CRK15 v Minister for Immigration
[2018] FCCA 1475
•20 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRK15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1475 |
| Catchwords: MIGRATION – Amended application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the First Respondent refusing to grant the Applicant a Protection (Class XA) visa – whether the Tribunal made a finding of jurisdictional fact without any evidence giving rise to jurisdictional error – held that Tribunal did not make a finding of jurisdictional fact without any evidence – whether the Tribunal made a finding that was illogical or irrational giving rise to jurisdictional error – held that the Tribunal did not make a finding or decision that was illogical or irrational – whether the Tribunal failed to give the Applicant a meaningful opportunity to give evidence and present arguments on the issues arising in relation to the decision under review – whether the Tribunal failed to carry out its function under s.425 of the Migration Act 1958 (Cth) (“the Act”) – held that the Tribunal performed its statutory task under s.425 of the Act – amended application for judicial review dismissed – Applicant ordered to pay costs of First Respondent. |
| Legislation: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), art 1A Migration Act 1958 (Cth), ss.36, 425 |
| Cases cited: Ali vMinister for Immigration & Anor [2018] FCCA 121 Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 77; (2005) 228 CLR 470 |
| Applicant: | CRK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2768 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 14 March 2018 |
| Date of Last Submission: | 14 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondents: | Mr Grant of Sparke Helmore Lawyers |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Applicant’s amended application for judicial review filed on
1 February 2018 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2768 of 2015
| CRK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision concerns an amended application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 18 November 2015, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on
29 May 2014 refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). The Tribunal’s decision is at Court Book (“CB”)
226-238.
The material before the Court is as follows:
a)
the Applicant’s amended application for judicial review filed on
1 February 2018;
b)the affidavit of Sanmati Verma filed on 1 February 2018;
c)the Applicant’s Outline of Submissions filed on 1 February 2018;
d)the affidavit of Sanmati Verma filed on 15 February 2018;
e)the Minister’s Response filed on 23 December 2015;
f)the Minister’s Outline of Submissions filed on 3 November 2017;
g)
the Minister’s Supplementary Submissions filed on
27 February 2018; and
h)the Court Book.
The Applicant is a citizen of Pakistan (CB 20) who arrived in Australia on 4 February 2009 as the holder of a student visa (CB 21). On
5 February 2013, the Applicant was granted a further student visa
(CB 21).
On 6 August 2013, the Applicant lodged his application for the Protection (Class XA) visa (CB 1-64). The principal basis of the Applicant’s claim for a well-founded fear of persecution was the Applicant’s fear of being targeted by the Taliban for his imputed political opinion based on his involvement with the Awami National Party (“ANP”) and its aligned student group, the Pukhtoon Student Federation (“PSF”). The Applicant also made specific claims about an attack on him that occurred on 27 April 2013 as a result of his political activities, which the Applicant says was the catalyst for him fleeing to Australia. The Applicant set out his claims in a Statutory Declaration dated 1 August 2013 and submitted with the visa application
(CB 104-107), which, in summary, are as follows:
a)the Applicant was born in Buner, Khyber Pakhtunkhwha Province (“KPK”), Pakistan, and identifies as a Pashtun and a Muslim Sunni (CB 104);
b)the Applicant joined the PSF in 2002 while studying at Aisha Bawany College in Karachi, Pakistan (CB 105). In 2003, the Applicant joined the Government College of Commerce and Economics in Karachi, Pakistan, and continued his involvement in the ANP and the PSF working as an advisor, visiting students and teaching students about the aims of the ANP (CB 105). The Applicant was harassed by the Islamic Jamiat Tulba Party and All Pakistan Muhajar Student Organisation, who opposed the Applicant’s political work and were aligned with extremist groups and criminal gangs (CB 105);
c)in 2007, the Applicant returned to his village and continued to contribute time and money to the ANP during the lead up to a National Election that was to take place in 2008 (CB 105). The Applicant’s involvement included hanging up posters, handing out leaflets, speaking with people about the ANP and attending public forums with ANP leaders (CB 105). The Applicant’s involvement in the 2008 election campaign caused him problems as the Taliban would make threats against ANP members, supporters and leaders and became more influential in the area following the election (CB 105). The Applicant felt that it was dangerous for him to remain in the area and decided to come to Australia as a student (CB 105);
d)in 2011, the Applicant returned to Pakistan and spoke with members of the ANP about returning to the party and standing as a candidate for the ANP (CB 105). However, the Applicant wished to complete his education first and so returned to Australia, continuing to make financial contributions to the ANP and communicate with its members (CB 106);
e)in 2013, the Applicant returned to Pakistan to assist the ANP with an election campaign (“the 2013 election campaign”) (CB 106). The Applicant’s involvement included attending rallies, accompanying ANP leaders to mosques, recruiting voters, fundraising, advising for the ANP and making speeches (CB 106). Due to the Applicant’s involvement with the ANP, the Applicant again began receiving warnings from the Taliban who told the Applicant that he must stop campaigning or he would be killed (CB 106). On 27 April 2013, the Applicant was shot at by two men at the mechanics and he heard one of the men say that the Applicant should take the threats against him by the Taliban seriously (“the April 2013 attack”) (CB 106). The Applicant escaped and hid at a college near the mechanics and then fled to Islamabad for a few days before returning to Australia (CB 106);
f)if the Applicant is forced to return to Pakistan he will be seriously harmed or killed by the Taliban due to his political involvement with the ANP and association with “the West” (CB 106). The Pakistani authorities are unable and unwilling to protect the Applicant as the Taliban are more powerful than the Pakistani authorities and, in many instances, collaborate with the Pakistani authorities to perpetrate harm (CB 107). The Applicant cannot relocate within Pakistan as the Taliban has strong networks throughout the country (CB 107); and
g)the Applicant suffers from Post-Traumatic Stress Disorder (“PTSD”) for which he is currently receiving treatment (CB 107). If forced to relocate from Australia, the Applicant would not be afforded adequate medical attention and would be vulnerable to harm (CB 107). The Applicant has no support networks or property in any other areas in Pakistan (CB 107).
On 30 April 2014, the Applicant’s legal representative provided further documentation to the Tribunal (CB 137), including a medical certificate from DHQ Hospital Daggar Buner (CB 138), a translated Certificate of Participation in a polio eradication program in 1995/1996 (CB 139), a translation of an ANP poster (CB 140), a medical certificate from Coburg Family Medical Centre dated 7 May 2013
(CB 141), and a National Police Certificate dated 3 October 2013
(CB 142).
On 29 May 2014, a delegate of the Minister (“the Delegate”) refused to grant the Applicant the visa (CB 147-164).
Tribunal Proceedings
On 17 June 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision, enclosing a copy of the decision
(CB 165-171). On 10 June 2015, the Applicant was invited to attend a hearing before the Tribunal on 21 July 2015 (CB 180-181).
On 16 July 2015, the Applicant’s legal representative lodged a submission in support of the Applicant’s application for review
(CB 186-213) and a medical certificate from Coburg Family Medical Centre dated 14 July 2015 (CB 214).
The Applicant attended the Tribunal hearing on 21 July 2015 and gave evidence and made submissions with the assistance of an interpreter in the Pashto and English languages and his legal representative
(CB 216-218).
The Applicant was given an opportunity to make further written submissions to the Tribunal by 28 July 2015 (CB 218) and did so
(CB 219-221).
