BSU20 v Minister for Immigration

[2020] FCCA 2718

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSU20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2718

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa – whether Authority failed to consider claims and evidence before it – findings open to the Authority – no jurisdictional error established on the part of the Authority – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 46A, 473CA, 473CB, 473DD.

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 1472.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: BSU20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 186 of 2020

Judgment of: Judge Egan

Hearing date: 30 September 2020

Date of Last Submission: 30 September 2020

Delivered at: Brisbane

Delivered on: 1 October 2020

REPRESENTATION

Counsel for the Applicant: Mr J. Stoller

Solicitors for the Applicant: Lincoln Lawyers

Solicitors for the Respondent: Ms C. Allen of Sparke Helmore

ORDERS

1. The Amended Application for Review filed on 7 July 2020 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 186 of 2020

BSU20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan who arrived in Australia on 10 July 2013 as an unauthorised maritime arrival.

2. On 4 January 2017, after the Minister had lifted the bar pursuant to the provisions of s. 46A of the Migration Act 1958 (Cth) (‘the Act’), the applicant applied for a Safe Haven Enterprise Visa (‘SHEV’).

3. On 8 January 2020, a delegate to the Minister refused to grant the SHEV application on the basis that Australia did not owe any protection obligations to the applicant. The matter was then referred to the Immigration Assessment Authority (‘the Authority’) for review pursuant to the provisions of s. 473CA of the Act.

4. On 3 February 2020, the applicant provided submissions and further documentation to the Authority. [1] On 17 February 2020, the Authority affirmed the decision of the delegate not to grant the visa to the applicant.

   [1]        Court Book (CB) pages 229 – 238.

5. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Act. At [4] – [6] inclusive of its reasons, the Authority recorded that it had considered further claims and submissions made to the Authority by email on 3 February 2020, and that it had been satisfied that there were exceptional circumstances justifying its consideration of new information.

6. At [8] – [9] inclusive of its reasons, the Authority accurately set out the respective criteria for the purpose of assessing whether or not a person was a refugee, and also what relevantly constituted a well-founded fear of persecution, under ss. 5H(1) and 5J of the Act.

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

   ·“he is a Pashtun Turi Shia from [A] village near Parachinar in Kurram Agency.

   ·he is a member of the Anjuman-e-Hussania

   ·over about a decade a number of his relatives were killed or injured by the Taliban or unknown persons.

   ·in late March 2013, a couple of months after he returned to upper Kurram after having spent five years working in the UAE, he was driving his taxi through a Sunni village when a man struck the rear of his car with his walking stick and fell. After initially stopping, he quickly drove off as locals angrily pursued the taxi.

   ·four days later his friend, who had been one of the passengers in the taxi, told him he had been visited by the Taliban because the man who had fallen was Taliban. His friend had been intimidated into giving the Taliban his details.

   ·he stayed within his village and only took taxi jobs within that area until he was able to leave Pakistan via Peshawar and Lahore a month or so later.

   ·he stayed within his village and only took taxi jobs within that area until he was able to leave Pakistan via Peshawar and Lahore a month or so later.”

8. At the hearing before this Court, the applicant relied upon an Amended Application for Review filed on 7 July 2020, the sole ground for such application being as follows:

   “The IAA made the following jurisdictional errors, by reason of which the migration decision under review is not a ‘privative clause decision’ within the meaning of s 474(2) of the Migration Act 1958 (the Act):

   1. The IAA constructively failed to exercise its jurisdiction, by failing to:

   1.1 Consider a submission of substance put by the applicant in support of his contention that he had a well-founded fear of persecution in Pakistan; and/or

   1.2 have regard to important evidence, put forward by the applicant in support of his contention that he had a well-founded fear of persecution in Pakistan,

   PARTICULARS

   a) In his migration agent’s 20 November 2019 submissions to the Minister’s delegate, and in his 11 October 2019 statement in support of his application, the applicant contended that the security situation in Kurram agency was volatile and at risk of worsening in the reasonably foreseeable future, thus exposing him to a real risk of harm as a Turi Shia:

   (i) In the 20 November 2019 submissions (at CB 142), the applicant’s agent submitted, while noting reports of a decrease in persecution in the relevant area, that the area:

   … is widely-reported not yet to be secure and independent observers argue that it is too early to regard the area as generally safe.

