BTW15 v Minister for Immigration
[2018] FCCA 2072
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTW15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2072 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal affirming a decision not to grant the Applicant a protection visa – whether Tribunal failed to perform its statutory task, failed to have regard to a relevant consideration, misunderstood the law, failed to afford a fair hearing or erred in respect of its credibility finding in a manner constituting jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 91R |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 |
| Applicant: | BTW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2417 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 2 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hume |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 7 August 2015.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 21 March 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2417 of 2015
| BTW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 7 August 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Afghanistan, arrived on Christmas Island in July 2012. He applied for a protection visa in November 2012.
In a statutory declaration dated 23 November 2012 the Applicant claimed to be a 19 year old Hazara Shia Muslim who had lived in Kabul his entire life. He claimed to fear harm because of his religion, his ethnicity and as a failed asylum seeker.
The Applicant also claimed that before leaving Afghanistan he had worked in his father’s real estate business in Kabul. He claimed that in about May 2012 his father, who had refused to help the Taliban rent an apartment, had been abducted and was believed to have been killed and that his mother then made arrangements for him to leave Afghanistan. He claimed to fear he would be harmed because he had worked in the real estate business and would not help the Taliban rent the building they wanted.
The Applicant provided a copy of the front and back pages of what was said to be his Afghan identity card (his taskera) in support of his protection visa application.
The Applicant attended an interview with a delegate of the First Respondent in June 2013. In March 2014 the delegate refused to grant the Applicant a protection visa. In her reasons for decision the delegate recorded that in his initial interview, entry interview and departmental interview, the Applicant had consistently claimed that his father had operated a real estate business in Kabul and had been kidnapped and had not returned. Despite finding that the information the Applicant had given about the identity of the alleged kidnappers had changed in his interviews and expressing reservations relating to other details of his claims, the delegate accepted, based on country information, that it was plausible that the Applicant’s father was kidnapped by unknown people who may or may not have been the Taliban. However, the delegate concluded that even if it were to be accepted that the Applicant’s father was kidnapped by the Taliban, she was not satisfied that the Applicant had a profile that would cause him to be targeted by the Taliban in Kabul due to his father’s kidnapping or for any other reason. Nor did the delegate accept that the Applicant met the criteria for a protection visa on any other basis.
Tribunal Review
The Applicant sought review by the Tribunal. On 31 July 2015 his representative provided a detailed pre-hearing written submission (the July 2015 submission) in which it was claimed that the Applicant feared harm on the basis of his Shia religion and Hazara ethnicity and/or as a member of the particular social group of failed Shia Hazara asylum seekers. The submission discussed country information in relation to the situation in Afghanistan generally and Kabul in particular (including in relation to Islamic State activities), and also particular social group, relocation and complementary protection issues. I note that while the submission described Islamic State as IS, the Tribunal reasons refer to IS. It is not is dispute for the purpose of these proceedings that these are references to the same entity. For convenience future references are to IS.
This submission did not refer to or make any claim on the basis of the Applicant’s involvement in a real estate business or the kidnapping of a family member. Instead, the submission annexed a statutory declaration sworn by the Applicant on 31 July 2015 (the July 2015 statutory declaration) in which he declared that he was 28 years old and that in his application and first statutory declaration he had made “certain representations regarding [his] circumstances in Afghanistan which were untrue”.
At paragraphs 3 to 4 of the July 2015 statutory declaration he explained:
Prior to my arrival in Australia, my brother [F] and I were told by friends that if we disclosed our relationship with our brother [A], this would cause problems for our family. When [A] arrived in Australia in 2001, he did not disclose the true nature of our family composition.
I was afraid that if I told the truth, my PV would be refused and my brothers and I would be returned to Afghanistan. I deeply regret providing this false information, which I provided due to a fear of being returned to Afghanistan.
The Applicant also disclosed that the taskera he had provided to the Department was a “fraudulent document” which misdescribed his age as 19. He claimed that he did not have an Afghan identity document. He disclosed a family composition, including names, ages and whereabouts, which differed significantly from that claimed in his protection visa application.
The Applicant stated that his father came to Australia in May 2013 and held a temporary safe haven visa. He revealed that his mother had died in about 2011 of natural causes and that he had six siblings, four of whom were in Australia. He described their visa status. In contrast to his original claim that he had always lived in Kabul, the Applicant described various other places he claimed he had lived (including in Peshawar, Pakistan) before returning to Kabul in 2009.
In this statutory declaration the Applicant also stated that it was one of his brothers (referred to as “S”) who had operated the real estate business in which he had worked part time in Kabul. He claimed that S had refused to lease a property to the Taliban in about May 2012 and that S had been threatened and had then closed the business. He claimed that men from the Taliban had threatened to kill S and had told him they were watching them, so they should not go to the police. S was said to have made arrangements for the Applicant to flee Afghanistan the next month. S came to Australia in 2013 with his father and a sister.
The Applicant stated that he had travelled to Australia with another brother (“F”), who was awaiting a decision on his protection visa application. He also explained that his brother (“A”), who came to Australia in 2001, had been granted a protection visa in 2004 and was an Australian citizen.
The Applicant attended a Tribunal hearing on 3 August 2015. A transcript of the hearing is in evidence.
The Tribunal Decision
In its reasons for decision the Tribunal referred to the material before it, including the July 2015 submission and July 2015 statutory declaration. It summarised the Applicant’s claims as made in connection with his protection visa application and in his first statutory declaration (including the claims that he had lived in Kabul all his life, that as a Hazara Shia he was discriminated against on a daily basis and that his father was abducted by the Taliban). The Tribunal also recorded that in his July 2015 statutory declaration the Applicant had claimed that it was his brother S who owned the real estate agency and was threatened by the Taliban.
Under the heading “Credibility of key claims” the Tribunal considered the credibility of the claims of the Applicant based on past events. The Tribunal found that the Applicant was not a credible witness having regard to what it described as his “highly inconsistent evidence on matters critical to his claims” and also the fact that the Applicant had submitted a taskera which he had later disclosed was a fraudulent document. The Tribunal stated that it had considered the Applicant’s explanations, but did not consider the reasons given by the Applicant for providing inconsistent evidence and for being untruthful were satisfactory explanations.
Having regard to credibility concerns the Tribunal did not accept that the Applicant had ever lived outside Kabul or that the Taliban or anyone else had ever threatened any of his family members or himself in respect of renting out an apartment or for any other reason. Nor did it accept that his father was kidnapped or the Applicant’s claims about having been watched. The Tribunal did not accept that the Applicant and any of his family members were or are of adverse interest to the Taliban or to anyone else.
The Tribunal considered the Applicant’s “Hazara Shia claims” which it described as follows (at paragraph 31):
I have considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation. I have considered whether the applicant has a well-founded fear of persecution in (sic) if he returns to Afghanistan on the basis of the general security situation in Afghanistan and the situation for Hazara Shias generally in Kabul. I have also considered the associated imputed political opinion pro government and anti-Taliban arising from his race and religion. The applicant has claimed that the Hazara Shia face persecution and significant harm at the hands of the Taliban and ISIS.
The Tribunal stated that it gave “considerable weight” to reports of the Department of Foreign Affairs and Trade (DFAT) as these reports were “authoritative” and “quite recent” and as DFAT had been charged specifically with the provision of such advice to the Australian government. It discussed aspects of March and October 2014 DFAT reports and some other country information in relation to the situation of Hazara Shias in Afghanistan, generally and in Kabul in particular. It had regard to the absence of evidence of past systematic or disproportionate targeting of Hazaras or Shias in Kabul. It referred to 2012 information which suggested that despite generalised or indiscriminate criminal and insurgent violence, Hazaras were no less safe in Kabul than any other ethnic group. As discussed further below, it also referred to some information cited in the Applicant’s July 2015 submission.
The Tribunal was of the view that the “available” country information indicated that the chance or risk of the Applicant being seriously or significantly harmed in an insurgency attack on Kabul would be “best described as remote, and not a real chance or real risk”.
The Tribunal accepted that there had been “some incidents” in which Hazara Shias had been targeted and where ethnicity and religion would appear to be a factor and that IS had “started operating in Afghanistan”. It did not refer to particular country information about IS. It did not accept that “all” Hazara Shias in Kabul faced a real chance of persecution or significant harm now or in the reasonably foreseeable future “from these Sunni groups or anyone else”. The Tribunal accepted that the Applicant was a Shia and that he would attend mosque and religious events, but concluded that “given the country information” the chance or risk that he would be seriously or significantly harmed was remote.
The Tribunal stated that in making these findings it had taken into account the withdrawal of international forces from Afghanistan. It accepted that country information indicated that the withdrawal of troops had led to an increase in violence. However it did not accept that the withdrawal “has led to the deterioration of security to such an extent that the government has lost control of significant locations in Afghanistan, and most relevantly for the applicant, locations such as Kabul”. The Tribunal did not accept that the Applicant had a real chance of serious harm or a real risk of significant harm “arising from the withdrawal of foreign troops from Afghanistan” now or in the reasonably foreseeable future.
The Tribunal accepted that the Applicant had only limited primary school education, that his parents had stopped sending him to school because they thought it would be too dangerous and that he had suffered verbal abuse from Pashtuns. The Tribunal found that even if the Applicant had received lower grades in school because he was a Hazara Shia as claimed, such events were some 20 years earlier and had occurred during a period the Taliban was in power. In assessing the Applicant’s future prospects it placed more weight on more recent circumstances affecting him and on independent country information indicating that there were no laws or government policies that discriminated against Shias and that “broadly speaking” there was little societal discrimination that would limit opportunities for Shias in daily life on the basis of their Shia religion. The Tribunal acknowledged that there was societal discrimination on the basis of ethnicity, that the Applicant had limited education and that most of his family was now in Australia. However it had regard to the Applicant’s personal circumstances and work and study history, as well as DFAT information, in finding that he would be able to use his skills to obtain work in Kabul to support himself. It found that the chance that the Applicant would suffer discrimination or treatment amounting to either serious or significant harm was remote.
