Cuf15 v Minister for Immigration
[2017] FCCA 921
•16 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUF15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 921 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – AAT affirmed delegate’s decision not to grant a Protection visa to applicant – applicant alleges jurisdictional error committed by AAT failing to properly consider country information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 Migration Regulations 1994 (Cth) |
| Cases cited: BZAHN v Minister for Immigration and Border Protection [2016] FCA 281 CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 Minister for Immigration and Border Protection v Singh [2016] FCA 575 |
| Applicant: | CUF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3494 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 June 2016 |
| Date of Last Submission: | 20 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams of Counsel |
| Counsel for the Respondents: | Ms P Blackadder |
| Solicitors for the Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 7 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3494 of 2015
| CUF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Pakistan aged 35 years, having been born on 4 September 1981.
By Amended Application filed in this Court on 7 June 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 11 December 2015 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 22 May 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
Further, the Applicant seeks both the costs of this application and a writ of prohibition restraining the First Respondent, his employees, officers, delegates or agents from acting upon or giving effect to the decision.
Background
The Applicant applied for a Protection visa on or about 15 January 2013, having arrived on Christmas Island on 9 August 2012 as an illegal maritime arrival.
Claims for Protection
In his Entry Interview conducted on 1 September 2012 and 2 November 2012 (Entry Interview) the Applicant claimed that he and his father were experiencing trouble from members of the Taliban. He described a situation in which people with whom he was travelling in a vehicle were targeted by members of the Taliban, resulting in casualties. The Applicant also claimed to have been receiving telephone calls which delivered threats from an unknown caller who had his personal details.
In his Statutory Declaration of 12 January 2013 (Statutory Declaration) which formed part of his Protection visa application the Applicant made the following factual claims:
a)He was born in the village of Nastikon in Parachinar within the Kurram Agency and when he was approximately 1 year old his family moved to Parachinar city.
b)He belonged to the Turi tribe and was an observant Shia Muslim. He regularly attended his local mosque in Parachinar.
c)In 2007, the security situation in Parachinar rapidly deteriorated. There was intense fighting between the Taliban and the Shia population of the region. Many were killed and properties were burned and destroyed. Since then, the Taliban had blocked all the routes to Parachinar, starving the city of supplies. The Taliban were constantly terrorising Turi Shias. There were executions and beheadings, people’s limbs were cut off and there were regular suicide bombings.
d)The Applicant and his father owned a fabric shop in Parachinar city and the Applicant had to travel to Peshawar and Lahore to source supplies for the shop. This travel for business was extremely dangerous.
e)In February 2012, the mini-bus on which the Applicant was travelling from Peshawar to Parachinar was targeted by the Taliban. A road-side bomb exploded and caused the bus to overturn. Two of the passengers were killed and the Applicant’s friend sustained head injuries, although the Applicant himself was not badly injured.
f)Another incident “really shook” the Applicant. A large suicide bombing took place in Kurram Bazaar in February 2012. The Applicant was very close to being caught up in the bombing and a friend he was with in the bazaar was killed in the explosion.
g)From 2010, the Applicant also began receiving threatening phone calls 2-3 times a month, which he believed were from Taliban supporters. The callers knew his name and address and would say that they knew he was a Shia from the Kurram Agency and that they wanted to catch up with him. They would sometimes say that if they saw him in Peshawar or Lahore they would kill him.
h)After February 2012, the Applicant decided to leave Pakistan. His wife and four children remained in Parachinar.
Relevant Criteria and Law Applicable to Protection Visa Application
The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 at [34]-[41] as follows:
[34] The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[35] A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[36] Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:
A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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; ...
[37] A person who is not a citizen of Australia is a “non-citizen”.
[38] Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).
[39] The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).
[40] Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
[41] The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].
Decision of Delegate
The Applicant attended an interview with the Delegate on 24 October 2013.