Tribunal Decision
The Tribunal identified the issue on review as follows (CB 228 at [9]):
9. The issue in this case is whether the applicant has been politically involved, as claimed, and whether, on return to Pakistan, he would face a real chance or a real risk of harm .For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal then proceeded to set out the Applicant’s claims by first noting the Applicant’s personal details and that (CB 228 at [11]):
11. [The Applicant] claims to have been a member of the student wing of the ANP and then of the ANP, and to have assisted with elections.
The Tribunal then extracted in full the Applicant’s Statutory Declaration dated 1 August 2013 (CB 228-230 at [12]) and summarised the documents provided to the Tribunal as follows (CB 230 at [13]-[15]):
13. The applicant’s representative provided documents from the applicant. These included a medical certificate from the HW Hospital in Brno, a certificate for the applicant for participation in the national day of prevention from polio, 1995/1996, a poster of the ANP party including translation, and a letter from [Clinical Senior Social Worker], family therapist and clinical counsellor, Clinical Senior Social Worker, dated 7 May 2013, which stated that the applicant presented with severe symptoms of depression and anxiety, and the assessment highlighted that he had symptoms of PTSD as a result of receiving calls from Taleban threatening his life.
14. The applicant provided three money transfers, from himself in Australia, to his brother in Pakistan.
15. The applicant provided his Pakistani passport and identity card, as well as his Victorian drivers licence.
The Tribunal considered the Applicant’s claims that he suffered from PTSD and the assessments of a Clinical Senior Social Worker of Coburg Family Medical Centre (CB 141, 214), that the PTSD was a consequence of threats the Applicant had received from the Taliban in Pakistan. In relation to the mental health of the Applicant, the Tribunal concluded the following (CB 231-232 at [24]):
24. On the basis of the evidence before me I accept that the applicant suffers from insomnia, palpitations, difficulty in concentrating and forgetfulness. However, I note that he has been prescribed medications for this since April 2013, and has been attending therapeutic sessions with [the Clinical Senior Social Worker] regularly. He has also continued work as a taxi driver and then as a security guard. I do not accept on the evidence before me that the applicant has been diagnosed with depressions, anxiety or PTSD, and I consider that he has received treatment including medication and therapeutic sessions. I accept that the symptoms recorded by the Doctor in Pakistan may be symptoms consistent with one or more of these diagnoses, but that is all. I specifically reject, on the evidence before me, that these symptoms are a result of the claimed attack, or that these symptoms explain my credibility concerns below.
The Tribunal then addressed the general approach to the question of the Applicant’s credibility and said the following (CB 232 at [28]):
28. This case raises considerable credibility concerns. The applicant’s evidence contained significant inconsistencies and implausibilities, the most significant of which I have set out here, which lead me to have considerable concerns with that evidence.
Under the heading “Political involvement”, the Tribunal commenced its consideration by stating as follows (CB 232 at [29]):
29. The applicant gave unconvincing and vague evidence in relation to his political involvement with PSF and ANP. In addition, he has provided some documentary evidence in an attempt to establish his involvement, but there are considerable difficulties with the evidence he has provided, and he has not satisfactorily explained why he cannot produce an ANP membership card despite claiming to be a member.
The Tribunal described the Applicant’s evidence in support of his claim that he had been actively involved with the PSF in Karachi from 2002 until his return to KPK in 2007 as “vague and undetailed”
(CB 232 at [30]). With respect to the Applicant’s evidence about his involvement with the ANP, including the Applicant’s claim that he assisted in the 2013 election campaign, the Tribunal said as follows (CB 233 at [34]):
34. I noted to the applicant that his evidence in relation to his political involvement was vague and undetailed. I noted that he claimed to have been actively involved with the PSF and ANP for a considerable period of time. I noted that he claimed to have discussed potentially running as a candidate for the ANP. His description of what he did and what he would speak to students about, and then his involvement with the ANP in KPK indicates to me that the applicant is not recounting his experiences but repeating general information he is aware of about the PSF and ANP.
The Tribunal then noted “[f]urther concerns” with the Applicant’s evidence, which led the Tribunal to doubt the Applicant’s claimed involvement with the PSF and the ANP (CB 234 at [36]). The Tribunal’s concerns were as follows (CB 234 at [37]-[42]):
a)the fact that the Applicant did not have a membership card for the ANP, despite the Applicant’s claim that he had been and was still a member of the ANP (CB 234 at [37], [39]);
b)
the Applicant’s lack of involvement in the ANP in Australia
(CB 234 at [39]); and
c)the Applicant’s provision of copies of money transfer receipts sent to the Applicant’s brother in Pakistan, which the Applicant claimed were funds intended for the ANP (CB 234 at [40]-[41]).
The Tribunal set out the evidence of the Applicant in response to questions from the Tribunal Member about the Applicant’s involvement in the ANP in Australia as follows (CB 234 at [38]):
38. I asked if he had joined the ANP in Australia. He said he had not, he knew the guys working here but didn’t join to be honest. As he had already joined in Pakistan. I asked if he attended meetings of the ANP in Australia and he said he had not, sometimes he would go to gatherings or they would have a celebration or religious festival and come together and at that time have celebrations.
The Tribunal’s reasoning and findings regarding the Applicant’s claims about his political involvement in the PSF and the ANP generally is then set out in the following extract (CB 234-235 at [42]):
42. When I raised my concerns with his evidence about his political involvement, he said that this was because of his health position, he is not stable. I noted to him that I had to assess on the evidence before me, and I had concerns I had raised with his claims that his mental health issues were responsible wholly or partly for his deficiencies in evidence. I have had regard to the letters above which detail the applicant’s mental health. I am aware that the applicant complained of insomnia, difficulty in concentrating and forgetfulness to the Doctor in Pakistan, but I do not accept that this explains the concerns above. Further, he has received treatment in Pakistan and Australia for these symptoms, and has been able to continue working in Australia. The applicant was able to give very detailed information about other aspects of his claims, and he claims to have been involved with the student wing of the ANP, and then the ANP, for a considerable number of years, yet he is not able to provide more than general and undetailed information, and was unable to talk meaningfully about what he had done and said as an active member. When I consider this with the applicant’s poor documentary evidence – one poster which could easily have been obtained, and some money transfers which do not, I find, indicate what he claims they do, that he was contributing financially to the ANP, his lack of involvement with the ANP in Australia and his implausible explanation for why he does not have an ANP membership card, I have reached a positive state of disbelief that the applicant has had any involvement with the PSF or ANP. I find that the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support.
The Tribunal then considered the Applicant’s claims regarding the April 2013 attack under the heading “Claimed attack on 27 April 2013” (CB 235). The Tribunal noted that at the Tribunal hearing the Applicant gave a detailed account of the claimed attack
(CB 235 at [43]). The Tribunal then contrasted this with the evidence given by the Applicant at the interview with the Delegate by stating the following (CB 235 at [43]):
43. …However, at the delegate interview, his responses were found to be rehearsed, limited to the phrasing used in his written statement and did not include the level of detail expected of someone who experiences such an event. He was unable to explain how he had escaped from the attackers. I noted to the applicant that I had concerns that he may have rehearsed his responses for the hearing.
The Tribunal noted the explanations the Applicant gave for the limited evidence given in relation to the April 2013 attack at his interview with the Delegate and stated that it did not find the Applicant’s explanations plausible (CB 235 at [44]-[46]).