   (ii) In the 20 November 2019 submission (at CB 142), the applicant’s agent submitted:

   The whole of the information above suggests that sectarian violence (along with other motivated violence) has peaks and lows of activity across Pakistan depending on the complex interaction between the extremist groups themselves, the Pakistan Government and armed forces, political influences and religious tensions.

   (iii) In the 20 November 2019 submission (at CB 143), the applicant’s agent submitted:

   Reporting on the security situation in Pakistan generally, DFAT notes that the security situation is complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Afghanistan.

   (iv) In the applicant’s migration agent’s 20 November 2019 submissions (at CB 140), the applicant submitted that information from the DFAT Country Information Report: Pakistan, 20 February 2019 was relevant, and quoted paragraph 3.26 of that report, which provided:

   DFAT notes a trend of decreased reports of attacks against Turks in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend in likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.

   (emphasis added)

   (v) In the applicant’s 11 October 2019 statement, he submitted (at CB 157) that:

   In the neighbouring Afghanistan, 80% of the country has been occupied by Taliban, and this will get worse with the US Leaving. The fact that the Taliban is retaking Afghanistan will make them a major threat to Parachinar across the border. It will also give confidence and boost to the extremists minded people in Pakistan, to make Jihad as they have been, and will be encouraged to increase their attacks.

   (vi) In the applicant’s 11 October 2019 statement, the applicant submitted (at CB 157) that:

   The security situation of Parachinar is very fragile. Anything can happen anytime which can fuel the sectarian violence against Turi Shia.

   b) That the security situation was volatile and at risk of worsening in the reasonably foreseeable future was a submission of substance that the IAA was required to address to properly exercise its jurisdiction to review the Minister's delegate's decision.

   c) The IAA failed to consider this submission, reasoning that because the security situation had improved in the relevant area in the recent past, the applicant was not at risk of harm, without giving any (or any proper) consideration to whether - as claimed- the security situation was volatile and might again deteriorate and thus expose the applicant to real risk of persecution in the reasonably foreseeable future.

   d) In his migration agent's 20 November 2019 submissions, the applicant relied upon evidence of the circumstances in Kurram agency (which is located within the 'KPK' province, in the former 'FATA'), in support of his contention that he had a well-founded fear of persecution as a Turi Shia, despite recent improvements in the security situation in Kurram Agency. That evidence included:

   The Commonwealths Department of Foreign Affairs and Trade's Smart Traveller website, updated 7 August 2019 and current as at 20 November 2019, which the applicant submitted ' contained the following advice for the entire KPK [i.e. Khyber-Pakhtunkhwa] province with the exception of the Chitral city district:

   ·DO NOT TRAVEL – due to the extremely dangerous security environment and ongoing military operations in the former federally Administered Tribunal Areas (FATA).

   ·There is a high threat of kidnapping across the whole of Pakistan but particularly in … Khyber-Pakhtunkhwa.

   ·The security situation in Pakistan could deteriorate with little warning. Terrorist and sectarian attacks can occur anywhere and at any time in Pakistan.’

   (ii) The US State Department’s travel advice, including, relevantly, those parts of the travel advice which provided:

   Do Not Travel to:

   ·Balochistan province and Khyber Pakhtunkhwa (KPK) province, including the … FATA, due to terrorism and kidnapping.

   e) The IAA failed to have regard to this evidence in making its decision, instead relying only on parts of country information (predominantly DFAT's 20 February 2019 Country Information Report) which predated this evidence, in purporting to consider the applicant's claims as to the circumstances in Kurram agency.”