By her Decision Record of 22 May 2014 the Delegate refused to grant the Applicant a Protection visa as he was not satisfied that Australia had protection obligations to the Applicant under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The Delegate did not accept that the Applicant was ever personally targeted by the Taliban but did find that the Kurram Agency, which is one of seven Federally Administered Tribal Agencies in the north-west of Pakistan covering an area of approximately 3,380 square kilometres, was a dangerous place and was satisfied that there was a real chance that the Applicant would be seriously harmed if he returned to it.
Nevertheless, the Delegate found that the Applicant could reasonably relocate to an urban centre outside of the Kurram Agency, such as Islamabad or Rawalpindi. Therefore the Delegate was not satisfied that there would be a real chance of the Applicant being persecuted for a Refugees Convention reason if he returned to Pakistan and also found that he was not satisfied that there was a real chance that the Applicant would suffer significant harm if he returned to that country. Accordingly, the Applicant was not owed protection obligations under either s.36(2)(a) or 36(2)(aa) of the Act.
Decision of Tribunal
The Applicant applied to the Tribunal on 4 June 2014 for review of the Delegate’s decision. By letter dated 3 December 2015 the Applicant’s migration agent provided a detailed submission to the Tribunal. On 8 December 2015 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of his migration agent.
The Tribunal in its Decision Record at [5]-[12] set out the Applicant’s various claims and evidence in considerable detail and recorded that in assessing the Applicant’s claims to fear harm in Pakistan it had:
a)considered the Applicant’s oral and written evidence provided to the Department;
b)listened to the CD Rom recording of the Applicant’s interview with the Delegate on 24 October 2013; and
c)read the migration agent’s submissions and relevant independent evidence referred to by the migration agent and obtained by the Tribunal itself as well, including as required the relevant Department of Foreign Affairs and Trade reports.
The Tribunal accepted that the Applicant was a national of Pakistan and that he was involved in two bombing incidents in February 2012. However, the Tribunal did not accept that the Applicant received telephone messages from the Taliban, that he was a subject of any adverse interest from the Taliban at the time he left Pakistan or that he would be of any adverse interest to the Taliban upon his return. The Tribunal was not satisfied that there was a real chance that the Applicant would suffer serious harm upon his return to Pakistan. It considered that neither of the bombing incidents were specifically aimed at the Applicant but rather were of a random nature.
Then at [28]-[42] of its the Decision Record, the Tribunal considered, referred to and footnoted a large body of country information both identified by the Applicant’s migration agent and by the Tribunal itself. The Tribunal indicated that it had discussed with the Applicant the independent country information which, in its view, suggested that there had been a significant improvement in the security situation in Parachinar and that the number of incidents had declined.
The Tribunal accepted that at the time the Applicant left Pakistan in 2012, the area in Parachinar and its surrounding district was the subject of considerable violence and that until relatively recently there would have been for this reason a real chance of serious harm to a Shia, Turi Pashtun from Parachinar. Nevertheless, more current independent country information indicated that there had been a considerable stabilisation in the Parachinar region in 2014 and 2015 and that the Department of Foreign Affairs and Trade’s Thematic Report on Shias in Pakistan dated 14 April 2015 (DFAT Report) had advised that a truce had taken place in the Kurram Agency and was still in place as at November 2014.
At [38] of the Decision Record the Tribunal recorded that the UNHCR Report on a mission to Kurram Agency had said, consistently with the DFAT Report, that general peace had been restored in Upper Kurram and Lower Kurram.
In the result the Tribunal expressed this view at [42] of its Decision Record as follows:-
The Tribunal accepts that there continues to be clashes between militants and the security forces and there have been occasional incident (sic) in which civilians have been killed or injured. The Tribunal also accepts that the applicant is recognisable as a Shia Turi from Parachinar. However, as stated above, there have been significant changes in the security situation in Parachinar since the applicant's departure some three and a half years ago, and since he made his application to the Department. The Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant will be targeted by the Taliban, or any other extremist groups or individuals if he returns to his home area of Parachinar. The Tribunal also does not accept that there is a real chance, given evidence of significantly reduced attacks and civilian vehicles using the Thall-Parachinar Road, that there is a real chance that the applicant will be harmed either when returning to Parachinar on the Thall-Parachinar Road or if he continues to travel on that road upon his return to Parachinar. The Tribunal is satisfied that there have been significant changes in the security situation since the applicant left Pakistan and he will be able to resume his business and travel on the road from Parachinar to other parts of Pakistan, including Peshawar and Lahore. The Tribunal is also satisfied that the applicant will be able to continue to practise his religion in the manner he chooses and is not satisfied that he will have to modify his religious practice, as has been submitted by the representative.
