BQHJ v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCAFC 187
•28 November 2022
FEDERAL COURT OF AUSTRALIA
BQHJ v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 187
Appeal from: BQHJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 372 File number(s): QUD 151 of 2021 Judgment of: RARES, COLLIER AND BROMWICH JJ Date of judgment: 28 November 2022 Catchwords: MIGRATION – appeal from decision of single Judge of the Federal Court of Australia – where primary decision concerned judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of the delegate of the Minister not to revoke the appellant’s visa cancellation – whether primary Judge erred by failing to find that the Tribunal had failed to consider evidence put forward by the appellant before the Tribunal – whether the primary Judge erred in not finding that the Tribunal’s decision was legally unreasonable – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: BQHJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 372
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 43 Date of hearing: 15 November 2022 Counsel for the Appellant Mr L. Karp Solicitor for the Appellant Fisher Dore Lawyers Counsel for the First Respondent Mr A. Psaltis Solicitor for the First Respondent Clayton Utz ORDERS
QUD 151 of 2021 BETWEEN: BQHJ
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RARES, COLLIER AND BROMWICH JJ
DATE OF ORDER:
28 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellant pay the costs of the first respondent to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Before the Court is an amended Notice of Appeal filed on 1 November 2021 from the whole of the judgment in BQHJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 372 (primary decision).
The primary decision determined an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming a decision of the delegate of the first respondent (Minister) not to revoke the cancellation of the appellant’s visa.
Ultimately at the hearing the appellant pressed the following grounds of appeal:
1. The Court erred in finding (at reasons for judgment [65]-[77]) that the second respondent (the Tribunal) took into account, and afforded adequate consideration to, the written evidence of Hassan Ghulam, and submissions directed thereto.
2. The Court should have found, and erred in failing to find, that the Tribunal did not direct an active intellectual process to the evidence of Hassan Ghulam and related submissions, Mr Ghulam’s evidence being that the appellant would be easily identified as a foreigner in Afghanistan,
(a) By his speaking Dari with a Quetta accent
(b) By his speaking Dari with English words interspersed with Dari words and
(c) By his deportment and behaviour,
and that the appellant would “almost certainly be identified as a Pakistani person or agent and would be regarded with suspicion”.
3. The Court erred in failing as a matter of substance to engage with Ground 5 of the appellant’s amended application (at reasons for judgment [34]-[60]).
Particulars
(a) Ground 5 of the amended application pleaded that the Tribunal’s findings as to the evidence of Professor James Freeman, psychologist in respect of the appellant’s removal to Afghanistan were legally unreasonable.
(b) Professor Freeman’s addendum report of 2 September 2020 contained evidence or information relevant to the effect on the appellant of exposure to violence and war related events were he to return to Afghanistan.
(c) The Court did not address that evidence or the Tribunal’s assessment of it. Rather, it addressed the evidence of four psychologists and counsellors, including Professor Freeman, and the Tribunal’s assessment thereof to the appellant’s crime, the circumstances surrounding that crime and the prospects of his committing a similar crime if permitted to remain in Australia.
4. The Court should have found, and erred in failing to find, that the Tribunal decision was affected by legally unreasonableness in that the Tribunal,
(a) Equated the appellant’s being threatened in immigration detention with his being exposed to surging crime, violence and bombings should he be removed to Afghanistan and attempt to live in Kabul.
(b) Preferred its own lay opinion as to the psychological effect on the appellant of crime, violence and bombings in Kabul to that of a professor of psychology.
The issues for consideration in this appeal are, in summary:
·Whether the primary Judge erred in finding that the Tribunal did not fall into jurisdictional error, when (in the submission of the appellant) the Tribunal failed to engage with the evidence of a witness, Mr Hassan Ghulam. In this regard the appellant directed the Court’s attention to evidence of Mr Ghulam that the appellant would be identified as a Pakistani “agent” and would be regarded with suspicion upon removal to Afghanistan (grounds of appeal 1 and 2); and
·Whether the primary Judge engaged with ground 5 of the application at first instance concerning evidence of psychologist Professor James Freeman, and whether his Honour should have found that the Tribunal’s decision was legally unreasonable (grounds of appeal 3 and 4).