Ground 1

1. Ground 1 of the Amended Application for Review is based upon two claims – the first claim being that the Authority failed to properly consider claims and evidence advanced on behalf of the applicant as to the risks allegedly associated with his being returned to Kurram Agency in Pakistan, and secondly, the claim that the Authority had failed to have regard to DFAT and US Government travel advice alerts, the occurrence of a terrorist attack in a neighbouring area, and a reference in paragraph 3.26 of a 20 February 2019 DFAT Country Information Report as to the level of risk faced by Turi Shias in Kurram Agency.

2. Paragraph 3.26 of the 20 February 2019 DFAT Report provided as follows: [2]

   “[3.26] DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.”

   For the purposes of the DFAT report, the words “moderate risk” were defined as follows:

   [2]        Annexure HS-6 to the Affidavit of Hevi Shikho filed on 2 September 2020 at p. 27. 

   “DFAT is aware of sufficient incidents to suggest a pattern of behaviour.”

3. The DFAT Smart Traveller alert, as set out in the applicant’s lawyers submission sent by email to the Department on 20 November 2019, was as follows: [3]

   “DFAT's Smartraveller page, however, updated on 7 August 2019 and marked current as at 20 November 2019, provides the following advice for the entire KPK province in Pakistan, with the exception of the Chitral city district

   ·DO NOT TRAVEL- due to the extremely dangerous security environment and ongoing military operations in the former federally Administered Tribal Areas (FATA).

   · There is a high threat of kidnapping across the whole of Pakistan but particularly in Karachi, Balochistan and Khyber-Pakhtunkhwa.

   ·The security situation in Pakistan could deteriorate with little warning. Terrorist and sectarian attacks can occur anywhere and at any time in Pakistan.”

   [3]        CB p. 141.

   (footnote omitted)

4. The US State Department Traveller Alert, as set out in the same applicant’s lawyer submission was as follows: [4]

   [4]        CB pp. 141 – 142.

   “The US State Department has issued a similar warning:

   Reconsider travel to Pakistan due to terrorism. Some areas have increased risk. Please read the entire Travel Advisory.

   Do Not Travel to:

   ·Balochistan province and Khyber Pakhtunkhwa (KPK) province, including the former Federally Administered Tribal Areas (FATAL due to terrorism and kidnapping.

   ·The Azad Kashmir area due to terrorism and the potential for armed conflict. Terrorist groups continue plotting possible attacks in Pakistan. Terrorists may attack with little or no warning, targeting transportation hubs, markets, shopping mails, military installations, airports, universities, tourist locations, schools, hospitals, places of worship, and government facilities. Terrorists have targeted U.S. diplomats and diplomatic facilities in the past, and information suggests they continue to do so.”

5. On the question as to whether the Authority failed to consider claims and evidence before it, as firstly claimed by the applicant, it was submitted that the Authority had ignored;

   a)The travel advice before it;

   b)The contents of paragraph 3.26 of the 20 February 2019 DFAT Report which noted that Shia Turis in Kurram Agency still faced a moderate risk of sectarian violence from militant groups because of their faith;

   c)A report which recorded that 35 people had died as a result of a terrorist attack in a neighbouring area in November 2018.

6. As to the 20 February 2019 DFAT Report, the Authority made footnote references to such Report on at least ten (10) occasions in its reasons. [5] The Authority was alive to the fact that the Kurram Agency region had had a long history of sectarian tension and violence. It recorded that fact in its reasons. The Authority properly approached its task of assessing the likelihood of risk of harm to the applicant if returned to the Kurram Agency by considering all of the applicant’s claims in the context of country information which it had before it. In that regard, it was conceded by counsel on behalf of the applicant that there was no evidence of relevant sectarian incidents having occurred in Kurram Agency during 2019. It was also conceded that had there been such evidence, the applicant would have provided country information to that effect to the delegate before the handing down of the delegate’s decision.