A further late claim by the Applicant that he feared harm as a failed asylum seeker who might be thought by the Taliban to have changed his religion to become Christian was also rejected by the Tribunal at [43]-[45] of its Decision Record.
At [46]-[47] of its Decision Record the Tribunal considered whether Australia had protection obligations under the complementary protection provision in s.36(2)(aa) of the Act. For the same reasons as its rejection of the Applicant’s claim for protection under the Refugees Convention provision in s.36(2)(a), it found that it was not satisfied that there was a real risk that the Applicant would face significant harm upon his return to Parachinar including arbitrary deprivation of life, torture, cruel or inhumane treatment or punishment or degrading treatment or punishment.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a Protection visa.
Application by Applicant to Tender and Rely Upon New Evidence
At the hearing, Mr Jay Williams of Counsel, who appeared for the Applicant, sought to tender and rely upon country information, namely the Federally Administered Tribal Areas Research Centre Security Report First Quarter 2016 (January-March) (new FATA Security Report), which I had marked “MFI1”. The document does not appear to bear a date, but necessarily must have come into existence subsequent to 31 March 2016 and therefore more than three months after the decision of the Tribunal. It was a document that the Tribunal did not have before it and could not have taken into account in coming to its decision. Ms Blackadder, who appeared for the Minister, objected to the tender on the basis of relevance.
I decline to admit the new FATA Security Report. This is because it is not open for an Applicant in a proceeding seeking judicial review of an administrative decision to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal or another decision maker. Fresh evidence cannot be admitted in this Court in order to establish that an opposite result would have been reached if that new evidence had been available to the Tribunal: Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 per Marshall J.
In this Court the function of judicial review is to ascertain whether there is any legal error which vitiates the decision of the Tribunal. The Tribunal as the primary decision maker has the responsibility for determining questions of fact and the merits of the application for review on the materials which it has before it: see MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J; SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [56]-[57] per Greenwood J; SZJBD v Minister for Immigration and Citizenship (2008) 102 ALD 622 at 626 [24] per Siopis J; MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J and Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [51] and [58] per Edelman J.
Of course, post-Tribunal evidence in relation to a question of law as distinct from a question of fact, or alleged bias or procedural unfairness, may be an exception to this rule and may be admitted, depending upon the particular circumstances, as the above authorities indicate.
In the context of this case, the only purpose for the tender of the new FATA Security Report is to attempt to demonstrate that the independent country information considered and relied upon by the Tribunal was either wrong or obsolete.
This is not a legitimate course. In NAHI v Minister for Immigration and Indigenous and Multicultural Affairs [2004] FCAFC 10 (NAHI) the appellant applicants for a protection visa sought to rely on country information which detailed developments in relation to the peace process in Sri Lanka since the relevant Tribunal’s decision, in an attempt to demonstrate that the peace process was more likely to fail than the Tribunal had found. The Full Court of the Federal Court of Australia comprised of Gray, Tamberlin and Lander JJ held that this was impermissible, stating at [15] as follows:
The appellants’ submission is tantamount to saying that the Tribunal was wrong on the facts, and the Court should correct its factual error… Subsequent events cannot be used to falsify its finding.
Accordingly, I refuse the tender of the new FATA Security Report.
Grounds of Attack on Tribunal Decision in this Court
At the core of the Applicant’s attack on the Tribunal’s decision is the contention that the Tribunal committed jurisdictional error in its evaluation and findings concerning the country information which it referred to and considered in reaching its decision. In particular, it was submitted that the Tribunal erred by finding a stabilisation of the security position in the Kurram Agency since the Applicant had left Pakistan. It was submitted that the Tribunal’s decision was affected by jurisdictional error arising from a lack of probative evidence or logical connection between its findings and the material in the country information upon which it relied.