CONSIDERATION
We respectfully rely and adopt relevant background facts set out in paragraphs [1] – [9] of the decision of the primary Judge set out below, which summary we understand to be uncontroversial:
1The applicant is a citizen of the Islamic Republic of Afghanistan. Though a citizen of that country, he has never lived there. His Afghanistan citizen parents fled from that country to the neighbouring Islamic Republic of Pakistan before he was born. The applicant was born in Pakistan in 2000.
2When the applicant was 10 years old, his father returned to Afghanistan, never to be seen by his wife and two children (by then, the applicant had a younger brother) again. The applicant’s father is believed to have been killed there in a Taliban initiated bomb blast.
3In 2013, the applicant’s mother obtained the benefit of a Class XB, subclass 204 “women at risk” visa, issued under the Migration Act 1958 (Cth) (the Act). On the strength of their mother’s visa, the applicant and his brother received what might be described as derivative visas of the same class. Later that year, the family entered Australia lawfully pursuant to those visas.
4One evening in March 2015, when he was 15 years old, the applicant committed two offences of rape, one as the principal offender, the other as an accessory. He had two co-offenders, each of whom was an older friend of Afghani origin. The victim was a young lady.
5The applicant pleaded not guilty in respect of these offences on the strength of a denial of involvement. However, on 1 December 2017, after a trial in the District Court of Queensland (District Court), he was found guilty by a jury. An unsuccessful appeal against conviction to the Queensland Court of Appeal followed. On 7 December 2018, in respect of each offence, the District Court sentenced the applicant to detention for a period of two years, to be served concurrently. The applicant was sentenced as a juvenile, on the basis that he was a juvenile when the offences were committed.
6In 2019, in light of the sentence imposed on the applicant, a delegate of the Minister responsible for the administration of the Act cancelled the applicant’s visa, pursuant to s 501(3A) of the Act. There has never been any controversy that cancellation of the visa was authorised by the Act.
7Subsequently, the applicant made a representation to the Minister that the cancellation of his visa should be revoked. On 1 July 2020, a delegate of the Minister decided not to revoke that cancellation.
8The applicant then sought the review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal). On 23 September 2020, the Tribunal decided to affirm the Minister’s delegate’s decision not to revoke the cancellation of the applicant’s visa.
9The applicant has now applied to this Court for the judicial review of the Minister’s delegate’s decision. As is proper, the Tribunal has filed a submitting appearance. The Minister is the only active respondent.
Grounds of appeal 1 and 2
In the Tribunal proceedings Mr Ghulam gave a statutory declaration dated 10 August 2020, in which he relevantly declared:
·Mr Ghulam was born in Afghanistan in 1949 and lived there until around 1971;
·Between 1971 and 1986 he lived in Europe and Pakistan, after which he came to Australia;
·From 2000 to 2014 he worked in various positions assisting Afghan refugees and asylum seekers in Australia, in particular unaccompanied youth;
·At the time of giving the statutory declaration he had known the appellant for around five years, and had met his wife and family;
·He stated his belief in his qualification to provide an opinion on whether the appellant would be recognised as a foreigner or outsider if the appellant “returned” to Afghanistan.
Materially Mr Ghulam declared:
11.These experiences have developed [the appellant’s] personality in terms of the way he speaks, acts and dresses. He has a Quetta dialect, having lived in Pakistan for several years. A Quetta dialect is a cross-mix between Dari, Pashto, Urdu, Balochi, Farsi and Hazaragi, which is very different from the Dari spoken by Afghans who were born and raised in Afghanistan.
12.Any one who speaks a Quetta dialect in Kabul would be almost certainly identified as a Pakistani person or agent. They are regarded with suspicion by those who live in Kabul or the Hazarajat.
Mr Ghulam further made declarations including his belief concerning the appellant’s social life, his use of English, that the appellant was influenced by Australian customs, and that the appellant’s physical behaviour was dissimilar to those who live in Afghanistan.
Paragraph [51] of the Applicant’s Statement of Facts, Issues and Contentions dated 10 August 2020, on which he relied in the Tribunal proceedings, stated as follows:
[The appellant] does claim that he is owed non-refoulement obligations pursuant to Article 1A (2) of the Convention Relating to the Status of Refugees, 1951, as amended by the 1967 Protocol, for reason of his religion. He claims to be a Shia Muslim. The Taliban and Islamic State have a history of persecuting Shia Muslims whom they consider to be heretics and country information to support that claim will be forthcoming in the near future. Apart from this, in the past eight years [the appellant] has adopted speech and mannerisms which would set him apart from native born Afghans and identify him as an outsider. There is evidence that he would be in danger for these reasons3.
