[103] Court book page 203 at paragraph [51].
In addition, it is evident that the IAA did have regard country information in coming to the conclusion that the applicant will not face serious harm if he were to return to Pakistan.[104]
[104] Court book page 203 at paragraph [52]; page 204 at paragraphs [57] to [61].
For each of these reasons, ground two is not made out.

Ground three

The third ground of review is:
The Authority committed jurisdictional error by failing to have regard to a relevant consideration or otherwise failed to carry out its statutory task.
Particulars
(a)The Authority had determined that allegations of serious criminal conduct against the applicant were not relevant to its task or decision, and determined not to have regard to that information (at [23])
(b)A significant matter which bore upon the Authority’s rejection of the applicants claim of a risk of harm from the Pakistani Authorities, was whether the applicant was suspected of criminal conduct (at [60] and [61]).
(c)In making its determination in that regard, having ruled out its relevance, the Authority failed to consider the allegations of serious criminal conduct against the applicant.
(d)In the premises, the Authority failed to take into account a relevant consideration or otherwise failed to carry out its statutory task.[105]
[105] Applicant’s amened application filed 22 January 2019.
In relation to this ground, the applicant’s written submissions are very brief. They state:
In relation to the Data Breach claim, the Authority placed significant weight on DFAT reports that Pakistani authorities do not prolong the detention of failed attempted migrants “who left Pakistan on valid travel documentation and have not committed any other crimes”. In applying this information to the applicant, the Authority simply noted his claims of lawful departure and non-criminal history. However, the Authority was aware of, and did not consider the implications of, the evidence that the data breach revealed that the applicant was in detention in Australia.[106]
[106] Applicant’s outline of submissions filed 21 January 2019 page 17 at paragraph [45].
Senior counsel for the applicant did not expand on these submissions.
In response, counsel for the Minister indicated that this allegation is unsustainable having regard to paragraphs 53 to 61 of the IAA’s reasons.[107]
[107] Court book page 203 at paragraphs [53] to [55]; and page 204 at paragraphs [56] to [61].
In addition, the written submissions for the Minister also noted that the applicant’s written submissions did not address many of the matters raised in ground three. It is submitted that those aspects not addressed ought to be regarded as abandoned.
Notwithstanding being on notice of this position, no further submissions were made in support of ground three at the hearing before me.
In those circumstances, and having regard to the manner in which the IAA expressly dealt with the data breach claim, ground three is not made out.
A fair reading of the IAA’s reasons, particularly in relation to the data breach claim, makes it clear that the IAA did consider the applicant’s claim that he feared harm on the basis of his personal details having been revealed as a result of the data breach. This is apparent especially upon a fair reading of paragraphs 55 and 59.[108]
[108] Court book page 204 at paragraphs [55] to [59].
For each of these reasons, ground three is not made out.

Conclusion

As none of the applicant’s grounds has been made out, therefore the application should be dismissed with costs.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 28 June 2019

CORRECTIONS

Reasons for Judgment: Page 33, Paragraph 115, second line insert “not”.