The Tribunal also found that, even if it accepted that the Applicant and his family had been forced to pay a higher rent than other shop owners in the market because they were Hazaras, this had occurred many years earlier and did not amount to either serious or significant harm.
The Tribunal found that “[c]onsidering the country information as a whole” and the Applicant’s individual circumstances, the Applicant did not face a real chance of persecution in the reasonably foreseeable future on account of his race, religion, actual or imputed political opinion arising out of his race and religion “at the hands of the Taliban, ISIS, Lashkar-e Jhangvi or anybody else”. It also found that the Applicant did not meet the complementary protection criterion “on these bases”.
The Tribunal addressed the Applicant’s claim to fear harm as a member of the particular social group of “Failed Shia Hazara asylum seekers”. It stated that it had had regard to reports referred to by the Applicant’s agent which suggested that there were “negative attitudes to returnees”. However it did not accept that such treatment amounted to serious or significant harm.
In this context, the Tribunal stated that it had also taken into account reports submitted by the Applicant’s adviser about two Hazara returnees from Australia being targeted in Afghanistan. However it found that these reports concerned individuals who were targeted outside Kabul and that there was no information that returnees or failed Hazara Shia asylum seekers had been targeted in Kabul. The Tribunal had regard to DFAT’s assessment that there was no evidence to indicate that low-profile individuals were subject to discrimination or violence as a result of having spent time in Western countries.
The Tribunal concluded that considering the country information “as a whole” and the Applicant’s individual circumstances, the Applicant did not face a real chance of persecution on account of his membership of a particular social group of failed Shia Hazara asylum seekers or due to any imputed political opinion as being a supporter of the West and that he did not meet the complementary protection criterion on these bases.
Under the heading “Conditions in Kabul” the Tribunal accepted the submission of the Applicant’s representative that there was poor sanitation, lack of clean water, poor infrastructure and limited health care in Kabul. It also acknowledged that the Applicant claimed that his mother had died in hospital due to lack of facilities, but did not accept that any of these matters created a real risk that the Applicant, an adult in his 20s who had not claimed to have any particular health problems, would suffer significant harm. The Tribunal found that the country information did not indicate that there was the element of “intention” necessary for these circumstances in Kabul to come within the definitions of conduct amounting to “significant harm” under the Migration Act 1958 (Cth) (the Act). While accepting that conditions were basic, the Tribunal also had regard to improvements in public health medical care in Afghanistan in more recent times, particularly in Kabul. It accepted that the Applicant’s mother died in 2011, but observed that she had been in hospital receiving medication. It concluded that the conditions complained of did not come within the definitions of conduct amounting to significant harm (to which it referred) and found that the Applicant did not face a real risk of significant harm due to any of these factors. The Tribunal found that these conditions did not constitute serious harm or serious harm for a Convention reason and that, on the information available, there was not a real chance the Applicant would be denied access to health or any other services for a Convention reason.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
The Applicant sought review by application filed in this court on 2 September 2015. He now relies on an Amended Application filed on 18 April 2017.
There are 4 grounds in the Amended Application, but ground 3 was not pressed.
Whether the Tribunal failed to have regard to a relevant consideration or otherwise failed to carry out its statutory task
Ground 1 is as follows:
(1) The Tribunal engaged in jurisdictional error by failing to have regard to a relevant consideration or otherwise failed to carry out its statutory task.
Particulars
(a) A significant matter that bore upon the Tribunal’s rejection of the applicant’s Hazara Shia claims was its acceptance of evidence to the effect that Hazara Shias were not disproportionately subjected to violence, although ethnicity or religion was a contributing factor (especially at [33] and [34]).
(b) In accepting this evidence, the Tribunal did not consider the recent country information advanced by the applicant on this issue in the submission of the applicant’s agent dated 31 July 2005 (sic) (especially at [6]–[7] and [12]) concerning the targeting of Hazara Shias in Afghanistan.
(c) In the premises, the Tribunal failed to take into account a relevant consideration or otherwise failed to carry out its statutory task.
The Applicant pointed out that under the Act a question for the Tribunal at the time of its decision in August 2015 was whether, if the Applicant returned to Afghanistan in late 2015 or shortly thereafter, he would face a real chance of persecution (and see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [37]). It was contended that, consistent with the approach taken in MZYTS at [37]-[38] and [73]-[77], such task could not lawfully be undertaken “without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in [his home country] for him if he were to be returned there” (see MZYTS at [38]).
Reliance was placed on the fact that the Full Court in MZYTS had indicated that a decision could only be made by the Tribunal after “evaluation of all the pertinent material put forward” by an applicant in support of his or her specific claims (and any contradictory information to which the Tribunal chose to make reference) “including the most recent material” and also after making “a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same” (MZYTS at [38]).
The Applicant acknowledged that in MZYTS at [74] the Full Court had accepted that a decision-maker could have regard to information which was several years old in preference to more recent information as part of a weighing process after considering all information available and deciding which information best and most reliably supported the prediction of future risk. However it was submitted the July 2015 submission had referred to country information addressing the risk faced by Hazara Shias which was the most recent country information before the Tribunal and post-dated the DFAT country information which was referred to by the Tribunal. It was submitted that while it was open to the Tribunal to reject or give low weight to such information, it was not open to the Tribunal to ignore it. It was said to be incumbent on the Tribunal to undertake the task described in MZYTS at [74] by considering all the information before it and then deciding what best and most reliably supported the prediction of future risk.
However the Applicant submitted that the Tribunal had “failed altogether” to refer to relevant recent country information put to it in the July 2015 submission and had also failed to engage in a process of weighing that information and the DFAT country information. It was contended that as such a reasoning process was of such significance to the decision, if the Tribunal had engaged in a weighing process it would have set out such reasoning. The Applicant submitted that the Tribunal’s failure to engage in such a reasoning process disclosed jurisdictional error.
It was contended that in failing to “consider” the more recent country information addressed in the July 2015 submission the Tribunal had fallen into a jurisdictional error which could be characterised as a failure to perform the statutory task imposed on it by the relevant provisions of the Act (see MZYTS) or a failure to take into account a relevant consideration, being a failure to address a claim made by the Applicant.
The Applicant explained that it was contended that in considering the prospect of future harm to him as a Hazara Shia, the Tribunal had failed to proceed in the manner described in MZYTS at [38] in failing to have regard to particular items of independent country information cited in the July 2015 submission relevant to the Applicant’s claims about the ongoing situation on the ground in Afghanistan, especially as referred to in paragraphs 6, 7 and 12 of the submission.
Paragraphs 5 to 7 of the July 2015 submission appear under the heading “Current Security Situation of Afghanistan”. Paragraph 5 referred to a February 2015 United Nations Report that 2014 was the deadliest year in Afghanistan since 2007, with an increased civilian casualty rate attributed to increased ground battles between anti-government elements (referred to as “AGEs”) and the Afghan government and also a drastic decrease in the number of Western troops in Afghanistan.
Counsel for the Applicant pointed to a reference (in para.6 of the July 2015 submission) to a December 2014 article in The Guardian about a resurgent Taliban targeting Afghan Hazaras “as Australia sends them back”. It reported that a former human rights lawyer working for the United Nations claimed that the withdrawal of Western troops had left a “chasmic power vacuum in Afghanistan” and had led to a changing situation in Afghanistan; that the Taliban was “emboldened” after the withdrawal of Western troops; that there were changes in territorial control; and that particular ethnic groups, “including the Hazara” had been “disproportionately targeted”.
The Applicant submitted that the “recency” of this December 2014 information was important, because it post-dated the DFAT reports of March and October 2014 to which the Tribunal had given “considerable weight”, notwithstanding that there was evidence before it, in the material cited in the July 2015 submission, that there was a volatile changing situation in Afghanistan.
The Applicant acknowledged that the Tribunal had accepted that the withdrawal of Western troops had led to an increase in violence in Afghanistan. However issue was taken with the absence of any reference (or explanation for the absence of reference) to the information suggesting that there had not only been an increase in violence, but also a corresponding increase in the targeting of Shia Hazaras as at December 2014. This omission was said to be particularly significant in circumstances where the claim under consideration was that of a risk of harm to the Applicant as a Hazara Shia from the Taliban or from IS.
The Applicant also pointed to the fact that para.7 of the July 2015 submission referred to targeting of Shia Hazaras in support of the proposition that the “increased” capability and risk of violence, not only from what was described in the cited Guardian article as an “emboldened” Taliban, but also from other anti-government elements, was of “grave” concern to the Shia Hazara population of Afghanistan. Paragraph 7 included references to recent country information about several instances of kidnappings and attacks on Shia Hazaras in 2015 in Afghanistan. It was said to be clear from the text and footnotes identifying the sources for those allegations that such information dated from the first or second quarter of 2015, which was relatively recent, both at the time of the July 2015 submission and the Tribunal’s decision of 7 August 2015 and, importantly, post-dated the DFAT reports of March 2014 and October 2014 which were relied upon by the Tribunal.
However it was submitted that the Tribunal had relied on the 2014 DFAT reports and had failed to evaluate this more recent information in considering the ongoing circumstances on the ground in Afghanistan for the Applicant if he were to be returned there.
Paragraphs 8 to 9 of the July 2015 submission addressed the “Current Security Situation in Kabul”. In addition to referring to the DFAT October 2014 report that insurgents regularly conducted high-profile attacks in Kabul, para.8 of the submission “listed” eight instances of what were said to be almost daily attacks and suicide bombings carried out by the Taliban in Kabul in May to July 2015 in a “surge of violence” in Kabul. Paragraph 9 referred to evidence of civilian casualties in 2015 attacks and the fact that an April 2015 United Nations report documented a record high number of civilian deaths and injuries in the first quarter of 2015 following the previous record high of 2014.