   [5]        See footnotes [1], [3], [6], [8], [10], [12], [13], [14], [15] and [16] to the Authority’s reasons.

7. At [21] of its reasons, the Authority approached its task of recording its considerations as follows:

   “[21] Kurram has a long history of sectarian tension and violence. However, its nature intensified from around 2001 when Afghan Taliban and refugees escaped across the Pakistan border. Since 2004, the Pakistani Army has conducted military operations in the former Federally Administered Tribal Areas (FATA) in which Kurram is located. However, between 2008 and 2014 Turis faced significant violence as groups such as the Tehreek-e-Taliban Pakistan (TTP or Pakistani Taliban) and other Sunni extremists targeted them for their Shia faith. During this period approximately 1,500 people were killed, usually in mass attacks on public places. Since 2014 the Pakistan armed forces have launched several security operations, including Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the National Action Plan (NAP). In 2018, the Government announced its second National Security Policy, and the Ministry of Interior was reportedly preparing NAP-2. These operations have disrupted the activities of militant groups, limited their access to former safe havens and resulted in a significant decrease in the number and severity of attacks on Turis. There are also tighter Afghanistan-Pakistan border controls and the military has implemented a twenty to thirty square kilometre area red zone for Parachinar, and a second, smaller red zone inside the outer red zone, in which markets and schools are located. While these initiatives have improved the security situation in Kurram Agency they have also restricted freedom of movement and limited the community's access to services and trade opportunities. While there were three attacks, in several markets and an imambargah, targeting Turis in Parachinar during the first six months of 2017, there were decreased reports of attacks against Turis in 2018. Although the applicant has provided a media article from October 2019 that refers to local tribes catching a group of extremists near Parachinar and handing them over to the authorities there is little evidence of attacks on Turis in the last couple of years. In the context of the improved security environment in Kurram authorities have focused on improving living conditions and reconciling the sectarian communities.”

8. At [22] – [27] of its reasons, the Authority considered the past targeting of Turi Shias for sectarian reasons. It could not be said that the Authority failed to appreciate the seriousness of past conflict and violence within Kurram Agency. The Authority properly recognised that sectarian or militant attacks by the Taliban, or other Sunni extremists, could continue to occur in Kurram Agency, but it did so in the context of its consideration of country information as a whole which suggested that there had been a dramatic improvement in the security situation throughout Kurram Agency since an incident in January 2018. The Authority’s analysis, in that regard, was reflected in what it said at [28] – [29] of its reasons as follows:

   “[28] I accept that the applicant is a Pashtun Turi Shia from upper Kurram, that he had a short lived and low level association with the Anjuman-e-Hussania, and that a number of relatives have been killed or injured in sectarian or militant violence over about a decade. As a consequence I have carefully considered whether the applicant has a well-founded fear of persecution on account of these findings. Unlike the delegate, I am not satisfied there is a real chance the applicant will suffer any harm from the Taliban or other anti-Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if he were to return to Kurram Agency. The overwhelming weight of information before me evidences that in the six and half years the applicant has been absent from upper Kurram the security and sectarian situation there has improved dramatically. Apart from a general claim that they were continuously targeted because of the March 2013 incident that I haven't accepted, the applicant has not otherwise claimed that his wife and child or siblings who live in upper Kurram have suffered any adverse treatment from the Taliban or other anti-Shia Sunni groups or anyone else in the lengthy period he has been absent from Pakistan. The information before me indicates there was one attack in Kurram Agency in January 2018 in which a Turi family died as a result of a landmine by a road and no incidents in 2019 or in 2020 to date. While sporadic sectarian or militant attacks by the Taliban or other Sunni extremists may continue to occur in Kurram Agency, having regard to the nature and frequency of militant and sectarian incidents in Kurram Agency I am not satisfied that they rise to the level of real chance.