Consequently, the Tribunal rejected the Applicant’s claim that he was attacked on 27 April 2013, stating the following (CB 235 at [47]):
47. On the basis of my concerns with his evidence at the departmental interview, and independently on the basis of my findings that the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support, I find that the applicant was not attacked on 27 April 2013 or at any time.
The Tribunal then considered the Applicant’s claims to fear harm on return to Pakistan by reason of his political opinion; his status as a failed asylum seeker or returnee from a Western country; and his mental health and found that there was no real risk that the Applicant would be significantly harmed for those reasons (CB 236 at [48]-[51]). The Tribunal then considered country information (CB 237 at [52]-[54]) and found that there was also no real chance or real risk of the Applicant being seriously or significantly harmed on return to Buner, KPK on that basis (CB 237 at [55]).
For the reasons set out earlier in its decision record, the Tribunal found that the Applicant did not satisfy the criterion set out in ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) (CB 238 at [59]-[60]). As the Tribunal was also satisfied that there was no basis upon which it could be said that the Applicant was a member of the same family unit as a person who did satisfy ss.36(2)(a) or 36(2)(aa) of the Act for the purpose of the Applicant satisfying ss.36(2)(b) or 36(2)(c) of the Act, the Tribunal found that “…the applicant [did] not satisfy the criterion in s.36(2) [of the Act]” (CB 238 at [61]), which the Applicant was required to do in order to justify a grant of the visa.
Judicial Review
In his amended application for judicial review filed on
1 February 2018, the Applicant identified three grounds for judicial review. At the hearing on 14 March 2018, Counsel for the Applicant informed the Court that the Applicant wished to withdraw the third ground.
Ground One
The Applicant’s first amended ground of judicial review (“Ground One”) is as follows:[1]
[1] Amended Application for Judicial Review filed by the Applicant on 1 February 2018, 3.
1. The decision of the Tribunal was affected by jurisdictional error in that the decision was based on a finding for which there was no evidence before the Tribunal, or alternatively, a finding which was irrational.
Particulars
a) The Tribunal at [38], [39] and [421 relied on the applicant’s failure to join the Awami National Party (‘ANP’) in Australia and his supposed lack of involvement in the ANP in Australia in reaching a finding that the applicant had not had any involvement with the ANP or PSF and had not been a member or supporter of the ANP or PSF.
b) There was no evidence before the Tribunal that the ANP was active in Australia.
c) There was no evidence before the Tribunal that it was possible to join the ANP in Australia when already a member in Pakistan.
This ground of judicial review has two components. The first component is what is often referred to as the “no evidence rule”. The second component alleges that the findings of the Tribunal were irrational or illogical.
Component 1: No Evidence Rule
Turning to the first component of Ground One, it is to be noted that the Applicant describes the jurisdictional error as “…a finding for which there was no evidence before the Tribunal…”. This is to be rejected as a basis for jurisdictional error, as a finding for which there is no evidence may give rise to an error of law but not necessarily give rise to jurisdictional error.
Relying on the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 (“SGLB”), the Minister submits that for an applicant to establish that the Tribunal fell into jurisdictional error by making a finding based on a “no evidence” ground, it must be a finding in relation to a jurisdictional fact (see SGLB at [39]). I agree with this proposition as it reflects the preferred approach on the present state of authorities. It is appropriate to consider why this is so.
The no evidence rule was articulated in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 (“SFGB”), where the Full Court of the Federal Court of Australia said the following (at [19]-[20]):
[19]…If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357…
[20] On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; (2016) 242 FCR 65 (“Buchwald”), Bromberg J said
(at [33]-[39]):
33. The reasons for decision of Kenny J in SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at [38] disclose what appear to be two approaches in the authorities to the “no evidence” ground. A number (there cited) suggest that jurisdictional error lies where the decision-maker “makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding.” One of the cases her Honour cited, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19], has been many times relied upon for that proposition. On the other hand, a number of authorities (again, set out in SZNKV at [38]) stand broadly for the proposition that, for jurisdictional error to lie, the fact in support of which there is no evidence must be a jurisdictional fact. However, Kenny J expressly did not determine “whether these two approaches co-exist” nor, if a choice had to be made between then, which was the preferred approach.
34. A number of High Court authorities seem to me to support the jurisdictional fact approach. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said this, at [39]:
To return to the first ground identified in the Federal Court, the “no evidence” ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a “no evidence” ground of jurisdictional error arises.
35. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Gummow A-CJ and Kiefel J said the following, at [31]:
In Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 at 514, 519–520, Wilcox J carefully, and with respect correctly, distinguished a “no evidence” ground respecting the existence of a jurisdictional fact, from the more debatable question (which does not arise in this appeal, as counsel for the first respondent stressed) of defective fact finding as an independent ground of judicial review, or as indicative of an “error of law” within the meaning of the AD(JR) Act.
36. One of Wilcox J’s observations in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, which Gummow A-CJ and Kiefel J approved in the above extract, was this (at 514):
All of the cases, of which I am aware, in which “no evidence” has been treated as a separate ground were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact … .
37. In Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [108], I expressed reservations as to the correctness of SFGB and the line of authority following it. That reservation was also expressed by Jessup J at [50].
38. Finally, in Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said this, at [46]:
The plaintiff also argues that there was no evidence that PNG would fulfil its assurances and would promote the maintenance of a programme which was fair to UMAs. However, there was no statutory requirement that the Minister be satisfied of these matters in order to exercise the relevant power. They do not qualify as jurisdictional facts ([SGLB] (2004) 78 ALJR 992 at 998-999 [39]; 207 ALR 12 at 21; [SZMDS] (2010) 240 CLR 611 at 622 [31]).
39. Especially in the light of what was said in the last-mentioned case by a unanimous High Court, it seems that the jurisdictional fact approach is the preferred approach to the “no evidence” ground as a stand-alone ground of judicial review. And, Mr Buchwald accepted in the course of oral submissions that in order to establish a “no evidence” ground it was necessary that the fact of which there is no evidence be a jurisdictional fact…
Although Buchwald is a decision of a single Justice of the Federal Court of Australia, I am persuaded by the reasoning of Bromberg J in that case, who relies on more recent decisions of the High Court of Australia than the Full Court of the Federal Court decision in SFGB in concluding that a finding of fact for which there is no evidence will only amount to an error of law if that fact is a jurisdictional fact.[2]
[2] See AUG17 v Minister for Immigration & Anor [2017] FCCA 1874 at [70]; SZUYT vMinister for Immigration & Anor [2017] FCCA 174 at [29]; and Ali vMinister for Immigration & Anor [2018] FCCA 121 at [28].
At the hearing before this Court, Counsel for the Applicant referred to extracts from the decision of the High Court of Australia in Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321 (“Bond”) for the proposition that the no evidence rule can apply to both a finding of fact and an inference that leads to a finding of fact, which in turn constitutes the error of law (see Bond at 355-357). I agree that his Honour Mason CJ accepted that the making of findings of fact and the drawing of inferences that lead to the making of findings of fact in the absence of evidence are errors of law. However, his Honour did not address the question as to whether those errors of law amount to jurisdictional error in Australian law (see Bond at 356).