The other aspects of the July 2015 submission relied on by the Applicant in support of ground 1 appear under the heading “Security in the foreseeable future”.
The July 2015 submission referred (at para.10) to a March 2015 report of an expectation on the part of a named political analyst and journalist that the Taliban (and other armed groups) would gain momentum in Afghanistan in the warmer months of 2015. The submission suggested (at para.11) that the United Nations April 2015 report appeared to confirm such expectations.
The Applicant also pointed to the fact that in paragraphs 12 to 14 the July 2015 submission addressed and cited recent information in relation to the activities of IS (referred to in the Tribunal decision as IS) in Afghanistan, including reports of alliances with groups formerly aligned with the Taliban, reported activities of IS fighters and the possible impact of IS influence and activities in Afghanistan.
While the Applicant acknowledged that the Tribunal had accepted (in para.39 of its reasons) that IS had “started” operating in Afghanistan, it was pointed out that para.12 of the July 2015 submission had also referred to country information from March 2015 about IS activities in Kabul, in particular an article in The Australian newspaper which included the information that in western Kabul, which had a large Hazara community, residents had received “night letters” bearing the IS logo in which Shi’ite Muslims were denounced as infidels. The Applicant submitted that this amounted to specific evidence as to the recent targeting of Shi’ites by IS in a Hazara area of Kabul. This was said to be important, because the Tribunal had proceeded on the basis that it was reasonable to expect that the Applicant would reside in Kabul.
The July 2015 submission went on to discuss IS influence in Afghanistan in more detail in paragraphs 13 to 14, including citing country information dating from November 2014 to April 2015 such as the suggestion in a January 2015 press report that IS influence was “quickly gaining ground” in Afghanistan and the later information that an IS affiliated group had claimed responsibility for an April 2015 suicide bombing in Jalalabad, Afghanistan. It was submitted that it was likely the civilian casualty rate would continue to soar and that the “real likelihood” that the Taliban, IS or other anti-government elements would regain effective control of larger areas of Afghanistan in the near future was of “particular concern” to Hazara Shias of Afghanistan.
The Applicant submitted generally that when regard was had to the Tribunal reasons for decision it was apparent that the recent country information referred to in the July 2015 submission (in particular about a volatile situation and IS influence and activities) was important to the Tribunal’s consideration of his Hazara Shia claims.
The Applicant recognised that the Tribunal had stated (at para.38) that it had taken into account “the list of insurgency attacks on Kabul listed in the agent’s submissions”. It was not disputed that this was a reference to the list in para.8 in the July 2015 submission of “almost daily attacks and suicide bombings” carried out by the Taliban in Kabul between May and July 2015. However it was pointed out that there was no reference to the cited 2015 country information relevant to the Applicant’s claimed fear of IS (in particular the March 2015 information about night letters in Kabul) in the part of the Tribunal’s reasons addressing the Applicant’s Hazara Shia claims. Instead, the Tribunal was said to have reached the view that the available country information indicated that the chance or risk of the Applicant being seriously or significantly harmed as a victim of insurgency attacks on Kabul would be best described as “remote” based on the cited 2014 DFAT reports.
While the Applicant also acknowledged that in para.39 of its reasons the Tribunal had accepted that there had been “some incidents where Hazara Shias have been targeted and where ethnicity and religion would appear to be a factor” and that IS had “started operating in Afghanistan”, it was pointed out that there was no reference by the Tribunal to IS operating in Kabul (as distinct from in Afghanistan in general) or to country information cited in the July 2015 submission relevant to the future risk of IS attacks against Hazara Shias, in particular in Kabul. Further, it was contended that nowhere in this part of the Tribunal’s reasons for decision was there any articulation of a reason to reject, discount or give low weight to the recent country information about IS in the Applicant’s July 2015 submission in circumstances where there was evidence of a rapidly changing situation in Afghanistan.
It was accepted that it would have been open to the Tribunal to decide to give weight to and to prefer DFAT reports of 26 March 2014 on “Hazaras in Afghanistan and Pakistan” and of 3 October 2014 on “Conditions in Kabul” to other evidence. However it was submitted that in circumstances where there was more recent country information put before the Tribunal (in particular including the March 2015 report in The Australian about threatening night letters from IS being sent to those in a Hazara area of Kabul and information about a changing and “volatile” situation in Afghanistan) which post-dated the DFAT reports, the Tribunal had erred in failing to articulate why it preferred the earlier DFAT reports when considering the risk or chance of future harm to the Applicant.
The Applicant addressed the fact that the Tribunal stated (at para.20) that it had had regard to material available to it from a range of sources which included the July 2015 submission (albeit misdescribed as a July 2014 submission) and (at para.31) at the start of its consideration of the Applicant’s Hazara Shia claims had stated that it had “considered carefully the country information submitted by the agents as to the situation for Hazara Shia in Afghanistan and Kabul and the overall current security situation”, as well as reaching conclusions in relation to the Hazara Shia claims (at paragraphs 45 and 46) which were said to be on the basis of “considering the country information as a whole”. It was submitted that such boilerplate references to the country information and the Tribunal’s acceptance that IS had started operating in Afghanistan were not such as to oblige the court to find that there had in fact been a consideration of the information in the July 2015 submission.
It was submitted that in the circumstances of this case the Tribunal was obliged to “consider” the more recent country information put to it by the Applicant in support of his claims. The Applicant contended that in circumstances where there was no comparison of the DFAT reports with the more recent country information cited in his July 2015 submission and no articulation of any weighing process involving such more recent country information in the Tribunal reasons it should be inferred that the Tribunal did not consider such information. This was said to be an error of the kind identified in MZYTS. MZYTS was said to have made it clear that in circumstances such as the present there had to be an “active intellectual engagement” with recent country information, and that the Tribunal reasons had to disclose an evaluative process, including an explanation as to why more recent information had not been given weight.
In submissions, the First Respondent pointed to the extensive nature of the July 2015 submission and the fact that it contained 57 paragraphs, 61 footnotes and numerous references to country information. It was contended that the Applicant had sought to isolate certain pieces of this information which he alleged the Tribunal did not consider, notwithstanding what were said to be the Tribunal’s “repeated” assurances in its reasons that it had considered the country information he submitted, not only in paragraphs 20 and 31 of the Tribunal’s decision, but also in para.38, in which the Tribunal stated that it had taken into account the list of insurgent attacks in Kabul (in the July 2015 submission). The First Respondent contended that the Tribunal had given cogent reasons for giving weight to the DFAT reports, despite accepting the Applicant’s evidence that insurgency attacks had subsequently occurred. It was also submitted that the Tribunal had accepted the “key premises” of “much” of the information cited in the July 2015 submission, including that insurgency attacks continued to occur, that Hazara Shias were targeted in some instances and that IS had started operating in Afghanistan.
It was said to be “trite” that the Tribunal was not required to refer specifically to every piece of country information before it and that the selection of country information was a matter for the Tribunal (see SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230 at [43]-[44]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]).
The First Respondent submitted that, consistent with the approach taken in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97]-[112] and in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [62]-[69]), for the Applicant to succeed in relation to this ground he must persuade the court not only that the Tribunal had overlooked relevant country information which was material to and corroborative of his claims, but also that the information was of such a cogent, central and substantial nature as to have gone to the exercise of jurisdiction. It was submitted that the Applicant could not overcome either of these hurdles.
The First Respondent sought to distinguish MZYTS on the basis that in that case there was country information before the Tribunal that was said to significantly indicate “an escalation of matters” in Zimbabwe. It was suggested that this was not so in the present case. In any event, it was submitted that each case had to be determined having regard to its own circumstances and not by factual analogies with other decisions.
The written submissions for the Minster were prepared on the assumption that any asserted error relating to the material in para.6 of the July 2015 submission was not pressed by the Applicant, because there was no specific reference to this paragraph in the Applicant’s written submissions. After counsel for the Applicant clarified that this part of ground 1 was still relied on and pointed out that the particulars referred generally to the information relevant to the issue of whether Hazara Shias were disproportionately subjected to violence, the First Respondent addressed the information in para.6 of the July 2015 submission in oral submissions. There was no suggestion that the First Respondent was in any way disadvantaged by having made this assumption. The First Respondent did not seek the opportunity to make any post-hearing submissions in relation to ground 1, notwithstanding being afforded that opportunity in relation to new ground 4.
In relation to the country information referred to in para.6 of the July 2015 submission, the First Respondent submitted that it was clear from the Tribunal’s reasoning (particularly in paragraphs 40 to 42) that it was very much alive to the situation to which para.6 of the agent’s submissions was said to speak, that is, the withdrawal of Western troops from Afghanistan. The First Respondent submitted that it was not correct to suggest that the Tribunal had simply relied on the DFAT 2014 reports to the exclusion of all other country information. In considering the impact of the withdrawal of Western troops the Tribunal had also had regard to information that post‑dated the DFAT reports (a December 2014 report from the UN Secretary General on the situation in Afghanistan and a February 2015 opinion piece published in The Wall Street Journal).
The First Respondent also submitted that the Tribunal had ultimately accepted the main proposition from the material cited in para.6 of the July 2015 submission, which was said to be that, as expected, the withdrawal of Western troops in 2014 had led to an increase in violence.
In relation to country information about instances of recent violence against Hazaras to which attention was drawn in para.7 of the July 2015 submission, the First Respondent submitted that it was not surprising that this specific information was not set out in the Tribunal’s reasoning, as these instances of violence to the Shia Hazara population in Afghanistan were said not to relate to the situation in Kabul, which was of direct relevance to the Applicant’s claims. The First Respondent also pointed out that while the Tribunal had accepted that instances of violence had occurred after the 2014 DFAT report (consistent with the July 2015 submission), it was not persuaded that the Applicant faced a real risk of harm in Kabul. It was submitted that the court should not find that the information in para.7 was overlooked.