Footnote 3 at the end of this paragraph was:
3 See statutory declaration of Hassan Ghulam 10 Aug 2020.
At [151] of its reasons the Tribunal noted the claim of the appellant that, if he were removed to Afghanistan, he would be at risk of harm on the ground of being a returnee from a Western country. At [155]-[156] of its reasons the Tribunal observed:
155.The UNHRC report indicates that there have been reports of returnees from Western countries having been:
“....threatened, tortured, or killed by AEGs on the ground that were perceived to have adopted values associated with these countries, or they had become ‘foreigners’ or that they were spies for or supported a Western country”.
156.I find it unlikely that the Applicant would be identified as having spent time in a Western country as opposed from somewhere closer like Pakistan where he spent the majority of his life. For one, he speaks multiple regional languages including Dari, Pashtu, Hazaragi, Bilochi and Irani. He does not claim to regularly drink alcohol, have tattoos or piercings, speak with an accent that is noticeably Australian, have a public Facebook page or anything else that could possibly mark him as western. I am not satisfied that there is more than a remote possibility that the Applicant would be the target of serious harm or that his life would be threatened on account of him having lived in a Western country.
(footnotes omitted)
The primary Judge referred to this analysis by the Tribunal, noting:
72.The applicant “as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, at [67], per Gummow J. In seeking to discharge this onus, the applicant focussed on [156] of the Tribunal’s reasons, where the Tribunal stated:
156.I find it unlikely that the Applicant would be identified as having spent time in a Western country as opposed from somewhere closer like Pakistan where he spent the majority of his life. For one, he speaks multiple regional languages including Dari, Pashtu, Hazaragi, Bilochi and Irani. He does not claim to regularly drink alcohol, have tattoos or piercings, speak with an accent that is noticeably Australian, have a public Facebook page or anything else that could possibly mark him as western. I am not satisfied that there is more than a remote possibility that the Applicant would be the target of serious harm or that his life would be threatened on account of him having lived in a Western country.
[Footnote reference omitted, emphasis added]
73.The emphasised part of [156] was said by the applicant to manifest jurisdictional error, because it contained no reference to the applicant’s manner of walking, as described by Mr Ghulam. The Minister, on the other hand, submitted that this paragraph manifested the exact reverse, an active intellectual engagement with the claim as made by the applicant. Notably, the Tribunal returned later in its reasons, at [180] – [181], to reflect on difficulties which it acknowledged that the applicant would face if returned to Afghanistan. Amongst other things, the Tribunal there stated:
The Applicant has never lived in Afghanistan although he was part of an Afghan community in Australia. His religion is commonly practised in Afghanistan. I point these matters out because although the Applicant has never lived in Afghanistan and is completely unfamiliar with that country, he is not completely unfamiliar with the culture or religious practices.
His Honour continued:
74.The applicant’s submission exhibits the vice identified in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, by particular approving reference to the Full Court’s judgement in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280. The reasons of an administrator, and thus the Tribunal, are not to be read narrowly and with an eye for error. The source of the Tribunal’s finding as to the languages spoken by the applicant is, as the Tribunal’s related footnote reference in [156] confirms, [34] of the applicant’s lengthy statutory declaration (Exhibit G1, Section 501 G-documents, G2, p 79, [34]).
75.The applicant does not claim in that declaration to speak any of these languages with a particular accent. Nor, for that matter, does he there claim to walk in a different manner to a native-born Afghani, nor even to have an apprehension about that, based on his declared association with Mr Ghulam, whom he describes as a leader in the local Afghan community. The Tribunal’s finding as to unlikelihood in the sentence which precedes the reference to the languages spoken by the applicant is significant, “unlikely that the Applicant would be identified as having spent time in a Western country as opposed from somewhere closer like Pakistan where he spent the majority of his life”. Though the Tribunal does not expressly refer to Mr Ghulam as one supporting source, the finding as to the applicant’s being more likely to be identified with having spent time in a Western country as opposed to somewhere closer like Pakistan is consistent with Mr Ghulam’s reference to the applicant speaking with a “Quetta dialect”. Quetta is where the applicant in his declaration said he had been born, lived and worked prior to coming to Australia. Thus, not only is the Tribunal’s finding as to relative likelihoods supported by the material before it but also the way that finding is expressed is inconsistent with an absence of adverting to Mr Ghulam’s statement. In any event, the absence of active intellectual engagement which might sound in jurisdictional error is with the claim as made: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, at [46]; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, at [92]. The Tribunal has addressed the claim. In so doing, it was not required to refer to each and every detail found in the material before it. To require that would render the function of the merits review undertaken by the Tribunal in relation to the myriad of cases that come before it impossible.