In SGLB, Gummow and Hayne JJ (Gleeson CJ agreeing) said the following (at [37]):
37. Further, s 65 of the Act provides that the Minister is to grant a visa sought by valid application “if satisfied” of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s 65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion. The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned[3]…
(Footnote in original)
[3] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 609 [183].
The “jurisdictional fact” which conditions the Tribunal’s exercise of power in a protection visa case is the satisfaction of the criterion specified in s.36 of the Act. Section 36 of the Act provides that an applicant for a protection visa must satisfy at least one of the criteria in sub-s.(2). The criterion specified in s.36(2) of the Act are that the visa applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee (s.36(2)(a) of the Act); or, the visa applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm (s.36(2)(aa) of the Act); or, the visa applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen who satisfies the criteria specified in ss.36(2)(a) or 36(2)(aa) of the Act (ss.36(2)(b)-(c) of the Act).
In Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”), Gummow ACJ and Kiefel J said the following (at [20]):
20. …The criterion for attraction of the jurisdiction of the decision maker in deciding an application under the Act for a protection visa is not expressed in terms of “fact” as simply understood. Rather, as explained earlier in these reasons, the Act fixes upon a criterion of “satisfaction” as to the existence of a certain state of affairs respecting the status of the applicant.
In Buchwald, Bromberg J relevantly referred to the principles enunciated by his Honour French CJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 (“Plaintiff M70/2011”) as follows (Buchwald at [40]):
40. …French CJ set out the relevant principles in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]:
The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.
(citations omitted)
At hearing, Counsel for the Applicant submitted that it is evident that the finding at the end of [42] of the Tribunal’s decision record was dispositive of the Applicant’s claim to fear harm on the basis of any political involvement with the ANP and/or the PSF. The relevant finding of the Tribunal is as follows (CB 235 at [42]):
42. …I have reached a positive state of disbelief that the applicant has had any involvement with the PSF or ANP. I find that the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support.
Consideration
I agree that the Tribunal’s finding that “…the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support” (CB 235 at [42]) was dispositive of the Applicant’s claim to fear harm on the basis of his political involvement with the ANP and/or the PSF.
The Applicant’s primary claim to fear persecution and/or significant harm if returned to Pakistan was his claim that he was actively involved in the PSF and then the ANP as a member and supporter and through his later involvement in political campaigns. In this context, I am satisfied that the Tribunal’s finding rejecting this primary claim of the Applicant (see [39] above) can be treated as a finding of “jurisdictional fact” for the purpose of the no evidence rule as it reflects the Tribunal’s lack of belief or satisfaction that the Applicant was involved in the ANP in Pakistan as the Applicant so claimed. This finding was critical to the Tribunal’s satisfaction that the Applicant did not meet the criterion in ss.36(2)(a) or 36(2)(aa) of the Act.
At hearing, Counsel for the Applicant submitted that the Tribunal’s reasons make it clear that this finding about the Applicant’s political involvement, or lack thereof, was based on the cumulative effect of four inferences that the Tribunal had drawn from the evidence that was before it. Those four inferences were identified by Counsel for the Applicant as follows:
a)the lack of detail in the Applicant’s evidence regarding what he had done as an active member of the ANP;
b)the poor documentary evidence;
c)the lack of involvement the Applicant had with the ANP in Australia; and
d)the implausible explanation for the Applicant not having an ANP membership card.
I do not agree that these were inferences the Tribunal drew from the evidence before it. For example, the Tribunal’s finding that the Applicant’s evidence about his political involvement was vague and undetailed (CB 232 at [30]) is not an inference drawn from the evidence but, rather, a finding about the deficiencies in the Applicant’s evidence about his primary claim to fear persecution. I am prepared to accept, however, that these were four findings upon which the Tribunal reached its positive state of disbelief regarding the Applicant’s primary claim to fear persecution. The findings, however, were not themselves findings of jurisdictional fact.
In order to satisfy the Court that the Tribunal’s reference to “…[the Applicant’s] lack of involvement in the ANP in Australia”
(CB 234 at [39]) can be impugned on the basis of the no evidence rule, the Applicant must satisfy the Court that, first, there was no evidence at all to support this finding and, second, that the finding was so integral to the Tribunal’s finding of jurisdictional fact that without this finding the Tribunal would not have reached its state of satisfaction with respect to the Applicant’s claims to fear persecution.
In MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 (“MZZYE”), Murphy J relevantly said as follows (at [54]):
54. Third, the appellant’s contention that there was “no evidence” for the Tribunal’s conclusions in respect of these two matters is untenable. As Weinberg J noted in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587;[2005] FCA 1707 at [575] the “no evidence” ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”. The learned authors Aronson and Groves in Judicial Review of Administrative Action (Fifth Edition at 246, [4.600]) suggest that the “no evidence” ground “cuts out when even a skerrick of evidence appears”.
Both Counsel for the Applicant and Counsel for the Minister in these proceedings relied on the same extracts from the transcript of the Tribunal hearing for the purpose of making contrary submissions to the Court regarding the question as to whether or not there was evidence or material before the Tribunal to justify its finding regarding the Applicant’s lack of involvement with the ANP in Australia.[4]
[4] The transcript of the Tribunal hearing on 21 July 2015 is annexed to the Affidavit of Ms Sanmati Verma filed on 15 February 2018 (Annexure SV-1).
The relevant extract from the transcript of the Tribunal hearing on
21 July 2015 commences as follows:[5]
[5] Affidavit of Ms Sanmati Verma filed on 15 February 2018, Annexure SV-1 at p.15 l.5-20.
[Tribunal Member]: Did you join the ANP in Australia?
[Applicant]: No. I know the guys who are working here (indistinct) here and - but I didn’t join it, to be honest.
[Tribunal Member]: Why not?
[Applicant]: Because I did join in Pakistan, so I don’t have to join again and again. I am able to contact the people who are working here.
[Tribunal Member]: So did you attend any meetings of the ANP in Australia or - in that time?
[Applicant]: Not anything, but sometime we have a celebration when we’ve been (indistinct) from somewhere, like (indistinct) or this and that, or whether we have a religious festival which has happened just a couple of days before, so we come together on that time. We had a celebration.
The Tribunal Member then asked the Applicant questions regarding his trip to Pakistan in 2011. Noting that the Applicant then returned to Australia, the Tribunal Member asked as follows:[6]
[6] Ibid p.15 l.45-p.16 l.15.
[Tribunal Member]: Did you have any involvement with ANP Australia in this period?
[Applicant]: Yes, I did (indistinct)
[Tribunal Member]: Sorry, what kind of involvement?
[Applicant]: The same, making (indistinct) for the 14th, when the election is coming. So - - -
[Tribunal Member]: Sorry, in Australia or Pakistan?
[Applicant]: The same, both areas - Pakistan or here as well. Like, we mostly - we met, we send money to Pakistan from here.
Counsel for the Applicant characterised this evidence given by the Applicant at the Tribunal hearing as evidence that the Applicant socialised with other ANP supporters in Australia; that they met together on occasions of festivals and other celebrations; and that they sent money to Pakistan for the ANP’s election campaigns.
Counsel for the Applicant then submitted that the inference regarding the Applicant’s lack of involvement with the ANP in Australia was premised on two presumptions. Those presumptions were, first, that it was possible for a person who had claimed to have already joined the ANP in Pakistan to again join the ANP in Australia and, second, that the ANP was in fact active in Australia such that the Tribunal could draw an adverse inference from the Applicant’s failure to join in the ANP’s activities in Australia, presuming that there were any. Counsel for the Applicant argued that there was no evidence before the Tribunal for either of those presumptions because it was not part of the evidence of the Applicant at the Tribunal hearing, nor was it contained in country information identified by the Tribunal in its decision record.