The Grounds of the Amended Application filed in this Court on 7 June 2016 are as follows (numbering sequentially corrected):
Ground 1: Insufficient logical or evidentiary basis for the decision
1. The decision by the second respondent was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the finding and the material upon which it relied to make that assessment
Particulars
Personal Details
2. At [1] of the decision record, the applicant is an ethnic Pashtun, Shia Muslim of the Turi tribe from Parachinar in the Kurram Agency of the Islamic Republic of Pakistan (Pakistan). AT [5], the applicant is married and his wife and four children, born between 2004 and 2012, reside in Pakistan. The applicant was employed in his own business in the Noor Market in the New Hassan Cloth Shop from 1989 to May 2012. He stated on the application form that he attended school from 1985 to 1989. He stated that he speaks and reads Pashto and Urdu.
Protection Claims
3. At [17], the applicant has claimed that he has a well founded fear of harm as a result of his Shia religion; his Turi ethnicity; his actual or imputed political opinion against the Taliban and/or the TIP and/or other extremist Sunni groups and/or sympathisers on account of, cumulatively or separately, his profile as a Turi Shia Muslim from the Kurram Agency; and his time spent in Australia as an asylum seeker. It is also submitted that he is a membership of a particular social group of persons from the Turi tribe and/or Parachinar Shias. Following the hearing, it was also submitted that the applicant fears he may be considered as having converted to Christianity due to his presence in Australia and application for asylum.
Jurisdictional Error
4. At [37] of the decision record, the Tribunal erred by finding the ‘independent evidence before the Tribunal indicates that there has been considerable stabilisation in the region in 2014 and 2015.’
5. At [40], the Tribunal erred by finding that ‘the evidence discussed above indicates that there has a level of security restored to the Upper and Lower Kurram.’
6. At [42], the Tribunal ‘accept[ed] that there continues to be clashes between militants and the security forces and there have been occasional incident in which civilians have been killed or injured. The Tribunal also accept[ed] that the applicant is recognisable as a Shia Turi from Parachinar’. However, Tribunal erred by finding that ‘there have been significant changes in the security situation in Parachinar since the applicant's departure some three and a half years ago, and since he made his application to the Department.’
(a) DFAT Thematic Report - Shias in Pakistan, 14 April 2015, paragraph 4.37
7. So far as the general security situation in Parachinar is concerned, information from the DFAT Thematic Report - Shias in Pakistan, 14 April 2015, paragraph 4.35, was put to the applicant at [37] of the decision record, that a 2013 truce between the Shia Turi and mostly Sunni Bangash communities in the Kurram Agency was still in place as of “November 2014” and that the main road from Thal to Parachinar was open and was frequently used by civilian cars.’
8. However, the Tribunal failed to take into account and give genuine proper or realistic consideration to [4.37] of that report, whereby the Australian Department of Foreign Affairs and Trade assessed that there was a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas and that the situation in the FATA remained volatile due to ongoing counterinsurgency operations by the Pakistani security forces’.
9. There was an insufficient logical or evidentiary basis for the Tribunal to find at [39], that ‘although the DFAT report refers to a high degree of generalised violence in the FATA and a moderate risk of some sectarian violence, the paragraph cited by the representative refers to the FATA as a whole…’. The Tribunal was ‘not satisfied that it undermines the advice of DFAT that there is an improved security level in the Kurram Agency..’
10.The information in the DFAT Report under the heading ‘Federally Administered Tribal Areas, [4.30-4.37] relates primarily to the Kurram Agency in its scope and the conclusion reached in [4.37] includes the Kurram Agency . That is, although there have been improvements in the security situation in the Kurram Agency, there remains a ‘moderate risk of sectarian violence’ in the area.