Turning now to grounds of appeal 1 and 2, we note that Mr Ghulam in his evidence specifically referred to the appellant’s deportment as a means of identifying the appellant as a returnee from the West, and the Tribunal did not. However, notwithstanding some reservations, we are unable to find error in the findings of the primary Judge in relation to the Tribunal’s reasons concerning the identification of the appellant as either a Pakistani person or agent, or a returnee from the West.
Ultimately, the Tribunal is the finder of fact in respect of applications before it. The Tribunal at [156] clearly considered characteristics of the appellant including his speech, accent, language, conduct, appearance and social media activity which could identify as a Western returnee, and was not persuaded that he would be so identified. Rather, the Tribunal in that paragraph accepted that the appellant was identifiable as a Pakistani person. It is plain from comparison of the content of Mr Ghulam’s statutory declaration with the Tribunal’s findings at [156] that the source of the Tribunal’s findings was primarily by reference to the evidence of Mr Ghulam, to which the Tribunal clearly had regard.
The Tribunal did not mention the appellant’s deportment. The gravamen of this aspect of the appellant’s complaint is that the failure of the Tribunal to do so was because of error on the part of the Tribunal, namely overlooking Mr Ghulam’s evidence and the related paragraph in the Statement of Facts, Issues and Contentions. However, as the primary Judge observed, the reasons of the Tribunal are not to be construed narrowly and with an eye for error. While we have reservations concerning whether the Tribunal actually understood the evidence of Mr Ghulam concerning the prospect of identification of the appellant as a returnee from a Western country because of the nature of the appellant’s posture and his walk, as the primary Judge further observed at [75], the Tribunal is not required to refer to each and every detail found in the material before it, because to so require would render the function of the merits review undertaken by the Tribunal in relation to the cases before it impossible. It is open to the Court to infer that the Tribunal did not specifically refer to Mr Ghulam’s evidence concerning the appellant’s deportment because, as a matter of fact, the Tribunal was not persuaded by that evidence or did not regard it as significant.
We take a similar view of the appellant’s submissions concerning the absence of specific reference in the Tribunal’s reasons to identification of the appellant as a Pakistani “agent” (as distinct from Pakistani “person”). As the primary Judge observed at [75], the Tribunal plainly found at [156] that there was a likelihood that the appellant would be identified in Afghanistan as a person from Pakistan. Notwithstanding Mr Ghulam’s evidence, that the Tribunal did not further refer to prospect of the appellant being identified as an “agent” from Pakistan is not surprising given that, other than this passing reference in Mr Ghulam’s statutory declaration, the appellant has identified no specific argument or evidence put by him before the Tribunal referable to the appellant being so identified, including any prospect of increased risk to the appellant by being seen as a Pakistani “agent” rather than a Pakistani “person”. In the absence of evidence, we are not persuaded by the submissions of the appellant’s Counsel that there is an implied level of threat, or that a person would be treated with greater suspicion if they were perceived to be an “agent” rather than simply a person.
We note again that the Tribunal is not required to refer to every piece of evidence before it in its deliberations.
It is clear from the reasons of the Tribunal that it actively engaged intellectually with the evidence of Mr Ghulam and related submissions of the appellant.
In our view grounds 1 and 2 are not substantiated.
Grounds of appeal 3 and 4
Relevantly before the primary Judge the appellant in his amended originating application for review of a migration decision relied on the following ground of review:
5.The Tribunal’s findings as to the evidence of Professor Freeman at CB 619 were legally unreasonable.
Particulars
(a)Professor Freeman’s evidence was to the effect that were the applicant to be removed to Afghanistan, it is likely that he would suffer stressors which would impair his functioning to the extent that he would be incapable of gaining or retaining employment and meeting the basic necessities of life.
(b) The Tribunal, at CB 919 [182] unreasonably equated the applicant’s being threatened in immigration detention with his being exposed to surging crime, violence and bombings should he be removed to Afghanistan and attempt to live in Kabul.
(c) The Tribunal acted unreasonably in preferring its own lay opinion as to the psychological effect on the applicant of crime, violence and bombings in Kabul to that of a professor of psychology.