Counsel for the Minister submitted in reply that it is implicit from the Applicant’s evidence given at the Tribunal hearing that the ANP existed in Australia as an organisation and that it was therefore possible for the Applicant to join. Counsel for the Minister further submitted that the Applicant’s evidence was that he simply decided not to join the ANP again as he had already joined in Pakistan but that the Applicant was able to contact the people who were working here, that is, the people working with the ANP in Australia.
I agree with the characterisation made by Counsel for the Minister of the evidence given by the Applicant to the Tribunal. Reading the relevant extracts from the transcript as a whole, it is evident that the Tribunal Member was exploring with the Applicant whether he was involved with the ANP in Australia. When the Tribunal Member asked the Applicant whether he joined the ANP in Australia, the Applicant did not respond by saying that there is no ANP in Australia or that the ANP does not exist as an organisation in Australia. Rather, the Applicant gave evidence that he “know[s] the guys who are working here”
(see [47] above). In my opinion, in context, this is a reference by the Applicant to those persons involved in the ANP in Australia. The Applicant then gave evidence that he did not join “it”. The word “it” clearly refers to the ANP in Australia and is, therefore, premised on the fact that the ANP exists as an entity in Australia. The Tribunal Member then explored further with the Applicant his involvement in the ANP in Australia. The evidence given by the Applicant was to the effect that he was not involved in the ANP per se but socialised with those involved in the ANP in Australia.
Accordingly, I find that there was evidence or material before the Tribunal to justify its finding about the Applicant’s lack of involvement with the ANP in Australia.
This finding on its own therefore disposes of Ground One of the Applicant’s amended grounds of judicial review so far as it is based on the no evidence rule.
However, in the event it is necessary to consider whether, in the absence of the Tribunal’s finding about the Applicant’s lack of involvement with or in the ANP in Australia, the Tribunal would have reached its state of satisfaction with respect to the Applicant’s claims to fear persecution, I am satisfied that the Tribunal’s positive disbelief that the Applicant was involved in the ANP in Pakistan, as claimed by the Applicant, would not have changed.
My view is based on the fact that the Tribunal’s disbelief or lack of satisfaction arose primarily from its concerns about the Applicant’s vague and undetailed evidence regarding his involvement in the ANP and the PSF in Pakistan. The Tribunal rejected the Applicant’s explanations for the deficiencies in his evidence about his political involvement in the ANP and the PSF on the basis of the Applicant’s mental health. The inability of the Applicant to produce a membership card for the ANP, the question of money transfer receipts the Applicant claimed to have sent to his brother in Pakistan to financially contribute to the ANP, and the Applicant’s “lack of involvement in the ANP in Australia” were expressed as “further concerns” (CB 234 at [36]) that the Tribunal had with the Applicant’s evidence. In my opinion, it is evident that the Tribunal treated these matters as additional concerns to its primary concern that, in the context where the Applicant claimed to have been heavily involved with the PSF, to have been an active member and supporter of the ANP, to have assisted the ANP with campaigns and elections, and to have been a potential candidate for the ANP, the Applicant’s evidence about his involvement in both organisations was limited, vague and lacking in detail.
This primary concern is also evident from the way in which [42] of the Tribunal’s decision record is expressed (CB 234-235 at [42]). The Tribunal notes that the Applicant was able to give very detailed information about other aspects of his claims but was unable to provide more than general and undetailed information or talk meaningfully about his involvement with the ANP. The Tribunal then goes on to state the following (CB 235 at [42]):
42. …When I consider this with the applicant’s poor documentary evidence…his lack of involvement with the ANP in Australia and his implausible explanation for why he does not have an ANP membership card, I have reached a positive state of disbelief that the applicant has had any involvement with the PSF or ANP.
(Emphasis added)
In my opinion, the three matters the Applicant identifies as a basis for the Tribunal’s finding or reaching a state of satisfaction with respect to the Applicant’s claims to fear persecution on the basis of his political involvement, that is, the inability of the Applicant to produce a membership card for the ANP, the question of money transfer receipts the Applicant claimed to have sent to his brother in Pakistan to financially contribute to the ANP, and the Applicant’s “lack of involvement in the ANP in Australia”, were, in reality, no more than three additional concerns to the Tribunal’s primary concern about the Applicant’s vague evidence and inability to talk meaningfully about his involvement with the ANP and the PSF in Pakistan.
Accordingly, the first component of Ground One of the Applicant’s amended grounds of judicial review cannot succeed.
Component 2: Illogicality
In oral submissions, Counsel for the Applicant submitted that it is self-evidently illogical to expect somebody to join an entity in a country that he had already claimed to be a member of and to then, in turn, draw an inference that his failure to do so supported a finding that he had never been involved in that entity anywhere else in the world. Counsel for the Applicant further submitted that a logical connection is also lacking between the asserted lack of the Applicant’s involvement with the ANP in Australia and a subsequent finding that the Applicant had, therefore, never been active with the ANP in Pakistan. Counsel for the Applicant submitted that the Tribunal’s finding regarding the Applicant’s lack of involvement in the ANP in Australia was a critical finding that led to the Tribunal not being satisfied that the Applicant feared persecution for a Convention reason (see Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), art 1A).
In oral submissions, Counsel for the Applicant referred to the judgment of Gummow ACJ and Kiefel J in SZMDS where their Honours stated the following (at [51], [53]):
51. …The absence of the logical connection between the evidence and the reasons of the RRT’s decision became apparent when the RRT assumed that a homosexual would be fearful of returning to Pakistan without there being any basis in the material to found this assumption or to counter the possibility that the sexuality of such a person could be concealed from others in the short period of return to the country…
…
53. To decide by reasoning from the circumstances of the visits to the United Kingdom and Pakistan that the first respondent was not to be believed in his account of the life he had led while residing in the UAE was to make a critical finding by inference not supported on logical grounds. The finding was critical because from it the RRT concluded that the first respondent was not a member of the social group in question and could not have the necessary well‑founded fear of persecution.
Relying on these extracts from the joint judgment of Gummow ACJ and Kiefel J in SZMDS, Counsel for the Applicant submitted that the progression of their Honours’ reasoning is apt to describe the illogicality in this case on the basis that the Tribunal relied on the presumption that it was possible to be actively involved in the ANP in Australia, without any logical basis for that presumption on the evidence before it, to subsequently find that the Applicant had not been involved at all in the ANP in Pakistan.
Counsel for the Minister submitted in reply that, firstly, the Tribunal’s reasoning was not as narrow as the Applicant sought to posit. Counsel for the Minister further submitted that the Tribunal made a finding, on the basis of the Applicant’s evidence summarised in [38] of the Tribunal’s decision record (CB 234 at [38], extracted in full at [19] above), regarding the Applicant’s involvement in the ANP in Australia. Secondly, Counsel for the Minister submitted that it was implicit in the evidence given by the Applicant at the Tribunal hearing
(see [47]-[48] above) that it was possible to join the ANP in Australia.
