CXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1170
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1170
File number: PEG 140 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 November 2024 Catchwords: MIGRATION - Administrative Appeals Tribunal - Protection (Class XA) visa – country information – where the conclusion reached by the Tribunal was illogical or irrational – rejection of the applicant’s claim relied upon a personal assumption, speculation or unarticulated basis - jurisdictional error established - material error - application allowed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa). Cases cited: CXG17 v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 52
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DTE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 726
Fattah v Minister for Home Affairs [2019] FCAFC 31; 268 FCR 33
FPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 770
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 1 November 2024 Place: Perth Solicitor for the Applicant: Mr Jones (Migrant Law) Counsel for the First Respondent: Mr Liu Solicitor for the First Respondent: Ms Martin (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 140 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXG17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’
2.The name of the Second Respondent be amended in the title of the proceeding to ‘Administrative Review Tribunal’.
3.The application is upheld.
4.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 25 March 2024.
5.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine the Applicant’s application according to law.
6.The First Respondent pay the Applicant’s costs fixed in the sum of $7845.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
BACKGROUND
The applicant is a citizen of Pakistan. On 10 April 2014, the applicant filed an application for a Protection (Class XA) visa (“the visa”).
On 9 April 2015, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant a protection visa. On 8 June 2017, an earlier Administrative Appeals Tribunal (“the Tribunal”) affirmed the delegate’s decision. The applicant successfully sought judicial review of the matter in this Court and the application was remitted to the Tribunal for redetermination by order of Judge Taglieri on 2 February 2023 in CXG17 v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 52 (“CXG17”).
In the previous decision, the applicant succeeded on the basis that the Tribunal had failed to consider both particularised aspects of the claim for protection in ground one of the judicial review applications; (see: CXG17 at [33]).
When the matter was remitted back to the Tribunal for reconsideration, the applicant appeared on 31 October 2023, 14 November 2023 and 6 March 2024 to give evidence and present arguments. On 25 March 2024, the Tribunal again affirmed the delegate’s decision. It is this redetermination decision that is before the Court.
For the reasons set out below the application must be upheld.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
From [1] to [9] of the decision, the Tribunal set out the history of the matter leading up to the redetermination decision.
From [10] to [24], the Tribunal set out the legislative criteria they had regard to in assessing the applicant’s refugee criterion.
Before proceeding to a consideration of the claims and evidence, at [25] to [32], the Tribunal noted the applicant’s mental health conditions in discussing a report authored on 12 October 2023. The Tribunal was aware of the applicant’s diagnosis of epilepsy which he stated affected his memory and anxiety levels. For this reason, the Tribunal member conducting the hearings, and they endeavoured to provide breaks when it was necessary or requested. The applicant was supported by his brother and wife across the two hearings and the applicant was given ample time between the three hearings to reflect on the issues raised at each hearing and provide new information.
The Tribunal was satisfied that the applicant was not impeded by his condition in the process of giving evidence or presenting arguments [31].
The Tribunal provided a background to the applicant’s claims, the relevant evidence to the applicant’s claims for protection are summarised as follows:
·The applicant was born in Lilownai, Shangla District, Khyber Pakhtunkhwa (KPK). In 2010 he was sent to Abbottabad by his dad due to the Pakistan Taliban, known as Tehreek-e-Taliban-Pakistan (TTP). The applicant could not remember any violence up until 2007 or 2008 when the Taliban came and ‘it became messed up’. For the purposes of the Tribunal decision, they distinguish the Pakistan Taliban from Afghanistan’s Taliban which they refer to as Afghan Taliban.
·The applicant moved to Mingora to complete an accounting course and then a computer course which began in January 2012. During his first course of studies the applicant attended peace committee meetings in his hometown when he would travel back on Sundays.
·After the applicant finished his computer course, he claimed that he went to Islamabad to prepare documentation to come to Australia. In that time period he stayed in an Islamabad hostel from October 2012 to January 2013.
·The applicant arrived in Australia on 26 January 2013 on a student visa.
·The applicant is married, and his brother and wife are here in Australia. The brother has also sought protection.
·The applicant’s father received threats up to the time of his death in 2023 that the applicant believes are caused by him. The applicant’s father moved to Lahore, as a result of these threats. A lawyer in Pakistan provided a statement attesting that the father claimed to have been threatened by the Taliban in Lahore who asked him for the applicant’s address. When the applicant’s father refused to provide the address, he claimed he was severely tortured. The applicant claims the father went to the police and although he received a protection order, still maintains that the police did nothing.