In the alternative, the First Respondent submitted that even if the Tribunal did overlook the information cited in para.7 of the July 2015 submission, considered against the more directly relevant information in para.8 of the July 2015 submission about insurgency attacks (which the Tribunal expressly considered) it could not be said that the information in para.7 was of such cogent, central and substantial nature as to go to the exercise of jurisdiction in the SZRKT sense.
In relation to the information referred to in para.12 of the July 2015 submission, in particular March 2015 information about IS and “night letters” received in Kabul, the First Respondent observed that the Applicant’s submissions about IS were made after the delegate’s decision, whereas previously the focus of his claims had been on the Taliban.
In any event, the First Respondent submitted that the Applicant’s claims regarding IS were considered by the Tribunal. Reference was made to the fact that at the start of its consideration of the Hazara Shia claims the Tribunal had observed that the Applicant’s claims extended to a fear of the Taliban and IS and at para.39 of its reasons it had accepted that “there have been some incidents where Hazara Shias have been targeted, and where ethnicity and religion would appear to be a factor and that ISIS have started operating in Afghanistan”, albeit that the Tribunal did not accept that the Applicant faced a real chance of harm from this group or from anyone else in Afghanistan.
It was submitted that this conclusion was reached by the Tribunal after “considering” country information regarding the security situation in Afghanistan, and specifically in Kabul, by reference to all perpetrators of violence and insurgent groups.
Further, the First Respondent submitted that having regard to the Tribunal’s references to IS, the court should infer that the Tribunal’s acceptance that IS had started to operate in Afghanistan warranted an inference that it had considered and had not overlooked the information about IS in the July 2015 submission. It was submitted that it could not sensibly be said that the Tribunal was not aware of the information that IS had started operating in Kabul and did not “like” Hazara Shias in coming to its decision. On this basis it was contended that the court should not be persuaded that the reference to night letters was either overlooked by the Tribunal or of such cogent, central and substantial nature as to be capable of going to the exercise of jurisdiction.
Consideration
Paragraphs 6 to 7 of the July 2015 submission of relevance are as follows:
6. The Taliban and other insurgency groups were responsible for 74% of the civilian casualties during this period.5 Mr Benjamin Lee, a former human rights lawyer working for United Nations in Afghanistan has stated that the withdrawal of Western troops has left a “chasmic power vacuum in Afghanistan”:
This has changed the war’s dynamics. Afghan security forces are now clashing with Taliban and other insurgent groups in villages, in communities, in populated areas…
Mortar rounds, rocket-propelled grenades, heavy and small arms fire, improvised bombs, characterise these exchanges, and the impact on civilians is tragically predictable.
…
This is an emboldened Taliban, this is changes (sic) in territorial control, this is a consequence of the withdrawal of a lot of the advanced technological equipment that international forces had available to them, particularly aircraft… Particular ethnic groups, including the Hazara, have been disproportionately targeted, but the point I would convey is that it’s simply not safe to send anyone back, regardless of their ethnicity. 6
5 Amnesty International, Amnesty International Report 2014/15 – Afghanistan, 25 February 2015, available at: Abdul Karim Hekmat and Ben Doherty, ‘Resurgent Taliban targets Afghan Hazara as Australia sends them back’ (17 December 2014) The Guardian < The increased capability and violence from the Taliban and other AGEs is of grave concern to the Shia Hazara population of Afghanistan. There have been four instances of mass Shia Hazaras (sic) kidnappings this year which have been reported in mainstream media.7 Hazara.net has published a higher number of kidnappings, reporting that there have been seven Shia Hazara kidnappings this year, two of which occurred within the Ghazni area.8 Several of those kidnapped have later been found beheaded. 9 Additionally, on 20 January this year, nine Hazara passengers were killed whilst travelling on the roads between Kabul and Jaghori. 10
7 S Raghavan, ‘After suffering under the Taliban, an Afghan minority faces new threats’ (9 April 2015) Washington Post < See: R Nordland and J Sukhanyar, ‘Taliban are said to target Hazaras to try to match ISIS brutality’ (22 April 2015) The New York Times < M Rizaee, ‘Nine Hazara Passengers Killed by Taliban’ (25 January 2015) Kabul Press.
After addressing the current security situation in Kabul and referring (in para.8) to insurgent attacks occurring in May to July 2015, the submission addressed “Security in the foreseeable future”. In para.10 it referred to March and April 2015 reports in support of the proposition that the Taliban would gain momentum (and civilian deaths and injuries would increase) in the warmer months of 2015.
In the context of addressing “Security in the foreseeable future” paragraphs 12 to 14 of the July 2015 submission also addressed recent information about the activities of IS in Afghanistan as follows:
12. Additionally, there are reports that groups that had formally (sic) aligned with the Taliban are now forming alliances with the ultra-violent Islamic movement, Islamic State (IS). 23 There are also reports that IS fighters were present in pockets throughout Afghanistan:
In January, officials in the southern province of Helmand said IS was operating in the area. In early February, Kabul announced that the IS head in southwest Afghanistan, Mullah Abdul Rauf, was killed in a military operation.
Most recently, officials in Logar Province said IS fighters had burned several homes and destroyed a shrine. IS’s black flags have also appeared in the eastern province. In western Kabul, which has a large Hazara community, residents have received night letters bearing the IS logo in which Shi’ite Muslims are denounced as infidels.
[emphasis in submission]
Analysts have played down the presence of IS fighters in Afghanistan, saying that local officials might be exaggerating their presence in a bid to attract funding from the central government.
But U.S. General John Campbell, the commander of the remaining NATO forces in Afghanistan, said this week that IS has a “nascent” presence in Afghanistan. U.S. Secretary of Defence Ashton Carter has said the risk posed by the group could force the White House to seriously consider slowing the pace of its troop withdrawal in Afghanistan. 24
23 ‘News Analysis: Spring offensive by the Taliban very likely, says Afghan analyst’ (16 March 2015) Xinhau <
24 Amanda Hodge, ‘Taliban kills Afghan aide denied Australian Defence Force visa’ (14 March 2015) < The UN has also confirmed that IS has moved into Afghanistan and has the potential to to (sic) “offer an alternative flagpole to which otherwise isolated insurgent splinter groups can rally”.25 The Jamestown Foundation has published an extensive report in relation to IS influence in Afghanistan (as well as Pakistan):
Amid a series of government denials from Pakistan and Afghanistan regarding the presence of the Islamic State militant group in these countries and its ongoing outreach activities there, its expansion was corroborated by none other than the Islamic State’s spokesperson, Abu Muhammad al-Adnani, on January 26, 2015 (The Nation [Lahore] September 5, 2014; Dawn [Karachi], November 11, 2014; Pajhwok, February 5). Al-Adnani, who is believed to be in Iraq or Syria, formally announced the establishment of Wilayat Khurasan (literally Khurasan Province, hereafter IS Khurasan), a reference to a historical region broadly centering (sic) on Afghanistan and Pakistan. This claim was made, in an audio statement entitled “Say, ‘Die in Your Rage,’” which was released by al-Furqan media foundation, one of the Islamic State’s media arms. [1]He also endorsed a former Taliban commander, Hafiz Saeed Khan, as its governor (wali) in the same speech. Khan had previously pledged allegiance to Abu Bakr al-Baghdadi, the self-proclaimed caliph of the Islamic State, along with a network of other disgruntled Taliban commanders and foot soldiers.
…
These developments suggest that the Islamic State has found a conducive social and political environment in which to gain a foothold in the AfPak region, where several Taliban and al-Qaeda-linked Islamist groups, both violent and non-violent, already have similar sectarian and caliphate-centric worldviews. Underlining this, before his death in February’s drone strike, Khadim was reported actively engaged in recruiting Afghan fighters for the Islamic State, mostly in the country’s Helmand region (IBTimes, January 14). This recruitment drive and open campaigning for IS apparently led to direct confrontations with the followers of local Taliban warlord Abdul Rahim Akhund, a supporter of Mullah Omar’s self-declared “Islamic Emirate of Afghanistan.” At one point, as a result of these tensions, Khadim was even briefly apprehended for his pro-Islamic State activites along with his 45 followers by supporters of Mullah Omar (Afghan Zariza, February 1).
In addition, Islamic State flags have been seen hoisted in Afghanistan’s Ghazni and Nimroz provinces, following which large numbers of Taliban fighters reportedly switched allegiance from Mullah Omar to al-Baghdadi (Khaama Press, February 1). Dabiq, the official Islamic State publication, further listed a number of alleged strongholds of support, including Nuristan, Kuna, Kandahar, Khost, Paktia, Paktika, Ghazni, Wardak, Kunduz, Logar and Nangarhar. [4] Furthermore, in January, information about an Islamic State training center (sic) in Afghanistan’s Farah province raised speculation about increasing Islamic State activities there (Pajhwok, January 14). Furthermore, other armed confrontations between the Islamic State and the Taliban underscores the increasing clout of IS Khurasan, especially in Charakh in Logar province where IS Khurasan militants killed Abdul Ghani, a senior Taliban commander loyal to Mullah Omar, and wounded his three associates in February (Pajhwok, February 2).
That Islamic State influence is quickly gaining ground in Afghanistan, the current seat of famed Taliban Emirate led by Mullah Omar, is not necessarily surprising. For instance, al-Baghdadi’s public questioning of the spiritual and political credibility of the Taliban’s supreme leader, and description of him as “fool” and “illiterate warlord,” has certainly found some resonance in Afghanistan and Pakistan, where the Taliban and al-Qaeda have not been able to decisively consolidate their position after decades of struggle (Khaama Press, January 29).