   [29] I consider that the applicant will very likely return to [A] village in upper Kurram, an area in which Shia comprise approximately 80% of the population, with which he is familiar having previously lived there for over two decades and where his wife and child and some siblings continue to reside. In the 2017 SHEV application he referred generally to attacks on Shia places of worship in the area, but he did not claim that he personally or other family members had been prevented from practising their religion prior to his departure. At the 2019 SHEV interview he said he attended an imambargah in his own village when there were processions but did not refer to suffering any difficulties doing so. The country information before me does not refer to attacks on imambargahs in Kurram since the incident in 2017 referred to above. I am not satisfied the applicant would be impeded from practising his religion. The applicant mentioned at the SHEV interview that he continues to own land in upper Kurram that is currently rented out and provides his family with some income. In addition, he has a number of adult siblings living in the area, including one brother who is a local leader. I find it highly likely that on his return he will recommence farming his land, in preference to taxi driving which he previously only did for a few months in Pakistan. However, even if he does also return to taxi driving to supplement his income, I am not satisfied there is a real chance he will suffer any harm doing so given the much improved security situation.”

1. The lack of any reference in its reasons to Shia Turis still facing a ‘moderate risk’ of sectarian violence in Kurram Agency, as set out in paragraph 3.26 of the DFAT Report, was submitted as confirming that the Authority had failed to consider a clearly articulated claim. It was submitted on behalf of the applicant that the Authority had fallen into jurisdictional error by failing to address the nature of the moderate risk referred to in the DFAT Report before finding that there was not a real chance that the applicant would suffer harm if he was to return to Kurram Agency. Such submission was similarly made in relation to the Authority’s lack of reference in its reasons to the travel advice information which it had before it, and to the violence which had earlier occurred in a neighbouring agency in November 2018. [6] There is no merit to such claims.

   [6]        Paragraph 41 of applicant’s submissions filed on 2 September 2020.

2. The Authority had before it country information which indicated that though there was a higher risk to Turi Shias of sectarian violence in Kurram Agency than elsewhere in Pakistan, there had nevertheless been a dramatic improvement in the security situation throughout Kurram Agency which had resulted in no incident of significance having occurred between January 2018 [7] up to the time of the handing down by the Authority of its review decision in February 2020. As to the latter, it was acknowledged by counsel for the applicant that had there been any decline in the security situation up until the date of the handing down by the Authority of its decision, the applicant could have provided the Authority with country information to that effect pursuant to the provisions of s. 473DD(a) and (b)(i) of the Act, which sections relevantly provided as follows:

   “Section 473DD    Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii) is credible personal information which was not previously known, and, had it been known, may have affected the consideration of the referred applicant’s claims.”

   [7]        Roadside land-mine roadside blast incident – see footnote [9] and paragraph [28] of reasons of

   the Authority at CB 249.

3. Having considered all of the country information before it, and having found that there was not a real chance that the applicant would suffer any harm if he was to return to Kurram Agency at any time in the reasonably foreseeable future, it ought to be inferred that the Authority had taken into account the moderate risk assessment set out in the 20 February 2019 DFAT Report, the adverse travel advices, and the fact that a violent incident had occurred elsewhere in a neighbouring agency in late 2018. In that regard, it is not without significance that though the 20 February 2019 DFAT Report was the most recent country information before the Authority, such report was nonetheless silent as to the security situation which pertained for the whole year subsequent to the date of its release and to the date of the handing down by the Authority of its decision. The absence of any recorded security incident of significance having occurred in Kurram Agency between January 2018 and February 2020 naturally renders the ‘moderate risk’ assessment in paragraph 3.26 of the DFAT report of less significance. It ought to be inferred that as at the date of the handing down of the Authority’s decision in February 2020, there was an appreciation by the Authority that no such security incident of significance had occurred over a period of over two (2) years.