·The applicant claimed that those threatening his father believed he had returned to Pakistan.
·The applicant’s father was involved as a member of the ANP but never held office and only campaigned, encouraged support for people to work for them and financially supported them. The Tribunal stated that in the submissions made by the lawyer in Pakistan, he wrote that the applicant’s father was ‘leading the ANP campaign in his district’ which would suggest a position of senior responsibility. The applicant maintained that his father did not want to contest elections therefore he wasn’t an office holder and despite being a leading member he was not a leader [48].
·The applicant’s father was a member of the local peace committee which was originally the ‘jirga’ but went on to become a peace committee member in 2007 or 2008. This involved members participating in patrols. The applicant began participating in the peace committee in early 2008 to July 2008 and would patrol every night in that period.
The Tribunal addressed each of the applicant’s claims and evidence in turn and made the following findings below.
The applicant claimed to be involved in an exchange of gun fire with Taliban operatives whilst on a police patrol with his uncle and others in 2008. The applicant described that one of the co-patrollers heard trees being cut down and the patrol groups fired warning shots, to which the people, who he believes were the Taliban, fired back. The applicant believed that the Taliban were cutting down trees to sell timber, to which the Tribunal member noted that this activity is noted to have criminal elements in country information. The applicant stated that the criminals would not be cutting down trees in the village but rather the forest.
Related to this, the applicant claimed that all members of the peace committee received a threatening letter which was left in a box at the local mosque. The applicant’s letter was individualised and addressed to him, but he could not be sure if all the letters were the same. The applicant’s uncle was killed in 2008, and the applicant believed it was because of the warning shot incident in the forest. The Tribunal raised that the death may not have been directly related as only the uncle was killed and not other patrol members or 100 people who received the threatening letter.
The Tribunal accepted that the applicant had been part of the patrol in the forest when they came across people cutting down trees and received a threatening letter. The Tribunal found that the people cutting down trees in the forest were criminals and any subsequent incident, namely the uncle’s death and receipt of threatening letters had no relation to that event.
In relation to a threat letter the applicant received whilst at college in 2010, the applicant stated that he received a letter via the President of the Pashtun Student Federation (PSF) which was a letter listing people on the governance committee including the applicant communicating that what they were doing was not aligned with Taliban ideology. Others on the list left college and others continued.The applicant recalled the President was attacked in early 2011.The applicant stopped attending the college after receiving the threats but lived in the same location as he had when he was threatened. The Tribunal accepted all the information above however found that the threatening letter only served to dissuade the applicant from his efforts in that institution at the time, and because he left that role and had no further threats made against him, there would be no lingering animosity such that he would be at risk as a result of those activities if he returned to Pakistan.
The Tribunal accepted that the applicant had received a second peace committee threat letter in 2011 because he had been a member of the peace committee but noted that the applicant did not claim any harm that occurred subsequent to the threat letters being received.
The Tribunal accepted that the applicant’s brother was kidnapped in 2013 and provided details of the kidnapping to the extent that it explained how the applicant was impacted by the kidnapping in 2024. The Tribunal however did not accept the applicant’s evidence that the Taliban demanded the return of the applicant at the time of the kidnapping as the applicant’s profile was very low at the time. Although the family was relatively prominent, the demand for the applicant’s return was not found to be plausible.
Further, the Tribunal accepted that the applicant’s brother, whilst working for the Forest Guard in July 217 was fired at and attacked by unknown people as stated in the Pakistan lawyer’s report but did not accept that it was targeted for the purposes of his identity. The Tribunal was satisfied that the shooters in the forest did not know who the forestry guard was and there were no lingering repercussions to the applicant from what the brother experienced.
The applicant stated that his cousin was killed in 2013 in connection with his involvement as a member of the peace committee. The Tribunal accepted that the applicant’s cousin was killed for this reason however rejected that he had been targeted by reason of being a member of the wider family.
The applicant claimed that in December 2013 shots were fired at his father’s house and stones thrown on the roof and his father at the time was sure it was the Taliban. The Tribunal put it to the applicant that it could have been children since they were thrown at a close distance and that it was vexing that if it had been the Taliban that close to the home, they did not do anything more. The Tribunal accepted that shots were fired at the house and stones were thrown but found that it would be speculative to assign responsibility to the Taliban.
In regard to the applicant’s sur place activities, the Tribunal accepted the applicant’s information about participation in the ANP, his social media activities, participation in one protest and his and his brother’s role in the Victorian Chapter of ANP Australia.