(tracking omitted)
The evidence to which this ground related was contained in a document headed “Addendum Report” signed by Professor James Freeman dated 2 September 2020. The evidence was as follows:
1.2[The appellant] was referred for the purpose of a forensic psychological assessment in relation to an appeal of his visa cancellation. I was able to undertake the assessment on the 3 March 2019 at the Woodford Correctional Centre. I completed an additional videoconference assessment on 2 December 2019 and produced a report detailing my findings on 9 January 2020.
1.3The purpose of this report is to provide further information regarding my findings at paragraph [14.5] of my previous report. I was also provided with a country information brief regarding Afghanistan when preparing this addendum report. These reports contained in this brief reflect that:
•The security situation in Afghanistan is dangerous and there has been a spike in civilian casualties resulting from deliberate attacks against the civilian population, including against the Shi’a Muslim population (UNAMA, 2020);
•There have been violent attacks on the Shi’a religious population in Afghanistan, and these attacks have increased significantly since 2016 and include disappearances, abductions, targeted killings and suicide bombings (UNHCR, August 2018); and
•There are reports that crime and violence is surging in the capital, Kabul, and the ongoing insurgent attacks by the Taliban and other anti-government groups has reduced the government’s effectiveness in addressing these challenges (UNHCR, December 2019).
1.4.Given these reports, if [the appellant] were to be removed to Afghanistan, I consider it likely he would be exposed to social violence and war-related events. His exposure to such stressors, including violence and bombings, will have a deleterious effect on is psychological state. Such stressors would compound his existing psychological symptoms, which would in turn be likely to cause considerable distress and impairment. This could significantly interfere with his psycho-social functioning to the extent that he would be incapable of gaining or retaining employment and meeting the basic necessities of life.
1.5[The appellant’s] daughter and younger brother will remain in Australia if he is deported. Given he has been physically present in their lives in a parental capacity, this could pose risks to their welfare. Not surprisingly, the threat of such the threat of such [sic] consequences upon children are real and well documented in the scientific literature. This includes increasing children’s vulnerability to psychosocial maladjustment and psychological disorders and increasing the risk of creating disadvantaged households.
(footnotes omitted)
In the primary decision his Honour considered grounds 1, 2 and 5 of the amended application together, and commenced that consideration as follows:
34.Save for ground 3, the pleaded grounds seek to impeach evidentiary preferences made by the Tribunal in a reasoned decision…
His Honour referred to the observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 concerning challenges on the grounds of unreasonableness, irrationality or illogicality to satisfaction criteria based administrative decision-making. His Honour at [39] noted that the Tribunal had adverted at considerable length to the oral evidence given by the appellant, and to various opinions given by mental health and allied professionals in the context of sentencing or the risk of re-offending by the appellant. His Honour noted:
44.The Tribunal had the benefit of these assessments of the applicant by the following:
(a) Dr Danielle Shumack, senior clinician, forensic and clinical psychologist, of Griffith University’s “Griffith Youth Forensic Service”, in a presentencing report dated 14 November 2018.
(b) Ms Marissa Piat, a psychologist who had provided counselling to the applicant between May and November 2019. She prepared a report dated 6 September 2019 and another dated 11 December 2019.
(c) Professor James Freeman who provided a “Forensic Psychology Assessment” dated 9 January 2020 after two interviews of the applicant and related testing (and an addendum of 2 September 2020).
(d) Ms Nan Cameron, a psychotherapist who had counselled the applicant, in an undated report.
At [45], his Honour noted the comment of the Tribunal at [68] of its reasons that the report of Dr Schumack was “an independent report that was commissioned by the Court rather than by any of the parties to the criminal proceeding”.
His Honour noted at [46] that it was common ground between the various experts, and accepted by the Tribunal, that the applicant’s experiences in Pakistan had resulted in his suffering from Post-Traumatic Stress Disorder (PTSD). His Honour continued:
46.… That was so even though the Tribunal had reservations about whether one claimed contributor, an alleged homosexual rape of the applicant, had occurred. However, the Tribunal’s reasons expose a clear preference for the views expressed by Dr Shumack in relation to the risk of reoffending presented by the applicant. She assessed the applicant as presenting a “low to medium risk” of reoffending.