25 ‘UN: IS appears to have presence in Afghanistan’ (17 March 2015) Radio Free Europe / Radio Liberty < Recently, an IS affiliated group have claimed responsibility for a suicide bombing in Jalalabad on 18 April 2015 which killed 35 people.26 Given the dramatic increase in civilian casualties since Western troops started to withdraw last year, it is likely that the casualty rate will continue to soar as the summer fighting season continues. The real likelihood that the Taliban, IS or other AGEs will regain effective control of larger areas of Afghanistan in the near future is of particular concern (sic) Hazara Shia population of Afghanistan.
26 N Hodge and Q Nauman, ‘Islamic State Offshoot Poses New Security Threat in Afghanistan’ Wall Street Journal (19 April 2015) <>
In para.15 of the July 2015 submission it was contended that in light of “the above”, the Tribunal should find that there was a real chance the Applicant would be subjected to serious harm in the reasonably foreseeable future for reasons of his religion.
In MZYTS the Full Court of the Federal Court referred to well-established principles in relation to the Tribunal’s task in forming the requisite state of satisfaction under s.65 of the Act in respect of the Refugees Convention criterion for a protection visa (s.36(2)(a) and now also see s.5H and s.5J of the Act). As stated in MZYTS at [33], the occasion on which the application of this criterion is to be considered by the Tribunal is the prospect that a person will be returned to his or her country of nationality; “the risks if any she or he might then face, and the reasons she or he may face those risks”. The same may be said in relation to the complementary protection criterion.
The Court explained in MZYTS (at [33]):
It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571–573.
These principles were elaborated on at [34]-[36]:
34. Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
35. The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. It is appropriate to recall how the task was described by Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (S395) at [73]–[76]:
The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.
(emphasis added)
36. In that sense, to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.
In this case the Tribunal had to engage in the predictive task of considering, relevantly, the risk of future harm to the Applicant as a Hazara Shia in Afghanistan and to determine whether there was an objective basis for his fears. It had to assess what might happen to the Applicant if he were compelled to return to Afghanistan (in particular to Kabul) in late 2015 or in the near future thereafter. As pointed out in MZYTS at [35], this aspect of the Tribunal’s task “can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there”.
The Tribunal did acknowledge the July 2015 submission. It stated generally that it had “had regard to” this “material” and also stated (generally) that it had “considered carefully the country information submitted by the agents as to the situation for Hazara Shias in Afghanistan and Kabul and the overall current security situation”. It understood that the Applicant claimed to fear harm as a Hazara Shia at the hands of IS as well as the Taliban. It purported to address this claim “[c]onsidering the country information as a whole” and the Applicant’s individual circumstances.
The Tribunal did address information relating to the consequences of the withdrawal of Western troops (the main issue canvassed in para.6 of the July 2015 submission). In that context it referred to December 2014 and February 2015 information that post-dated the DFAT reports (albeit not the reports cited in the July 2015 submission) in accepting that the withdrawal had led to an increase in violence (as addressed in para.6 of the July 2015 submission), but not to the deterioration of security to such an extent that the government “has lost control” of significant locations, such as Kabul. The information in the July 2015 submission was not to the contrary. The Tribunal assessed and made findings of fact about the then current situation in Afghanistan. It was not necessary for it to refer expressly to the particular country information cited in para.6 of the July 2015 submission in respect of the impact of the withdrawal of Western troops as such (cf MZYTS at [38]).
The Tribunal had regard not only to information that post-dated the DFAT 2014 reports (a December 2014 UN Report and a February 2015 “opinion piece”) in this context. It also considered whether Hazara Shias had been disproportionately targeted (as a former human rights lawyer was cited as claiming in relation to Hazaras generally in Afghanistan in a December 2014 Guardian press report cited in para.6 of the July 2015 submission). Having regard to the Tribunal’s reference to a range of information in that respect (including not only 2014 DFAT reports but also a March 2015 departmental issues paper in relation to whether Hazaras in Kabul had been systematically targeted) I am not satisfied that the particular information cited in para.6 of the July 2015 submission was overlooked or, if it was, that this generally expressed information about the effect of the withdrawal of Western troops from Afghanistan was in itself of such cogent, central and substantial nature as to be capable of going to the exercise of jurisdiction (cf SZRKT and ARG15).
The Tribunal also accepted that there had been some incidents where Hazara Shias had been targeted and where religion and ethnicity would appear to be a factor (consistent with the incidents discussed in para.7 of the July 2015 submission). It referred to the list of 2015 insurgency attacks in Kabul cited in para.8 of the July 2015 submission. Having regard to the Applicant’s circumstances, and the Tribunal’s view that the Applicant had never lived outside Kabul, it was not necessary for the Tribunal to address expressly evidence of past incidents outside Kabul (or those not said to have occurred in Kabul) as described in para.7 of the July 2015 submission.
These cited reports of Hazara kidnappings in Afghanistan in 2015 were not, in themselves, sufficiently cogent, central and substantial in relation to the Applicant’s claims to fear future harm such as to establish an error of the sort considered in MZYTS or in SZRKT and ARG15.
However, while the Tribunal engaged with some aspects of information about the recent situation in Afghanistan, including acknowledging that there had been an increase in violence (referred to in general terms), and considered whether the government had “lost control” of significant locations in Afghanistan (such as Kabul) following the withdrawal of foreign troops, its reasons do not reveal any assessment of the material and evidence relied on by the Applicant in support of his claim to fear IS in the future (other than that which indicated that IS had “started operation in Afghanistan”).
In addressing the risk of harm to the Applicant (as a Hazara Shia) now or in the reasonably foreseeable future the Tribunal made no express reference to recent country information referred to in the July 2015 submission which suggested that there was a volatile and quickly changing situation in Afghanistan and addressed security in the foreseeable future having regard to the implications of increasing operations and influence of IS in Afghanistan (including, but not limited to, the night letters incident in Kabul).
The Applicant’s claim was not limited to a claim that he feared harm as a consequence of the Afghan government losing control of particular locations, such as Kabul. The Applicant contended, through the July 2015 submission, that there was a volatile and changing situation in Afghanistan after the 2014 withdrawal of Western troops and also through 2015, as recorded in cited items of country information from late 2014 and 2015.
In the recent information cited in the July 2015 submission it was claimed that there was increased capability and violence on the part of the Taliban and other anti-government elements. In the context of addressing the foreseeable future, reference was made to the fact that (as at July 2015) IS influence was “quickly gaining ground”. In effect, it was claimed there were rapidly rising risks of religious or racially motivated violence for people like the Applicant (Hazara Shia) in Afghanistan, in particular in Kabul, including (relevantly) from IS as well as the Taliban and other AGEs. The submission cited recent reports as to expectations about future developments. The Applicant specifically relied on 2015 country information which reported that groups formerly aligned with the Taliban were forming alliances with the ultra-violent Islamic movement IS, that the IS influence was spreading and that “IS fighters were present in pockets throughout Afghanistan”. In addition, evidence was cited that in western Kabul (an area with a large Hazara community in the city to which the Applicant would return) residents had received night letters bearing the IS logo in which Shi’ite Muslims (such as the Applicant) were denounced as infidels. More generally, reference was made to information from January 2015 that IS was “quickly gaining ground in Afghanistan”.
The July 2015 submission cited such information in support not only of the contention that there was a real likelihood that the Taliban, IS or other AGEs would regain effective control of larger areas of Afghanistan “in the near future” (said to be of particular concern to Afghan Hazara Shias), but also in support of the wider claim that in light of this information the Tribunal should find that there was “a real chance the Applicant would be subjected to serious harm in the reasonably foreseeable future for reasons of his religion”.
It is the case that a Tribunal’s failure to refer to particular material does not necessarily mean it has not been considered by the Tribunal (see ARG15 at [65] and cases cited therein). What is in issue is “whether the Tribunal’s reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims” (MZYTS at [52] and see, to the same effect, ARG15 at [67]).
Critically, it was for the Tribunal, making its decision in August 2015, “to assess and determine what might happen to [the Applicant] if he were compelled to return” to Afghanistan in 2015 “or in the near future thereafter” (MZYTS at [37]). In that context it was necessary for the Tribunal to assess the Applicant’s claimed fear of IS as well as of the Taliban.
The Tribunal’s statutory task could not be lawfully undertaken “without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground… for [the Applicant] if he were to be returned” to Afghanistan (MZYTS at [38]). However, while stating conclusions in relation to the Applicant’s fear of future harm (including from IS), the Tribunal did not address the material put forward by the Applicant in support of this aspect of his claims. In particular, the Tribunal did not engage with any of the information cited in the submission about IS, except to accept that “ISIS have started operating in Afghanistan”. While it would have been open to the Tribunal to find that information other than that cited in the July 2015 submission might give a more accurate picture, as stated in MZYTS at [38]: “that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same”. The evaluation, in a country such as Afghanistan and in the context of the particular claims made by the Applicant, had to demonstrate that the Tribunal identified the material questions of fact necessary for it to “address” all the integers of the claims made by the Applicant (see MZYTS at [52]-[54]).
As indicated, the July 2015 submission drew specific attention to various items of recent country information (post-dating the 2014 DFAT reports) in support of the Applicant’s claims to fear harm on account of his Shia religion and Hazara ethnicity. It is apparent that the Tribunal recognised that facts about the current security situation in Afghanistan were in issue. However, while the Tribunal referred to various sources on which it relied in making findings of fact in relation to the situation “on the ground” in Afghanistan, it ignored other more recent material cited in the July 2015 submission (in particular the information in relation to security in the foreseeable future about increasing IS activities and influence in Afghanistan, including in Kabul) which (as considered in ARG15 at [67]) “cast a different light on the position”. As stated in MZYTS at [73]-[74]:
73. …in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
74. That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
Further, according to the July 2015 submission and information cited therein, IS had not simply “started operating” in Afghanistan, but had recently expanded its presence, influence and operations in Afghanistan, including specific activity in Kabul. The Applicant claimed to fear future harm not only from the Taliban but also from IS. In addition, he did not claim that IS had gained control of Kabul (inferentially addressed by the Tribunal’s finding that the government had not lost control of Kabul), but rather that there was a real likelihood that the Taliban, IS, or another AGE would regain effective control of larger areas of Afghanistan “in the near future”. The Tribunal may not have agreed, but it had to engage in the necessary predictive exercise involving speculation as to circumstances in the future on the basis of considering the submissions, evidence and material most likely to give it an accurate picture of the ongoing circumstances “on the ground” (MZYTS at [38]).