The Tribunal engaged with the applicant regarding all the documents before them, being the threat letters from 2008, 2011 and a First Instance Report (FIR). At [102] the Tribunal accepted that the threat letters are genuine despite concerns that the author introduced Sharia law using the Western calendar instead of when the Islamic Hirja occurred. Further, they accepted that the applicant was referred to as an important member despite being in high school at the time and only having participated for some months. As to the FIR’s these were accepted to be reports provided by purported victims lodged at a police station.
The Tribunal considered the claimed persecution of the applicant’s father and noted that the applicant’s father had claimed to lead election campaigns for the ANP, had his son kidnapped for ransom, received threat letters, was on the jirga and peace committee for a decade but did not leave and seek sanctuary elsewhere until 2023. They found it implausible that during a 16-year period where the worst violence was experienced in the Khyber Pakhtukhwa region the father did not leave and only in 2023 left to go hiding in Lahore. This was not accepted by the Tribunal, and they also found that the father had not received any calls or threats regarding the applicant and had not been beaten.
The Tribunal addressed other claims made in the Pakistan lawyers report that was noted to be relevant to the applicant’s circumstances. Firstly, that another cousin of the applicant’s who was a Deputy Superintendent of Police in Shangla was killed in 2016, and the applicant stated this impacted him as it was his first cousin and families as a whole are targeted by the Taliban. Secondly, there was an attack on the Agriculture Institute in Peshawar in 2017 and the Taliban knew of his two relatives living in the dormitories and were actively searching them. The applicant did not believe the attack was premeditated to kill his relatives but that the Taliban would have known they were there. The Tribunal raised that a news report provided in the lawyer’s report suggested that the Taliban had mistakenly targeted the Institute.
The Tribunal accepted that the applicant’s cousin was killed in 2016 and was a Deputy Superintendent. The Tribunal accepted that the applicant’s relatives died in the Agriculture Institute incident but did not accept that the Taliban named the cousins and found the claim implausible as no material suggested that the relatives at the institute would have been of particular interest.
The Tribunal considered the circumstances of the applicant’s wife through a statement provided to the Tribunal and evidence provided at hearing. The Tribunal, although accepting the evidence that the applicant’s wife did not have permission to marry the applicant, had her departure facilitated from Pakistan and was once beaten and hospitalised, noted that her immigration pathway is distinct from that of the applicants. As such the application was considered in the context of the applicant returning to Pakistan on his own but in the context of his marriage to his wife.
The Tribunal from [132] to [165] detailed the general security situation in Pakistan through quantitative and qualitative assessments as well as country information provided by the applicants and their representatives. At [164] the Tribunal ultimately found that the security situation in Shangla is safe and recent tensions arising from the elections were an anomaly. Further, that the personal risks faced by the applicant would not be amplified by the secure environment he would be returning to. The Tribunal considered the security situation in the reasonably foreseeable future and was not convinced of the applicant’s fears towards a turn of authoritarianism and found that looking into the future, the environment will remain safe.
The Tribunal then considered the specific sources of harm faced by the applicant. In relation to the applicant’s fear of harm as a former peace committee member, the Tribunal accepted and made the following findings.
·The applicant had received threat letters in 2010 and 2013 because he was a member of the peace committee not because of his individual endeavours [167]. It has been over 10 years since the letters have been received, the applicant has not been on patrol as a peace committee member for 12 years and there is nothing to suggest the Taliban retains the names of former members [168].
·The Tribunal accepted that the village had sympathisers of the Taliban but there have not been any incidents for a long period of time which would suggest that circumstances have changed [169]. Despite the Tribunal not knowing if the circumstances reflect fewer sympathisers or changed allegiances, they note that there is no longer an expressed interest by the Taliban leadership in districts like Shangla.
·The Tribunal found that the applicant’s past participation on the peace committee and receipt of threat letters did not lead to him facing a real chance of serious harm [173]. The Tribunal found that he will not face harm from those involved in the 2008 forest incident as he was part of the patrol group fired at [174].
·The Tribunal found that even if the applicant returned to Pakistan and joined the peace committee as a representative of his family, he would not face a real chance of serious harm into the foreseeable future [175].
·In regard to the applicant’s mental health conditions, the Tribunal noted that there is a marginal possibility that the applicant will engage in a highly unlikely confrontation with the Taliban in which he would suffer a seizure which would increase his risk. Ultimately the Tribunal found that this scenario is unlikely due to the security situation.