4. The applicant has taken issue with the decision of the Authority. To the extent that the applicant takes issue with the factual findings of the Tribunal, an attempt has been made for this Court to undertake an impermissible merits review of the decision of the Tribunal. As was said by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272:

   “The proper role of a reviewing court

   The Full Court recognised, on the face of the delegate's assessment of the first respondent's claim, "that the delegate correctly directed herself as to the test which she had to apply" (33). Later in its reasons the Full Court noted (34):

   "Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find that there was if there was a real chance of persecution. The expression 'real chance of persecution' is used in the reasons. We refer to par 4.6(4) as an example. Paragraph 12 ... provides another. The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written."

   In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.

   When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (36). The Court continued (37): "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 (38). 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. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (39):

   "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."”        

5. On a fair reading of the reasons of the Authority, the Authority has weighed up all of the evidence before it, and made findings which were adverse to the applicant. There was evidence before the Authority which entitled the Authority to arrive at the decision it made. The Authority was not required to refer to every piece of evidence, or every claim made by the applicant, when handing down its written decision. An inference should not readily be drawn that a document identified by a decision maker in their reasons had not been the subject of due consideration. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46]-[47]:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

6. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

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

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

   …

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

7. The submission that the Authority failed to have regard to the submission that the security situation in the applicant’s home area was volatile and liable to deteriorate is without merit. The Authority at [28] countenanced that sporadic sectarian or militant attacks by the Taliban or other Sunni extremists could continue to occur in the future in Kurram Agency. Having considered the prospect of that occurring, the Authority was nevertheless unsatisfied that there was a real chance of harm in the reasonably foreseeable future.

8. The Court was referred to a decision of His Honour Judge Driver in CEO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 1472 at [53] – [54]. His Honour was there dealing with a claim that the Authority had failed to properly exercise its jurisdiction in that it had failed to specifically refer to, and consider, the words ‘moderate risk’ (as used in the same 20 February 2019 DFAT Report at paragraph 3.26) in its reasons. His Honour, at [54] of his reasons, held that the words ‘moderate risk’, so defined in the DFAT Report to mean ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour’, gave to the risk of harm ‘a systematic or targeted quality.’ His Honour found that the finding of the Authority that the risk of harm was remote, without explaining how and why the Authority had ‘departed’ from the assessment of moderate risk as set out in that DFAT Report, constituted jurisdictional error.

9. The factual scenario before His Honour Judge Driver was distinguishable from the facts of the present matter. The Authority in CEO19 handed down its decision on 22 May 2019 – some three (3) months after the 20 February 2020 DFAT Report was released. The Authority in this matter handed down its decision after the lapse of a further nine (9) months during which no security incident had occurred in Kurram Agency. Irrespective of whether the Authority in CEO19 was, or was not, alive to the fact that the most recent security event of significance in Kurram Agency before the release of the 20 February 2019 DFAT Report was more than a year earlier in January 2018, such does not alter the significance of the fact that as at the date of the handing down of the Authority’s decision in this matter on 17 February 2020, a period of more than 2 years had relevantly passed without the recording of any such incident. The scenario faced by His Honour in CEO19 was different to that faced by this Court due to the effluxion of time.   

10. In the present matter, the Authority made it clear that it had carefully considered all of the information before it. That evidence established that for over a two (2) year period, there had relevantly been no security incident of note within Kurram Agency involving the persecution of Turi Shias. Even if the reference in paragraph 3.26 of the 20 February 2019 DFAT Report to the words moderate risk did suggest a ‘pattern of behaviour’ which had a systematic element to it, such behaviour was past behaviour, which, on the evidence before the Authority in this matter, had not been of a quality which was either systematic or targeted over a long period of time. In such circumstances, it was open for the Authority to find as it did.

11. The decision of the Authority could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

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

    …

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

12. On the question of the issue of the adverse travel advices, it ought to be noted that such advices were relevantly directed to Australian and USA citizens as advisories, and were not directed to citizens of Pakistan returning to their home areas. The distinction is obvious.

13. The applicant has failed to establish jurisdictional error on the part of the Authority.

14. The Amended Application for Review is without merit and is dismissed.

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

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 1 October 2020