Counsel for the Minister submitted that the Tribunal’s reliance on, amongst other matters, the Applicant’s lack of involvement in the ANP in Australia does have a logical connection to the Tribunal’s finding that the Applicant had no involvement in the ANP at all. Counsel for the Minister pointed out that the Applicant claimed to have been active in the ANP in Pakistan, despite being aware of the dangers of doing so, and claimed to have been heavily involved in the ANP’s activities each time he returned to Pakistan. Thus, Counsel for the Minister argued that the question of whether the Applicant would take steps to be actively and formally involved with the ANP whilst in a safe and democratically open country would be relevant to the question of whether the Applicant was so politically motivated that he would be involved in the ANP in Pakistan notwithstanding the known dangers and risks of that association.
Consideration
In SZMDS, Crennan and Bell JJ said at [135]:
135. …Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
In SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 (“SZWCO”), Wigney J relevantly summarised the principles in relation to illogicality as follows (SZWCO at [63]-[66]):
63. Second, it is clear from the judgment of Crennan and Bell JJ in SZMDS that not every lapse in logic will give rise to jurisdictional error. If particular findings or reasoning “on the way” to the ultimate decision are challenged on the basis of illogicality and irrationality, it must be shown that the finding was not one that could have been made by, or reasoning that could not have been employed by, a reasonable or rational person. Emphatic disagreement does not suffice. If the finding of fact or reasoning employed was a finding or reasoning upon which reasonable minds might differ, it cannot be concluded that the finding or reasoning was illogical or irrational. As Robertson J put it in SZRKT (at [148]):
In my opinion, the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.
64. Third, whilst the inquiry may not be limited to the question whether the end result is illogical or irrational, it does not follow that the ultimate decision will be found to have been affected by jurisdictional error if it can be shown that any finding made, or any reasoning employed, by the decision maker on the way to that ultimate decision may have been illogical or irrational. If the impugned finding or reasoning was immaterial to the ultimate decision, it is difficult to see how the decision could be said to have been affected by jurisdictional error: cf. SZRKT at [158]; SZOCT (per Nicholas J at [83]-[84]). Likewise, if the ultimate decision was supported by other findings that were open on the evidence, and other reasoning that was logical and rational, there may be no proper basis for concluding that the ultimate decision was so infected by the impugned finding or reasoning as to involve jurisdictional error.
65. It is not desirable, and perhaps not possible, to come up with a single test or form of words to determine or describe when some illogical or irrational fact-finding or reasoning on the way to arriving at the ultimate decision can be said to sufficiently infect the final decision so as to constitute jurisdictional error. Each case and each decision must be considered having regard to the particular facts and circumstances of the case. Ultimately, it will depend on the nature and degree of the illogicality or irrationality involved.
66. An example, apposite to this case, may assist in illustrating this point. Many decisions of the Tribunal ultimately turn on findings about the honesty and credibility of the review applicant. If the Tribunal finds that the review applicant was not a credible witness and had falsified or exaggerated the claims that provided the basis for the claim that they had a well-founded fear of persecution, or were at risk of significant harm, it is likely to be open to the Tribunal to find that it was not satisfied that the review applicant was a non-citizen to whom Australia owed protection obligations. Often an adverse credibility finding is based on a number of facts and circumstances. If one of the findings, or the Tribunal’s reasoning based on that finding, could be said to be illogical or irrational, it does not necessarily follow that the Tribunal’s ultimate decision was affected by jurisdictional error. If the degree and nature of the illogicality or irrationality was not significant, and other facts and circumstances found by the Tribunal were capable of logically and rationally supporting the adverse credibility finding, or even that reasonable minds might differ based on those matters, it could not be concluded that the adverse credibility finding was illogical or irrational. Nor could it be found that the Tribunal’s decision that it was not satisfied that the visa applicant was a non-citizen to whom Australia owed protection obligations involved jurisdictional error.
The decision in SZWCO was approved by Griffiths and Moshinsky JJ in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 (“Gill”) where their Honours said as follows (at [82]):
82. …In other words, this is not a case where illogical findings of fact were not material to the Tribunal’s ultimate conclusions (see Wigney J’s helpful analysis in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [60] to [67], relating to inter alia adverse credibility findings which are based on a range of matters, only some of which are illogical or irrational).
(Emphasis in original)
I reject the characterisation made by Counsel for the Applicant of the Tribunal’s reasoning for its finding that the Applicant had not been involved in the ANP or the PSF in Pakistan (see [62] above). Firstly, it cannot be said that the Tribunal expected the Applicant to have joined the ANP in Australia when he was already a member of the ANP in Pakistan. There was no such expectation expressed by the Tribunal about this. Firstly, the Tribunal asked the Applicant whether he had joined the ANP in Australia and the Applicant gave the evidence as summarised in [38] of the Tribunal’s decision record (CB 234 at [38]) (see [19] above for full extract; [47]-[48] above for relevant extracts from transcript of Applicant’s evidence). Secondly, it is incorrect to assert, as the Applicant has, that the Tribunal drew an inference that the Applicant’s failure to join the ANP in Australia supported a finding that the Applicant had never been involved in the ANP in Pakistan. The Tribunal’s reference to the Applicant’s lack of involvement in the ANP in Australia logically arose from the evidence summarised by the Tribunal at [38] of its decision record (CB 234 at [38]). It is to be noted that this evidence included other matters in addition to the Applicant’s decision not to join the ANP in Australia. Thirdly, it is also incorrect to assert, as the Applicant has, that the Tribunal reasoned from the Applicant’s lack of involvement in the ANP in Australia that the Applicant had also never had any involvement in the ANP or the PSF in Pakistan. The Tribunal’s reasoning extended beyond the mere fact of the Applicant’s lack of involvement in the ANP in Australia. I refer to and repeat [56]-[59] of my reasons above.
I reject the Applicant’s further submission that it was illogical of the Tribunal to use a finding that the Applicant was not involved in political activities with the ANP in Australia to support a subsequent finding that the Applicant had also never been involved with the ANP or the PSF in Pakistan. Again, this argument put by the Applicant mischaracterises the Tribunal’s reasoning. I have earlier found that the Tribunal relied on four matters to reach its positive disbelief about the Applicant’s claims that he was actively involved in the ANP and the PSF in Pakistan (see [42] above). The primary reason was the Tribunal’s concern about the Applicant’s evidence in relation to his claimed involvement in those organisations. I refer to and repeat
[56]-[59] of my reasons above.
In circumstances where a decision or, as in this case, a state of satisfaction was reached by the Tribunal on the basis of other reasoning that was logical and rational, there may be no basis for concluding that the finding or state of satisfaction was infected by the impugned finding (see SZWCO at [64]). No complaint is raised by the Applicant regarding the other three findings of the Tribunal. Consequently, even if I had found that the Tribunal’s finding regarding the Applicant’s “lack of involvement in the ANP in Australia” was illogical, because of the other findings upon which the Tribunal reached its state of satisfaction that the Applicant did not meet the criterion in s.36 of the Act, I would not find that the decision of the Tribunal was affected by jurisdictional error.
Furthermore, I agree with the submission made by Counsel for the Minister that, having regard to the Applicant’s claims or integers of claim about the extent of his involvement in the ANP and commitment to political activity in Pakistan, it was not illogical for the Tribunal to have regard to any evidence about the Applicant’s involvement in the ANP in Australia. The relevance of the Applicant’s involvement in the ANP in Australia was perhaps something about which reasonable minds could differ, however, it cannot be said that the only conclusion to be drawn was that it was not relevant to the Tribunal’s statutory task on review.