At [180] the Tribunal noted that the brother’s circumstances have been addressed in a separate situation but found that as a result of the sibling relationship, the applicant does not face a real chance of serious harm or a real risk of significant harm arising from this sibling relationship.
The Tribunal then considered the applicant’s source of harm from his involvement with the Awami National Party Support and made the following findings:
·The applicant after 13 years will not face harm that arises from his and his family’s past support of the ANP [184].
·The applicant did establish a following on social media posting under a pseudonym but there was no evidence to suggest that the Taliban would have a mechanism to be able to uncover the identity of the person posting [185].
·Some of the social media posts regarding activities he and his brother have undertaken in Sydney would be available to the Taliban but the Tribunal had no evidence before it to suggest that the Taliban monitor the global activities of the diaspora. It was implausible the Taliban had the ability to filter through posts created by the global Pakistan diaspora and use facial recognition technology to identify the applicants [186].
·The Tribunal found that in no circumstances does the applicant’s social media activities raise his levels of risk to a real chance of serious harm to the reasonable foreseeable future or significant harm as a consequence of removal [ 188].
·The applicant’s role as a member of the ANP Victoria Chapter would not be known to the Taliban due to the scale of information available that is produced by the Pakistan diaspora and the low profile of the applicant. The Taliban would not be searching for the information, it would not become known to them and such would not modify the applicant’s risk profile [189].
·The applicant’s future activities in support of ANP will not put him at risk of harm [190].
·The applicant will not face any harm from the state in the new post-election political landscape.
The applicant made reference to the circumstances of being Pashtun and notably claims of the militarisation of the KPK which has lead to Pashtuns being ‘marginalised on their own land’. The Tribunal considered this claim and noted that the circumstances faced by the applicant as a Pashtun in the Shangla District. At [202], the Tribunal did not accept based on the evidence provided that the applicant would travel to the capital of KPK from the Shangla district and face discrimination to such an extent that it would amount to serious or significant harm.
The Tribunal found that although enforced disappearances and extrajudicial killings occurred, the applicant and his brother’s profiles were very limited and as such would not face harm based on his or his brother’s antigovernment or imputed anti-government opinion.
In relation to the activities and profiles of his family members, the Tribunal found that if the brother was to continue his role of the ANP Victoria chapter this would not add any level of risk to the applicant. Further, were the brother to return to Shangla and join the peace committee, it would only marginally increase the applicant’s profile [205] - [206]. The Tribunal found that the applicant being a family member of others who are involved in the peace committee or supports of the ANP in Australia or Pakistan would not lead him to face any harm [207].
The Tribunal put to the applicant questions about the security situation and what risks he faced noting the status of his family, and the ransoming of his brother. The applicant believed that the Taliban would target him as they target those who are socially or politically active. The Tribunal considered if the applicant would be harmed as a result of the actions of criminals or criminal activity of terrorist groups and ultimately found he would not be at risk of this harm for reasons arising from criminal activity targeting his family.
The Tribunal also found that the applicant’s western values would not lead to the applicant being harmed by the Taliban, considering that the applicant would be a returnee from the West having spent ten years in Australia and adopted some cultural traits [221] – [224]. The Tribunal did not have supporting evidence to suggest that the community would actively harm them.
In regard to any harm from the family of the applicants wife, the Tribunal found that the applicant will not face any harm, noting that the wife’s family has not sought to harm the applicant’s family, the wife remained in Pakistan for the reminder of 2017 and part of 2018 after being beaten which suggests that the family did not intend to kill her and further that country information indicates that honour killings would primarily target the female [230].
The Tribunal specifically addressed the applicant’s epilepsy in the third hearing where claims of stigma and access to medication were discussed and the Tribunal made the following findings:
·The Tribunal member requested information on the applicant’s epilepsy noting that country information indicated that his medication is available in Pakistan, there were regular awareness campaigns and an estimated 2 million people in Pakistan had epilepsy.
·The applicant raised that research pieces that were discussed at the hearing were undertaken in Karachi which is notably more modern compared to the locality where he lives where they may not be medicine [238]. The Tribunal accepted this [245].
·The Tribunal placed no weight on the psychologists’ views on the applicant’s epilepsy other than that the applicant’s mental health would deteriorate if he was unable to manage his own medication regime, then he would suffer more frequent seizures.
·The Tribunal found that the applicant’s epilepsy can be managed through regularly taking his medication which is available in Pakistan.
·Although the current dosage of medication can possibly be insufficient to manage his epilepsy, the applicant would be able to access medical advice to advise whether he can increase the medication or take an alternative medication.