His Honour noted that, reading the reasons of the Tribunal as a whole, it was plain that one reason for the Tribunal’s preference for the evidence of Dr Shumack over that of other experts was the adverse view taken by the Tribunal of the applicant’s credibility concerning the versions of events he had given to Professor Freeman and Ms Piat. At [50] his Honour also noted another reason for the Tribunal’s preference in respect of Dr Shumack’s evidence was the Tribunal’s view that Dr Shumack had access to more material, including the criminal trial transcript, than had either Professor Freeman or Ms Piat. Before his Honour the appellant submitted that this view of the Tribunal was erroneous. His Honour further noted that neither the transcript of the appellant’s trial nor the judgment of the Court of Appeal in his appeal against conviction were before the Tribunal, however his Honour also observed that the appellant himself could have adduced that material for submission to the Tribunal if he had so chosen.
His Honour further noted at [57] that the Tribunal did not accept views expressed by Ms Piat which had informed Professor Freeman in preparing his report, and that the Tribunal had explained its reasons closely and meticulously.
His Honour continued:
58.The Tribunal was under no obligation to accept the views of Professor Freeman or those expressed by Ms Piat. Neither was it under any obligation to accept the views expressed by Dr Shumack. It is just that Dr Shumack’s view as to the existence of a risk of reoffending, albeit low to medium, better accorded with the Tribunal’s assessment of the applicant and of the nature of his offending conduct. For all their particularity, none of the grounds under present consideration amount to anything more than a solicitation for the Court to undertake, under the guise of judicial review, merits review. None of the confined bases highlighted in the passage from BZD17, quoted above, upon which it is open to a court in judicial review to quash for jurisdictional error an administrative decision based on factual evaluation, is made out.
59.One of the cases cited with approval, and by way of example, in this extract from BZD17 is SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113. In that case and after a discussion of authority and academic commentary, I observed, at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”. In that case, the false factual premise was evident in the material before the Tribunal. That is not this case. Further, and at the risk of repetition, the Tribunal’s reasons for discounting Professor Freeman’s views, and those of Ms Piat for that matter, were multi-factorial.
60.For these reasons, grounds 1, 2 and 5 should be dismissed.
Returning to grounds of appeal 3 and 4, we are not persuaded that his Honour failed as a matter of substance to engage with ground of review 5. We have formed this view for the following reasons.
First, his Honour’s approach to considering ground of review 5 with grounds of review 1 and 2 at first instance was entirely understandable. We do not consider his Honour erred in this approach. Relevantly grounds of review 1 and 2 were:
1.The Tribunal failed to lawfully consider the evidence of psychologist Marissa Piat and of Professor James Freeman.
…
2.It was not open and therefore legally unreasonable for the Tribunal to find that,
(a)The applicant’s response to questions asked of him by the Tribunal indicated that he had had no interest in undergoing specific sex offender treatment (reasons for decision at [85]-[86]).
(b)The applicant had not made the positive progress spoken of by Ms Piat, psychologist (reasons for decision at [89]).
(particulars omitted)
That grounds of review 1, 2 and 5 were intertwined is clear in circumstances where, if his Honour was satisfied that the Tribunal had considered the evidence of Professor Freeman and Ms Piat, the onus was then on the appellant to satisfy his Honour that the Tribunal’s findings in respect of their evidence were legally unreasonable. His Honour was fully cognisant of the appellant’s claims of alleged unreasonableness of the Tribunal’s reasons concerning the evidence of Professor Freeman and Ms Piat. Plainly, his Honour was not persuaded of this.
Second, it is clear that the Tribunal specifically had regard to Professor Freeman’s Addendum Report.
Professor Freeman explained in the Addendum Report that he had prepared the Addendum to supplement para 14.5 of his earlier report dated 9 January 2020. Relevantly, para 14.5 of the 9 January 2020 report stated:
14.5In regards to visa cancellation, [the appellant’s] only emotional support (e.g., wife and mother) and daughter reside in Australia. The applicant also stated enjoying a parental role for his younger brother e.g., “My brother calls me father.” Taken together, he presented with a strong familial bond and likely places considerable emotional importance upon such dynamics. In contrast, he has never lived in Afghanistan and has no support network (e.g., family members or friends) in the country. It can be considered reasonably probable that he will be at risk of further persecution (and/or physical harm) if he is returned to Afghanistan. More psychologically probable is that his PTSD symptomatology will impair his capacity to assimilate into a foreign culture and effectively manage emotional stressors associated with separation from his family members. This is clearly evidenced in his ongoing suicide ideation e.g., “To be honest with you, I’ll kill myself before I go back. It’s better to kill myself then get deported. To lose your family is pretty tough.” At the very least, he presents as an individual who is psychologically ill-equipped to respond to such demands and faces significant hardship.