I am therefore satisfied that the Tribunal’s state of satisfaction or finding about the Applicant’s primary claim to fear persecution by reason of his political involvement was open to the Tribunal on the evidence before it and that there was a logical connection between that evidence and the subsequent conclusions drawn by the Tribunal.
Accordingly, the second component of Ground One of the Applicant’s amended grounds of judicial review cannot succeed.
Consequently, I find that Ground One of the Applicant’s amended grounds of judicial review does not give rise to jurisdictional error.
Ground Two
The Applicant’s second amended ground of judicial review (“Ground Two”) is as follows:[7]
[7] Amended Application for Judicial Review filed by the Applicant on 1 February 2018, 3-4.
2. The Tribunal failed to conduct the review according to law, in that it failed to give the applicant a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars
a) The Minister’s delegate had criticised the applicant for giving insufficient detail as to the applicant’s claim to have been attacked by the Taliban in April 2013.
b) The applicant provided a detailed account of that event to the Tribunal.
c) The Tribunal found that the applicant had not been attacked in April 2013 as claimed, based on the applicant’s ability to provide more detail to the Tribunal than he could provide to the Minister’s delegate.
d) The ability of the applicant to give evidence and present arguments on issues arising from the decision of the delegate was therefore illusory and constituted a failure by the Tribunal to carry out its function under s425 of the Migration Act.
The Applicant’s submissions in relation to Ground Two are as follows:[8]
[8] Outline of Submissions filed by the Applicant on 1 February 2018.
a)the Applicant claimed that he was attacked on 27 April 2013 by two men when he was on his way to a mechanic, during the period the Applicant returned to Pakistan to assist in the 2013 election campaign, and that this incident was the catalyst for the Applicant fleeing to Australia;
b)the Delegate’s decision record discloses that the country information considered by the Delegate supported the Applicant’s claim about the April 2013 attack (CB 158). The Delegate weighed the Applicant’s evidence against the country information and found that because the Applicant’s evidence in the interview in relation to the April 2013 attack was limited and appeared rehearsed, the Delegate could not accept the Applicant’s claim that the attack occurred;
c)accordingly, the scope of the Applicant’s evidence about the April 2013 attack, particularly in relation to his ability to escape from the Taliban, was an issue the Delegate considered dispositive of the Applicant’s claim. It follows that, whatever other issues the Tribunal may raise on the review, the issue relating to the Delegate’s view of the Applicant’s evidence on the April 2013 attack will be an “[issue] arising in relation to the decision under review” within the meaning of s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) at [35]). In SZBEL, the High Court of Australia said the following (at [35]):
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.” That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
d)it is implicit in the right to give evidence and present arguments on the issues arising on review that the Tribunal will give fair consideration to any evidence and arguments so presented and will remain open to be persuaded by them (see Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] HCA 62; (2004) 221 CLR 1 (“Applicant NAFF”) (McHugh, Gummow, Callinan and Heydon JJ) at [27]; NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 77; (2005) 228 CLR 470 (“NAIS”) (Callinan and Heydon JJ) at [171]);
e)the Tribunal’s consideration of the Applicant’s evidence about the April 2013 attack (CB 235 at [43]-[47]) focused exclusively on the Applicant’s ability to provide a more detailed account of the attack before the Tribunal than the Applicant had previously provided to the Delegate. The Tribunal then failed to consider the Applicant’s evidence given at the Tribunal hearing. For example, the Tribunal failed to consider the veracity of the substance of the Applicant’s evidence given at the Tribunal hearing and its consistency with the Applicant’s other evidence and/or with country information, the Applicant’s ability to respond to questioning from the Tribunal, or any other aspect of the Applicant’s evidence; and
f)the Tribunal therefore did not afford the Applicant a meaningful opportunity to give evidence and present arguments about the April 2013 attack as required by s.425 of the Act. Consequently, this failure of the Tribunal gives rise to jurisdictional error.
At the hearing before this Court, Counsel for the Applicant referred to the evidence given by the Applicant at the Tribunal hearing to demonstrate that the Applicant did give detailed evidence. The relevant evidence commences where the Tribunal Member poses to the Applicant the question (in relation to the claimed April 2013 attack) “And what happened?”.[9] The Applicant’s evidence was then as follows:[10]
[9] Affidavit of Ms Sanmati Verma filed on 15 February 2018, Annexure SV-1 at p.20 l.40.
[10] Ibid p.21 l.1-p.23 l.15.
[Applicant]: Shocking one. It was (indistinct) up there at (indistinct) it was around 10 o’clock in the morning. My car was broken. My car was broken and I was trying to take it to the mechanic.
…
[Applicant]: And as usual I wake up early in the morning and tranquil - I was waiting for the mechanic but when (indistinct) the mechanic (indistinct) for a long time I was, like, thinking that someone is calling me, someone is calling me.
[Tribunal Member]: This is in your village?
[Applicant]: Yeah. It’s in my village when I was going towards the mechanic. But I ignore it all the time. Like, because all the time, every week, if someone is driving - if someone is riding a motorbike, so they are not - all they time they cover their face, so I don’t know what’s happening around me. Maybe because of when, because of dust, someone covered their face or - because no-one using helmet. It is usual here but not in Pakistan, which there maybe in the cities someone is using but not in the village, no-one is using helmet. So I was going (indistinct) to the mechanic and when I’m about to reach there, they fired on. I was sitting - I was just (indistinct) by myself. I was just - I was driving by myself and the fight from the other side - from the opposite side. So luckily I was safe.
When they inquired, I heard something that the girl was asking him, “You didn’t take us serious. You should die now,” and I ran - I ran (indistinct). Then I run and hide in the college, which is nearby this place, just one-minute walk or just, you know, the ‑ ‑ ‑
[Tribunal Member]: So explain to me, so you’re driving to the mechanic’s.
[Applicant]: Yeah.
[Tribunal Member]: And what happens? Did you get to the mechanic’s?
[Applicant]: Yes, on the (indistinct) nearby - nearby.
[Tribunal Member]: So did you get there or you didn’t get there?
[Applicant]: I didn’t get there.
[Tribunal Member]: Okay. So ‑ ‑ ‑
[Applicant]: But, like, I was about to get there.
[Tribunal Member]: You were about to get there?
[Applicant]: Yes.
[Tribunal Member]: And then what happened?
[Applicant]: There was two people on the bike. The one that was sitting at the back, he fired on me.
[Tribunal Member]: On a motorbike.
[Applicant]: Yes.
[Tribunal Member]: So where were you?
[Applicant]: I was in the car.
[Tribunal Member]: You were in the car.
[Applicant]: Yeah.
[Tribunal Member]: And where were they?
[Applicant]: He was on the opposite side. Like my friend Aziz is sitting over here.
[Tribunal Member]: So they shot at you into the car.
[Applicant]: Yes.
[Tribunal Member]: What happened then?
[Applicant]: I opened my door and fired down intentionally. Fired down intentionally, like, that they shot me intentionally. They shot me and then straightaway they run away. When I saw they are running on their motorbikes, so I run backwards. I run backwards to the bodies and I hide, you know, because it was Saturday but on Saturday in Pakistan we have no holidays so the (indistinct) and there was lots of women in there. Then I called my dad.