Insofar as Minister submitted that the Tribunal referred to having taken into account the “whole” of the country information. This is not determinative. It is the case that the Tribunal accepted much of the information cited in the July 2015 submission. I accept that this was so in relation to some aspects of the Applicant’s claims to fear harm as a Hazara Shia. However, contrary to the First Respondent’s submissions, the Tribunal’s acceptance that IS had “started operating in Afghanistan” (its only reference to IS activities) does not warrant an inference that the Tribunal considered all the information about IS influence and activities in Afghanistan in the July 2015 submission, in particular the claim about recent increasing IS involvement, including in Kabul, where night letters had been sent to Hazara Shias in a Hazara area of Kabul.
While it is the case that the Tribunal recognised that the Applicant claimed to fear harm from IS as well as the Taliban, the only express engagement in the Tribunal reasons with the IS claim and the material in that respect in the July 2015 submission in relation to the future was its acceptance that IS had started operating in Afghanistan. It did not discuss the claimed increase in IS influence and activities (including in Kabul) or address the reasonably foreseeable future in light of such information. Nor did it address the relevance to this aspect of the Applicant’s claim or general information cited in the July 2015 submission to the effect that there was a volatile and changing situation in Afghanistan in 2015. The Tribunal simply concluded at para.39:
I accept that there have been some incidents where Hazara Shias have been targeted, and where ethnicity and religion would appear to be a factor and that ISIS have started operating in Afghanistan. However, I do not accept that all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from these Sunni groups or anyone else. I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.
I am not satisfied that it should be inferred that the Tribunal considered the information about IS in the July 2015 submission, but dismissed it as not being relevant or material (see ARG15 at [67], Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34] and MZYTS at [48]-[54]). In the particular context of the Applicant’s claim to fear IS, if the Tribunal had considered the country information in that respect, one would have expected that it would have referred to such information.
Nor is this a case in which it can be inferred that in considering the risk or chance of future harm to the Applicant the Tribunal preferred material in relation to IS other than that cited in the July 2015 submission. The Tribunal did not refer to any other probative material in this respect. While its reasons do disclose some process of weighing evidence about other aspects of the situation in Afghanistan and preferring other information to information in the July 2015 submission in some respects (in which context it cited 2015 reports as well as the 2014 DFAT reports), it did not do so in relation to the claimed fear of IS. It can be inferred that it overlooked or ignored the cited material in relation to IS, except insofar as such material indicated that IS had started operating in Afghanistan.
Further, the information the Tribunal failed to consider was relevant and material as considered in ARG15 at [67]. Such information was material to and corroborative of the Applicant’s claim to fear harm in the future from IS. It was recent information of such a cogent, central and substantial nature as to go to the exercise of the Tribunal’s jurisdiction. In contrast, the parts of earlier material (such as DFAT Reports) that were cited and relied on by the Tribunal, did not address IS. Had such earlier material contained information the Tribunal considered best and most reliably related to the prediction of future risk to the Applicant from IS, one would have expected the Tribunal reasons to contain an evaluation of such material in relation to the claim of a future risk of harm from IS (not merely in general terms or in relation to the claimed fear of the Taliban) (see MZYTS at [74]).
On its face, the information about IS attitudes, increasing influence and activities in Afghanistan (including in Kabul) was corroborative of the Applicant’s claims to fear harm as a Hazara Shia. The information in this respect cited in the July 2015 submission was from a variety of sources, including the United Nations, the Jamestown Foundation and various press reports. Importantly, it was cogent information in relation to very recent circumstances in Afghanistan relevant to the Applicant’s claims to fear IS based on his religion and ethnicity (and not just the impact of the general security situation in Afghanistan for civilians generally after the withdrawal of international forces). While the Tribunal did refer to some other recent (i.e. 2015) country information, such as January 2015 information in relation to the “General Security Situation in Afghanistan and Events in Kabul” and a February 2015 opinion piece on the security situation generally, there is no evidence that the extracts relied on from such material related directly to the Applicant’s claim to fear harm from IS in the future. In contrast, the material cited in the July 2015 submission was centrally relevant and material to the Applicant’s claims that he feared harm from IS.
It is not to the point that the Applicant’s claims and submissions about IS were made after the delegate’s March 2014 decision and that previously his focus had been on a fear of the Taliban. Rather, this may be seen as reflecting the claimed volatility of the situation in Afghanistan and the recency of IS activities. Nor is it to the point that the July 2015 submission was extensive.
Insofar as the First Respondent submitted that MZYTS was distinguishable, the general principles therein in relation to the nature of the Tribunal’s task are in point. This case was not simply pleaded in terms of a failure to consider most recently available country information or items of evidence as such (see MZYTS at [72]-[74]).
Having regard to the Applicant claims to fear harm in the future from IS (not only from the Taliban) and the information cited in the July 2015 submission about a changing, volatile situation in Afghanistan and recent IS influence and activities the Tribunal had to engage in a predictive exercise considering the submissions, evidence and material advanced by the Applicant. It failed to identify the questions of fact necessary for it to address this aspect of the Applicant’s claims (cf MZYTS at [52]) insofar as it failed to make an assessment as to what the situation in that respect would be for a person such as the Applicant returning to Afghanistan in late 2015 or thereafter, that is shortly after the time of the Tribunal decision. As in MZYTS at [38] the Tribunal’s reasons do not disclose a “consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give [it] an accurate picture of the ongoing circumstances on the ground” for the Applicant.
These findings related only to the credibility of the Applicant’s claims to fear harm based on past events and as to whether he had ever lived outside Kabul, as described in para.29. The Tribunal accepted some other aspects of the Applicant’s evidence about his individual circumstances (including in relation to his ethnicity, religion and childhood experiences) and made findings about claimed past discrimination on the basis that even if it accepted that such claimed events had occurred, this did not amount to serious or significant harm.
In support of this ground the Applicant referred to the fact that in para.2 of his July 2015 statutory declaration he had admitted that in his protection visa application and supporting statement he had made what he described as “certain representations regarding my circumstances in Afghanistan which were untrue”. At paragraphs 3 to 4 of this statutory declaration he provided the following explanation:
3. Prior to my arrival in Australia, my brother [F] and I were told by friends that if we disclosed our relationship with our brother [A], this would cause problems for our family. When [A] arrived in Australia in 2001, he did not disclose the true nature of our family composition.
4. I was afraid that if I told the truth, my PV would be refused and my brothers and I would be returned to Afghanistan. I deeply regret providing this false information, which I provided due to a fear of being returned to Afghanistan.
In his declaration the Applicant went on to describe his family composition and where he had lived. He also claimed that his brother S, had operated a real estate business in Kabul (in which the Applicant worked) and that S had been approached and threatened by the Taliban in 2012.
The Applicant submitted that while he had given reasons for the inconsistencies in his evidence, the Tribunal had either failed to properly consider such reasons or to ask for clarification in circumstances where it was said to be required to do so. It was submitted that in para.27 of its reasons the Tribunal had had regard only to the Applicant’s explanation for these inconsistencies given at the Tribunal hearing, not to the explanation he had provided in his July 2015 statutory declaration. Further, the Applicant submitted that the Tribunal’s observations about what he had said at the Tribunal hearing differed from what he had actually said during the hearing, as well as from the explanation he had given in his July 2015 statutory declaration.
In particular, it was suggested that the Tribunal’s statement in its reasons that when the inconsistencies were put to the Applicant at the hearing he had claimed that when he left Afghanistan he had friends and a brother here and that he was told not to say he had a brother, departed from what the Applicant had in fact said during the hearing as well as from what appeared in the Applicant’s statutory declaration and that he had not claimed that he had friends here.
The Applicant submitted that the explanation for inconsistencies he gave in his July 2015 statutory declaration was that when his brother A arrived in Australia in 2001 he had not disclosed the true nature of the family composition and that the Applicant was afraid that if he told the truth his protection visa would be refused and that he and his brothers would be returned to Afghanistan.
Counsel for the Applicant submitted that the Tribunal’s reasons omitted any reference to a rational basis for inconsistencies, being the claim that the Applicant’s brother may have given false information in 2001 and that the Applicant feared revealing that falsehood. It was submitted that the natural inference to be drawn from this omission was that the Tribunal did not have regard to this evidence, as it would have been expected to refer to it had it done so. Issue was also taken with the fact that the Tribunal had not put to the Applicant at the hearing that he did not hold such fear for his brother A’s status or otherwise ask him about the evidence in his July 2015 statutory declaration.
While it was accepted that the Applicant’s oral evidence to the Tribunal regarding the reasons for inconsistencies in his evidence was not “expressed with precision”, it was also submitted that the Tribunal had erred in failing to seek any clarification from the Applicant as to his reason/s for inconsistent evidence, given the significance of this issue to the Tribunal’s reasoning.
These matters were said to disclose that the Tribunal’s adverse credibility finding was made without proper consideration of the Applicant’s explanations, that the Tribunal had misunderstood the Applicant’s evidence and had failed to consider a critical aspect of it in circumstances where it had not sought clarification on a critical point. This was said to constitute either a failure to afford procedural fairness or a failure to conduct a review as required.