The Tribunal accepted that the appellant had PTSD symptoms, and further accepted the evidence of Professor Freeman that those symptoms “come and go” (at [47]). The Tribunal further observed:
110.Professor Freeman opined that the Applicant did not require sexual offender counselling (however I note his understanding that the Applicant had already been treated in that regard by Ms Piat), and he emphasised that the Applicant’s risks related primarily to him receiving adequate treatment for his psychological disorders, particularly PTSD. He said such treatment should be ongoing and without it he may be at risk of engaging in further impaired decision-making, although not necessarily in regard to sexual re-offending. He explained this further in the hearing, saying that if the Applicant manages his underlying psychological conditions he is less likely to misuse substances and make bad choices like associating with negative peers. In his report he said that the Applicant had protective factors including familial support, stable accommodation, employment prospects, the maturation process, parole supervision and willingness to engage in ongoing treatment.
(footnotes omitted)
In addition to its acceptance of this aspect of Professor Freeman’s evidence, we note the following analysis by the Tribunal of Professor Freeman’s Addendum Report:
182.The Applicant tends to suffer PTSD symptoms in times of adversity. I accept that removal to Afghanistan is likely to bring on such symptoms. The Applicant will have the same access to mental health services as other Afghani citizens. Those services are very poor, and certainly below the level available in Australia. It is most unlikely that he would be able to access counselling services. However, both Ms Piat and Ms Cameron in their reports said that they had taught the Applicant some skills and strategies to deal with and manage his symptoms. It appears that he has some ability to manage his psychological symptoms. He does not currently rely on medication for his psychological conditions. Professor Freeman said that if the Applicant is exposed to stressors such as violence and bombings it could aggravate his symptoms to the point of him not being able to maintain employment and meet the basic necessities of life. Much of the Applicant’s work experience involves manual labour. It is not apparent how the symptoms reported by the Applicant would impact on his ability to do basic physical work. Further, the Applicant was exposed to traumatic events targeted at him in immigration detention – he was bullied and threatened because his family were sending him money – but there is no evidence that his symptoms became debilitating. I am satisfied that the Applicant could suffer some emotional and psychological hardship in Afghanistan, but I am not satisfied that this would prevent him from maintaining employment and meeting basic living standards.
(emphasis added, footnotes omitted)
Ultimately, the Tribunal was not persuaded as a fact that any symptoms of the appellant would impact on his ability to do manual labour, and that he had been taught skills and strategies to deal with and manage his symptoms. Such findings were open to the Tribunal.
Third, as his Honour correctly observed, citing SZMDS, if probative evidence can give rise to different processes of reasoning, and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be unreasonable merely because one conclusion has been preferred to another possible conclusion. The Tribunal considered the evidence of Professor Freeman, but, for reasons it gave it, preferred the evidence of Dr Shumack. Like his Honour, we consider that that evidentiary preference was open to the Tribunal.
Finally, and in any event, we note that the Tribunal had regard to the extent of any impediments a non-citizen may face if removed from Australia to their home country, and at [178]-[182] described in detail possible impediments the appellant would face if he removed to Afghanistan. At [184] the Tribunal specifically found that this consideration weighed heavily in favour of revocation of the reviewable decision. As the High Court explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 445 [45]-[46] and in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2-4], a breach of a condition in administrative decision-making will only result in jurisdictional error if it involves:
…a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
(MZAPC at [2])
In our view, even if the Tribunal had failed to have regard to Professor Freeman’s evidence in the Addendum Report concerning the PTSD of the appellant (and we are not persuaded that it did so), we are unable to identify how such failure on the part of the Tribunal could have resulted in a different outcome, given the already heavy weight in favour of revocation of the visa cancellation the Tribunal had attributed in its deliberations to the impediments the appellant was likely to face on removal to Afghanistan.
In our view grounds 3 and 4 are not substantiated.
CONCLUSION
It is common knowledge that, since the Tribunal decision on 23 September 2020, the political and security landscape in Afghanistan has substantially deteriorated. The Tribunal itself anticipated at [163]-[165] that the appellant might make an application for a protection visa. It is not for this Court to otherwise comment on this.
The appropriate order is to dismiss the appeal. Costs should follow the event.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, Collier and Bromwich. Associate:
Dated: 28 November 2022
0
12
1