[Tribunal Member]: Yeah.
[Applicant]: Then I called my dad and he made the arrangement for me to take (indistinct) from there my home and then to the doctor. Then he made arrangement for me to send me to Islamabad. I was in Islamabad for a couple of days. I was (indistinct) I didn’t went outside, except when I was coming here.
[Tribunal Member]: Mm’hm.
[Applicant]: I was just hiding, hiding for three days because one of my relatives was studying at that time in Islamabad and, no, he didn’t work. He was (indistinct) at that time. He was doing MBA from college. So I stayed with him. When my time for the departure comes, I fly back from (indistinct)
[Tribunal Member]: They were next to your car?
[Applicant]: Yeah.
In oral submissions, Counsel for the Minister argued that when regard is had to [47] of the Tribunal’s decision record (extracted in full at [23] above), it is plain that:
a)the Tribunal did not reject the Applicant’s account of the April 2013 attack at the hearing because it enlarged on the evidence given by the Applicant at his interview with the Delegate. Rather, Counsel for the Minister submitted that the Tribunal rejected the Applicant’s claim that the April 2013 attack occurred on the basis of the limited account given by the Applicant of the attack at his interview with the Delegate;
b)the Court can infer from the statement in [43] of the Tribunal’s decision record, “…[a]t hearing the applicant gave a detailed account of the claimed attack…” (CB 235 at [43]), that the Tribunal did engage in the Applicant’s evidence; and
c)even if the Court were to find that there was an error in the Tribunal’s treatment of the Applicant’s evidence given at Tribunal hearing, there was an alternative basis for the Tribunal’s eventual finding, which is expressed at [47] of its decision record as follows (CB 235 at [47]):
47. …independently on the basis of my findings that the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support, I find that the applicant was not attacked on 27 April 2013 or at any time.
Consideration
In SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 (“SZSZQ”), Katzmann J said the following (at [70]-[71]):
70. The appellant’s contention, in essence, is that the Tribunal did not carry out the review required by s 414 of the Act because it failed to consider in any meaningful way a clearly articulated submission about a matter of substance.
71. If that contention is made out, then the Tribunal will have fallen into jurisdictional error: SZSSC. See also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088. One must always be alert to the possibility that a contention that an administrative decision-maker failed to give meaningful or “proper, genuine and realistic consideration” to an argument (see Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 at 292 per Gummow J) or, for that matter, a piece of evidence, might in truth be an invitation to engage in impermissible merits review (see Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339 at [45]). Yet, the Tribunal’s duty to consider the appellant’s arguments, and the material relied on in support, required that it engage in “an active intellectual process”: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [46]. The Minister did not argue otherwise. In this respect his position is consistent with that taken by the Minister in other cases, such as NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [37] and [171], Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [29], and more recently Carrascalao.
(Emphasis in original)
The Applicant’s submissions are largely in relation to evidence given by the Applicant at the Tribunal hearing. I am satisfied that the Tribunal did not engage in an active, intellectual evaluation of the Applicant’s evidence given at the hearing in relation to the April 2013 attack. The Tribunal simply noted that there was a difference between the amount of detail provided by the Applicant about the April 2013 attack at his interview with the Delegate and that provided at the Tribunal hearing. The Tribunal then rejected the Applicant’s explanation for his more limited evidence given at the interview with the Delegate (CB 235 at [43]-[44], [46]).
Reading the reasoning of the Tribunal at [43]-[44] of the decision record (CB 235 at [43]-[44]), one is left wondering precisely what evidence the Applicant gave at the Tribunal hearing. The failure of the Tribunal to even summarise the evidence given by the Applicant at the Tribunal hearing supports an inference that the Tribunal did not actively engage in that evidence.
Of course, the Tribunal was not required to engage in the assessment of the relevant evidence in any particular style or manner. This was for the Tribunal to decide. The difficulty is that the Tribunal did not engage in that evidence at all.
The Minister’s submissions (set out at [78] above) do not overcome the fact that the Tribunal did not engage at all with the Applicant’s evidence given at the Tribunal hearing regarding the April 2013 attack. Indeed, the Minister’s submission that the Tribunal rejected the Applicant’s claim that he was attacked in 2013 by reason of the limited evidence the Applicant gave at his interview with the Delegate reinforces the conclusion that the Tribunal did not properly engage with the Applicant’s evidence at the Tribunal hearing.
Furthermore, I do not accept that it can be inferred from the Tribunal’s statement at [43] of its decision record, “…[a]t hearing the applicant gave a detailed account of the claimed attack…” (CB 235 at [43]), that the Tribunal disclosed the requisite intellectual engagement with the Applicant’s evidence. The statement was immediately followed by a statement contrasting the evidence given by the Applicant at the Tribunal hearing with the Delegate’s findings about the evidence given by the Applicant at his interview. That is, it was, in reality, part of the Tribunal’s reasoning regarding its concern that the evidence given at the Tribunal hearing by the Applicant was more detailed than that given by the Applicant at his interview with the Delegate.
However, the Applicant’s claim that he was attacked in 2013 in Pakistan is directly connected with his claim that he was actively involved with the ANP in Pakistan and this is evident from the context in which the Applicant’s claim that he was attacked was made
(see CB 106).
In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (“MZYTS”), the Full Court of the Federal Court said (at [65]-[68]):
65. Here, the visa applicant’s contention has never been that the Tribunal failed to take into account a piece of evidence. Rather, it is that the Tribunal did not perform its statutory task, because it failed to determine the visa applicant’s claim…
66. The visa applicant’s contention is correct, and the learned Federal Magistrate was correct to so decide.
67. We consider this approach to be consistent with Yusuf, with SZJSS, with Kirk and with the principles outlined by Robertson J in SZRKT at [98] and [111].
68. In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.
(Emphasis in original)
The relevant question is not whether or not the Tribunal actively engaged with the Applicant’s evidence but whether the Tribunal performed its statutory task in determining the Applicant’s claim. The Applicant’s claim to fear persecution if he was returned to Pakistan was based on his claim regarding his active and ongoing involvement with the ANP in Pakistan prior to leaving Pakistan for Australia. The Tribunal dealt with this claim. In my opinion, the fact that the Tribunal failed to actively and intellectually engage with the evidence given by the Applicant at the Tribunal hearing about the April 2013 attack in Pakistan does not mean that the Tribunal failed to perform its statutory task. The evidence about the April 2013 attack in Pakistan depended upon the evidence about the Applicant’s claims to have been actively involved in the ANP in Pakistan. The Tribunal properly dealt with that claim (see [56]-[59] above).
I agree with the submission made by Counsel for the Minister that the Tribunal did not confine its consideration of the claimed April 2013 attack to the enlargement of the Applicant’s evidence at the Tribunal hearing. At [47] of the Tribunal’s decision record (CB 235 at [47], relevantly extracted at [78](c) above), the Tribunal made it plain that it rejected the Applicant’s claim that he was attacked in April 2013 because of its rejection of the Applicant’s claim he was an active member and supported of the ANP and the PSF in Pakistan.
Consequently, I find that Ground Two of the Applicant’s amended grounds of judicial review does not give rise to jurisdictional error.
Conclusion
For the reasons set out in this judgment, I will make an order dismissing the Applicant’s amended application for judicial review filed on 1 February 2018. I will also make an order that the Applicant pay the costs of the First Respondent in a fixed amount.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 20 June 2018
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