In oral submissions counsel for the Applicant explained that it was submitted that there were various ways in which the Tribunal had erred. First, it was submitted generally that the Tribunal “was to act fairly in making its credibility findings” and that it had not done so. The Tribunal was said to have acted unfairly in failing to consider the Applicant’s explanation for the inconsistencies and to have unreasonably misconstrued or misunderstood the position put by the Applicant.
The Tribunal’s asserted failure to address the explanation given by the Applicant in his July 2015 statutory declaration was also said to amount to a failure to consider a substantial, clearly articulated argument as considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321 and a failure to conduct the review. In addition, it was submitted that as the Tribunal had misunderstood the explanation provided by the Applicant it had fallen into error of the nature considered in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309. Further, the asserted failure by the Tribunal to consider the explanation for inconsistencies provided in the Applicant’s July 2015 statutory declaration (insofar as it referred to the fact that a brother who had been here since 2001 had given inaccurate family composition information) was said to be an error of the kind described in SZRKT. This explanation was said to be evidence that bore on a critical issue (being the Tribunal’s rejection of the Applicant’s claim based on past events) as it bore on the Applicant’s credibility and could have provided an explanation for the inconsistent evidence.
The Tribunal’s asserted error in stating that the Applicant had claimed at the hearing that he had friends in Australia was said to be indicative of the Tribunal’s failure to consider or to actively engage with the Applicant’s explanation.
The contention that the Tribunal erred in not asking for clarification of the Applicant’s initial oral explanation at the hearing was said to be an aspect of the overall failure by the Tribunal to approach the making of the credibility finding with the procedural fairness required.
Counsel for the Applicant referred to two extracts from the transcript of the Tribunal hearing in support of ground 4 (at pages 5 and 10). These extracts and other parts of the transcript are discussed below.
The First Respondent understood ground 4, as pleaded, to involve an assertion that the Tribunal had erred in making its adverse credibility finding by not properly considering the reasons given by the Applicant for the inconsistencies in his evidence or in failing to seek clarification of his explanation.
It was contended that the Applicant had given two main reasons to the Tribunal regarding his decision to give untruthful evidence about his brother, namely that he had been told not to disclose his brother in pursuit of a favourable migration outcome and that (as he stated at the hearing) his lack of education and life experiences had affected his memory.
The First Respondent submitted that the explanations provided by the Applicant at the Tribunal hearing as recorded by the Tribunal were not inconsistent with his July 2015 statutory declaration, but simply added context to his concern that an unfavourable migration outcome may result from disclosure of his brother in Australia when his brother had given untruthful evidence about the family composition.
The First Respondent also submitted that even if the Tribunal had considered the explanations given by the Applicant were inconsistent, it was under no obligation to invite him to provide further evidence or to clarify the evidence he had given (see SZOBC v Minister for Immigration and Citizenship [2010] FCA 712; (2010) 116 ALD 147 at [21]-[30]). Nor was the Tribunal required to put to the Applicant that it may not accept the evidence he had given (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]).
In response to the Applicant’s oral submissions, the solicitor for the First Respondent expressed some difficulty identifying a relevant inconsistency (insofar as the Applicant’s explanations referred to the fact that he had a brother here and claimed that he was advised not to disclose he had a brother here, presumably because it would adversely affect his migration outcome). It was also submitted that there was no material difference between the Applicant’s written and oral explanations, insofar as both indicated that he was prepared to lie about his family composition to achieve a positive migration outcome for himself and his family. The First Respondent contended that the crux of the Tribunal’s credibility concern in para.27 of its reasons was its view that if the Applicant was willing to lie to reach a better migration outcome for himself and his family, then there was no reason to think that he would not do so in relation to his protection claim.
The First Respondent submitted that insofar as the Applicant contended that there was a factual error in the Tribunal’s reasoning regarding where his friends were, this was not such as to establish jurisdictional error. It was contended that what was relevant was that the Applicant claimed he had been given advice by others (whether before or after he left Afghanistan or in Australia) and had been told not to say he had a brother. Whether the friends were located in Australia was said not to be of any significance in relation to the Tribunal’s credibility concerns and findings.
Consideration
I bear in mind that credibility findings are not immune from challenge on recognised grounds, such as a failure to afford procedural fairness and as otherwise discussed by the Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [36]-[38]. However, as stated in SZRKT (per Robertson J at [77]), the issue of whether a credibility finding is affected by jurisdictional error is a “case specific inquiry”.
In order to consider this ground it is necessary to have regard not only to paragraphs 3 and 4 of the Applicant’s July 2015 statutory declaration and to para.27 of the Tribunal’s reasons as set out above, but also to what occurred at the Tribunal hearing.
The Applicant’s July 2015 statutory declaration was sent to the Tribunal by email of 31 July 2015. Interestingly, neither in that statutory declaration or the accompanying July 2015 submission did the Applicant claim to fear harm based on past events (although the Tribunal nonetheless considered that issue). Further, on their face paragraphs 3 and 4 of the statutory declaration sought to explain only false evidence about the Applicant’s family composition.
The Tribunal hearing was on 3 August 2015. The Applicant’s oral evidence was given through an interpreter. No issue has been taken with the accuracy of the translation of what was said by the Applicant.
Relevantly, at pages 4 to 5 of the transcript of the hearing, the Tribunal questioned the Applicant about his background, including where he was born and where he had lived in Afghanistan. After the Applicant claimed he had been born in Kabul, moved elsewhere in Afghanistan, lived in Pakistan, returned to Afghanistan and lived in Kabul from “2011 or something” (sic) (transcript, page 4), the Tribunal referred to the fact that in his statement (which, seen in context, was clearly a reference to his July 2015 statutory declaration) he had said that he returned to Kabul in 2009. The Applicant agreed.
The Tribunal then put to the Applicant that in his first statutory declaration (of 23 November 2012) he had said that he grew up and lived in Kabul his entire life and that this was “very different” to his oral evidence. At that stage there had been no discussion in the hearing of the Applicant’s family composition or of the basis for his claims to fear harm based on past events. The Applicant responded (transcript, page 5):
Applicant (through interpreter): I just want to say something for a minute.
Tribunal: Yes.
Applicant: Ah when I went to Afghanistan (sic) and then we came all the way here by boat so we would have some friends during the way and then when my brother was here before.
Ah when you were just um sometimes siting (sic) and talking to each other like how we were to go here I was told that don’t say your brothers (sic) there then don’t let him, don’t let yourself to him because ah you may be getting deported back.
Due to that I said something like ah which was not true but whatever I say now is all true and all has gone into my life. (emphasis added)
The Applicant submitted that the Tribunal had erred in failing to seek clarification of this explanation for giving untrue evidence which was said to differ from the explanation he had provided in his July 2015 statutory declaration. It was contended that in para.27 of its reasons the Tribunal had misunderstood the Applicant’s evidence, insofar as it recorded that he had said that “when he left Afghanistan he had friends and a brother here and he was told not to say he had a brother”. However, as the First Respondent submitted, the Tribunal understood, relevantly, that the Applicant was told not to say he had a brother here, as he (the Applicant) may be deported (which he had also claimed in his July 2015 statutory declaration).
Relevantly, at the hearing the Tribunal then returned to the issue of where the Applicant had lived, asking, “So you’re saying that you went to Kabul in 2009”. It then asked the Applicant to tell it about his immediate family members and where they resided. Subsequently, (transcript, page 6) the Applicant admitted that he did not a have a brother Ali who had been born in 1998 (as he had claimed in his application). He simply stated “my old application is...almost…like wrong” and claimed that he wanted “to tell…the exact what the right truth things now” (sic) (transcript, page 6 line 3).
However, the Tribunal’s understanding of the Applicant’s explanation for inconsistencies in his evidence about matters critical to his claims, that is, where he had lived and who operated the real estate business and whether his father was harmed (the inconsistencies referred to in para.27 of the Tribunal reasons) is also to be seen in light of what occurred when, later in the hearing, the Tribunal asked the Applicant to tell it “about this real estate agency business”. After claiming that it was his brother who ran the real estate agency and was threatened by the Taliban and who arranged for him to come to Australia (transcript, pages 7 to 8), the Applicant volunteered a different account of the whereabouts of those who gave him advice not to tell the truth, stating (transcript, page 8):
And then my brother found someone like with through his friends or someone like a smuggler or someone to take me to (sic) dangerous life here.
Ah when I got here so I didn’t have contact with him I didn’t know if he did or didn’t so about three months in detention centre.
Because that ah I was so frustrated and so worried and upset because of this situation while I was in detention and people frightened me of this is the consequences if you say this and finally you will get deported back to Afghanistan and kill (sic) and that’s why there was some wrong information in my application.
And then ah after that in here I knew that my brother maybe through that man who took me here or with someone else with my father and younger sister had left the country. (emphasis added)
It is possible that at this point the Applicant may have been referring to the brother who was said to operate the real estate agency. In any event, while somewhat lacking in clarity, the crux of this explanation remained a claim that the Applicant acted on the advice of others not to tell the truth, that this had something to do with a brother in Australia and that he feared that if he told the truth about this aspect of his real estate agency claim he would be deported.
Moreover, as it recorded in para.27 of its reasons for decision, during the hearing the Tribunal put to the Applicant for comment inconsistencies in his claims about the real estate agency business (the claims which were critical to his claim to fear the Taliban because of past events). Indeed in this way it sought clarification from the Applicant of his earlier explanations for inconsistencies in his evidence. This exchange occurred at transcript, page 10:
Tribunal: Okay in your statutory your first statutory declaration you said that um it was you and your father who had opened the shop.
That these men these men have been coming to the shop and you had seen them.
Applicant: No I was with my brother and this all was told to me by my brother.
Tribunal: And also your father had been gone to the shop and then he disappeared.
Applicant: Ah no, it was my brother and my brother kept it all [inaudible] what I say to you now.
Tribunal: Did, did, you told the delegate the department when you interviewed the delegate that your father has been taken?
Applicant: Father?
Tribunal: Yes.