11. The Tribunal failed to take into account [4.37] of the DFAT Thematic Report which found there was a ‘moderate’ risk of sectarian violence and erred when finding at [42] there was not, ‘on the evidence before’… a real chance that the applicant will be targeted by the Taliban, or any other extremist groups or individuals if he returns to his home area of Parachinar.’ There was an insufficient logical or evidentiary basis for the Tribunal to find that the DFAT report refers to the FATA as a whole and does not relate primarily to the Kurram Agency.
(b) FATA Reports
12. At [39], in its quarterly report for the third quarter (July to September 2015) the FATA Research Centre referred to six security incidents. There was an insufficient logical or evidentiary basis for the Tribunal to find at [39] that ‘although this was double the level of the security incidents in the previous quarter’…. the Tribunal was ‘not satisfied that it undermines the advice of DFAT that there is an improved security level in the Kurram Agency.’
(c) The Road between Parachinar and Peshawar
13. At [24], the Tribunal accepted that the ‘Taliban engaged in frequent attacks on the Thall·Parachinar Road and this resulted in considerable difficulties for the Parachinar population, making it difficult for basic goods and supplies and medical equipment to be delivered to Parachinar.’
14. At [27], the Tribunal accepted that ‘these factors were the catalyst for him leaving Parachinar and that he ceased travelling on the road due to considerable danger and security at that time and he was genuinely fearful for his safety.’
15. At [38], the Tribunal accepted that the ‘Parachinar-Thall road, which is the main access road between the Kurram Agency and other parts of Pakistan, has also been the subject of considerable violence directed by Sunni extremists at Shias travelling on that road.’
16. There was therefore an insufficient logical or evidentiary basis for the Tribunal to find at [42], that there was not a ‘real chance, given evidence of significantly reduced attacks and civilian vehicles using the Thall-Parachinar Road, that there is a real chance that the applicant will be harmed either when returning to Parachinar on the Thall-Parachinar Road or if he continues to travel on that road upon his return to Parachinar.’
Consideration
In my view the Ground relied upon by the Applicant is not made out and must fail.
First, it is clear that the weight and accuracy of country information is one for the Tribunal and not for this Court. At [11] of NAHI the Full Court stated as follows:-
The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform… By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
To similar effect, in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 the Full Court of the Federal Court comprised of Gray, Kiefel and Lander JJ stated at [63]:-
The appellant has recognised that the appeal could not succeed if the appellant’s only complaint was as to the weight which the RRT had given to the various items of country information: QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The appellant also recognised that he could not establish jurisdictional error by showing that the RRT preferred particular country information to other country information: VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104.
The effect of these authorities is that as a general proposition, the Tribunal does not fall into error when it makes a choice between competing country information and that the choice of and weight to be given to such information is a matter for it.
Second, on the face of its Decision Record the Tribunal appears to have conducted a proper, detailed and extensive examination of relevant country information which was fairly put to the Applicant and his migration agent at the hearing. The Tribunal appears to have engaged in a logical and reasonable examination of relevant country information and I cannot discern or infer any legal unreasonableness in terms of that examination or its findings being illogical, arbitrary or capricious.
Third, notwithstanding that I am not conducting a merits review, I have considered the following country information which was considered by the Tribunal and tendered at the hearing in this Court on 7 June 2016, namely:-
a)the FATA Security Report Second Quarter 2014 (April-June);
b)the DFAT Report;
c)part of the FATA Annual Security Report 2014;
d)part of the FATA Security Report Third Quarter July-September 2015; and
e)the country information in the Court Book.
I consider that nothing therein renders the findings of the Tribunal illogical or irrational in a legal sense or not open on that body of evidence. The position is as expressed in the following passage from the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 650 [135]:-
It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims…
In my view, the Ground relied upon by the Applicant in this proceeding in reality invokes a merits review of the Tribunal’s assessment of the country information, which is not open to this Court: see NAHI as extracted at [33] above and BZAHN v Minister for Immigration and Border Protection [2016] FCA 281 at [70] per Rangiah J.
Conclusion
Accordingly, the Applicant has failed to establish any jurisdictional error and the Amended Application filed in this Court on 7 June 2016 must be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 16 May 2017
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