Applicant: When?
Tribunal: When you were interviewed by them.
Applicant: I think I might have said.
Tribunal: I mean you just presented incredibly inconsistent claims to this tribunal and to the Australian government.
Applicant: Ah, I want to say to whatever I say before was wrong was different so I just want to say whatever really past into my life now.
And all this because of this life in Australia in Afghanistan is quite different.
And for me alike a as an uneducated person I have been in a country that – [inaudible].
A very at eight or six years old when I was in Kabul sometimes when I was sitting at home I remember that sometimes rockets were hitting our house.
A as a young child when I have gone through all this difficult situation that I have seen just war and – [inaudible] killing and torturing in Afghanistan and nothing else and then taking this long while a definitely affects my memory and my mind.
Ah all my life ah I have spent all my life in in like in like waiting and in situation and torturing in bad situations and all this horror experiences.
Ah so since I have been to Australia I can check my back ground I haven’t done anything wrong even I haven’t gone through a red light once and I have been paying tax to Australian government.
I have worked from the time I was very young and I was always trying to work.
Ah so all my life I have just worked like a slave hard worker I haven’t been to school I’m not well educated like to, to know everything or to say everything properly.
Ah you can check the background all of my brothers they are separate from each other we separate we live separate totally separate from each other except [S] three others we are all working paint we are all painters so I don’t know if [S] has got the work right yet or not, but you can check we haven’t done anything wrong. (Errors and hesitations in transcript)
Notably, in this part of his explanation to the Tribunal the Applicant referred only to issues arising from his upbringing in Afghanistan.
The various ways the Applicant submitted the issues raised in ground 3 could be characterised must be considered in the light of all this evidence.
First, as the Applicant submitted that the Tribunal made a factual error in suggesting that he had told it that when he left Afghanistan he had friends and a brother here. In his July 2015 statutory declaration the Applicant declared that prior to his arrival in Australia he and his brother F (with whom he came to Australia) were told by “friends” that if he disclosed the relationship with their brother A (who came to Australia in 2001 and who had not disclosed the true nature of the family composition) this would cause problems for the family. It appears that the claim was that such friends were also en route to Australia. However not only was the whereabouts of the friends not of significance, but also the inconsistencies in the Applicant’s evidence about his family composition were not inconsistencies on matters critical to his claims. The matters of concern to the Tribunal were the inconsistencies in the Applicant’s evidence on matters such as where he had lived in Afghanistan, whether his father or a brother operated the real estate agency and was threatened in 2013 and whether anyone in his family had been harmed.
It is the case that at the Tribunal hearing (transcript, page 5) the Applicant first appeared to claim that he had received advice from friends (albeit on the way to Australia) not to say that he had a brother here (as he had claimed in his July 2015 statutory declaration) and that he had been advised that he may be deported and that this explained why some things that he had said were untrue in fear of deportation.
At page 8 of the transcript, in the context of discussing the real estate agency claim, the Applicant instead appeared to suggest that he was given advice not to tell the truth by people who were in detention with him in Australia. However in critical respects this was not inconsistent with the earlier written explanation for also not disclosing the true composition of his family (including the fact that he had a brother here who had not disclosed the true nature of their family composition) or his initial oral claim that he was told not to say he had a brother here in responding to the Tribunal’s concern about inconsistency in his claim about where he had lived. Further and as the Tribunal recorded, when inconsistencies on critical matters were put to the Applicant for comment he gave an explanation (at page 10 of the transcript) that referred to his upbringing in Afghanistan.
What is clear from the Applicant’s explanations for the inconsistencies in his evidence about critical aspects of his claims referred to in para.27 of the Tribunal reasons, is that the Applicant claimed he was advised (by friends, whether in Afghanistan, on the way here or in Australia) that if he told the truth, in particular that he had a brother here, his application may be refused and he would be returned to Afghanistan (see e.g. the July 2015 statutory declaration para.4; transcript, page 5 lines 10 to 11; and transcript, page 8 line 22). Whether this advice was given in Afghanistan, en route to Australia or in detention is not to the point. Even if the Tribunal made a factual error about the Applicant’s evidence as to where his friends were (despite his explanation at page 8 of the transcript) or there was an inconsistency in the Applicant’s evidence about where his friends were, the Tribunal’s concerns regarding the Applicant’s credibility were fundamentally based on the fact that he had given highly inconsistent evidence about critical aspects of his claims (not simply his family composition, the matter addressed in his July 2015 statutory declaration) and was willing to make false claims to achieve a favourable migration outcome. The whereabouts of the friends who advised him was not of any significance in this respect.
Further, as the First Respondent submitted, having regard to all the Applicant’s evidence, it was open to the Tribunal to understand that the Applicant claimed that he had a brother here when he left Afghanistan and that he was told not to disclose this. What was of significance in relation to the Tribunal’s credibility finding was the fact that the Applicant had acted on advice not to tell the truth about where he had lived and worked and his real estate agency claims and not to say he had a brother here. As the Tribunal indicated, the Applicant’s evidence in support of his claims to fear harm was “highly” inconsistent and the explanations he provided gave rise to a concern about his willingness to make false claims to the Australian government (including at a time when he was represented). Further, when given the opportunity to explain the material inconsistencies, the Applicant’s ultimate explanation only addressed the impact on him of life in Afghanistan and the effect on his memory. The Tribunal considered this general explanation for inconsistencies.
The Tribunal understood and considered the material aspects of the explanations for significant inconsistencies. When considered in the context of the Applicant’s claims and the explanations given, I am not satisfied that the Tribunal overlooked or misunderstood the Applicant’s evidence in a manner constituting jurisdictional error or fell into error in any of the other ways contended for by the Applicant.
The general assertion that there was a failure by the Tribunal to afford a fair hearing to the Applicant appears to involve a contention that the Tribunal should have put to the Applicant that he did not hold the fear articulated in paragraphs 3 and 4 of his July 2015 statutory declaration or that it should have asked him to clarify his oral explanation/s. This contention was put on the basis that the explanation in the July 2015 statutory declaration was that the Applicant was concerned about the status of his brother A, who had permanent residence but who had not disclosed the true nature of their family composition. However it is not apparent that concern that his brother A had not told the truth about their family composition in 2001 was proffered as an explanation for the Applicant’s inconsistent evidence about matters other than his family composition, such as where he had lived and worked before he left Afghanistan in 2012 or relevantly, in relation to the real estate agency claim, which was said to have arisen in 2012. This was after his brother A left Afghanistan. Further, the Tribunal put to the Applicant the fact he had presented “incredibility inconsistent claims” after he had proferred various explanations for failures to tell the truth and gave him an opportunity to comment. It considered that comment.
Contrary to the Applicant’s contention, this is not a case in which it has been established that in failing to address the written explanation for a failure to tell the truth the Tribunal failed to consider a “substantial clearly articulated argument” in the sense referred to in Dranichnikov or to conduct the review. The Applicant’s explanation in his July 2015 statutory declaration was not clearly articulated, except insofar as it involved a claim that he feared if he told the truth his protection visa application would be refused and he and his brothers would be returned to Afghanistan. Nor is it clear that it related to a matter critical to the Applicant’s claims. In terms this explanation addressed the Applicant’s family composition. In any event, at the hearing the Applicant claimed he was told not to say his brother was here (in the context of explaining that he had been told not to tell the truth). The Tribunal understood this. The Tribunal’s failure to refer expressly to the suggestion that the Applicant feared that he (or he and his brothers) may be deported if he disclosed a brother’s presence in Australia (in circumstances where his brother had previously not disclosed his true family composition) is not such as to reveal a failure by the Tribunal to consider the Applicant’s case as ultimately presented to it (see Dranichnikov at [23]). Relevantly, it is clear that the Tribunal understood that the Applicant’s explanation for inconsistent evidence involved a contention that he made untrue claims to achieve a positive migration outcome. It also considered his explanations in relation to the difference between life in Afghanistan and Australia, the impact of the war on him and his lack of education and prior travel experience.
Nor is this a case in which there was a fundamental misunderstanding of the Applicant’s explanation for critical inconsistencies in a manner that contributed to an adverse credibility finding in the sense considered in Gill. The explanation for a failure to tell the truth provided in the July 2015 statutory declaration related to false claims about family composition. Even if it was intended to be a more general explanation, illogicality (in the sense considered in SZMDS and Gill at [72]) was not been established. On the evidence before the Tribunal a logical or rational decision maker could have come to the same conclusion in this respect (cf SZMDS at [135]). It was reasonably open to the Tribunal to make an adverse credibility finding on the material before it based on the fact of significant inconsistent evidence about where the Applicant had lived and worked and about the real estate agency claims and an explanation or explanations that involved an admitted willingness on the part of the Applicant to make false claims to achieve a favourable migration outcome.
Insofar as the Applicant’s contention is that the Tribunal should have sought clarification in relation to the various explanations he gave for inconsistent evidence, the Tribunal put the issue of inconsistencies in his evidence to the Applicant for comment during the hearing after he had volunteered earlier explanations for his failure to tell the truth (see SZBEL at [47]). It was not obliged to seek a further clarification of his explanations or responses or to invite comment on its thought processes. Inconsistencies do not constitute “information” within s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 at [18]). Nor was the Tribunal obliged to put to the Applicant that it may not accept the explanations that he had given for inconsistencies (see SZBEL at [48]).
Further, this is not a case in which the Tribunal’s failure to refer expressly to each aspect of the explanations given by the Applicant for various aspects of his inconsistent evidence amounts to a failure to consider critical relevant evidence in the sense considered in SZRKT, having regard to the lack of cogency and centrality in the aspects of the explanations to which the Tribunal did not refer expressly.
Ground 4 is not made out on any of the bases contended for by the Applicant.
However as ground 1 is made out the matter should be remitted to the Tribunal for redetermination.
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 3 August 2018
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