·The Tribunal accepted that if the applicant did have a seizure in the future, he does live in a place that is more traditional and conservative where there are perceptions that epilepsy arises from demonic possession. As such, he may face a degree of derogatory commentary and differential treatment were he to seek employment, however, because he is from a well off and high status family, his omission from work opportunities would not lead to harm. Any psychological impact from isolation that he would face would not amount to serious or significant harm [250]. The applicant does not face a real chance of harm arising from his epilepsy,
At [253] – [255] the Tribunal cumulatively considered the entire circumstances of the applicant and noted that some risk of harm would overlap and compound, and in turn considered those risks:
[253] I now turn my mind to consider the entire circumstances of the applicant noting that some risks of harm would overlap and compound, increasing the possibility of serious or significant harm. For example, the applicant’s profile among the Taliban and others who are against the Pakistan government would compound for reasons of being on a peace committee, a member of the ANP, a Pashtun and being related to his father and other family members who have a similar history and having just returned from the West. Another example of compounding risk is his epilepsy and being a member of a peace committee on patrol.
[254] Alternatively, from the perspective of the government, the harm he faces from any anti- Pashtun sentiment, blowback arising from any actual or imputed anti-government political opinion and being associated directly and through his family with the ANP can cumulatively lead to the amplification of risk for the applicant from the government.
[255] There is also the compound risk of harm from his the police man who is a member of his wife’s family and the possibility that together with his ANP profile could be used to leverage the resources of the state and harm him that way.
Ultimately the Tribunal affirmed the decision not to grant a Protection visa as they found that the applicant did not satisfy the criterion set out in ss 36(2)(a) or (aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The applicant’s two grounds of judicial review are contained in an Amended Originating Application filed on 4 October 2024 with leave of the Court. The grounds are as follows:
1. The Tribunal made assumptions about
(a) the digital capabilities of the agents of persecution; and
(b) the availability of medication to treat the Applicant's epilepsy in Pakistan
which were without any probative material to support those assumptions.
2. The Tribunal unreasonably made "definitive judgments" about contrasting interpretations of events without any evidence to justify excluding alternative interpretations and without asking itself what would be the consequences if an alternative interpretation were correct.
THE APPLICANT’S SUBMISSIONS
Ground one, particular a) is an allegation that the Tribunal made assumptions without evidence about the digital capabilities of the agents of persecution. The Tribunal asserted at [185] - [189] of the decision record about the Taliban’s “IT” capabilities and it is submitted by the applicant that they did not give any reason for believing that the Taliban did not have the resources or the willingness that would commit them to uncovering the identity of the person posting under a pseudonym in regard to the ANP.
The Tribunal would have been aware at the time of their decision that the Taliban was a State organisation that ruled Afghanistan and had branches in countries like Pakistan. The Tribunal accepted that the Taliban would have some posts and activities available to them and that one social media post was re-posted by a prominent ANP politician living in Pakistan however they still asserted that there was no evidence to indicate that the Taliban monitors the global activities of the diaspora.
The applicant argues that unwarranted assumptions based on no evidence as to the behaviour of groups or individuals have been found to be unreasonable, some of which were summarised by Judge Laing in the matter of FPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 770. Further, in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, a decision of Allsop CJ, Markovic and Steward JJ it was argued at [46] that the making of findings that are of central importance to the decision maker’s reasoning without any material to found them was a “sufficient basis to conclude that there has been jurisdictional error”.
Ground one, particular b) is an allegation about the availability of medication to treat the applicant’s epilepsy in Pakistan. The Tribunal concluded that there was no threat to the availability of medication in Pakistan and as an extension no threat to the applicant’s ability to manage his own medication regime. This conclusion was not supported by the evidence available to the Tribunal. Namely, that the Tribunal had dismissed the psychologists’ qualifications to make medical assessments and then come to the same conclusion that a failure to treat the applicant’s epilepsy would result in him suffering more seizures. Further the Tribunal referred to country information about the availability of certain epilepsy medication based on information from an internet site, to which the applicant subsequently pointed out that the website stated the medication was sold out. The Tribunal did not weigh the applicant’s reference to evidence of the significant shortages of medications in Pakistan and the widespread marketing of counterfeit pharmaceuticals against another website they referred to in their decision which offered a drug of the same name for sale at that date.
In support of this argument the applicant relies on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135] where Crennan and Bell JJ said:
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.
By ground two, the applicant complains that the Tribunal came to an unreasonable definitive judgment about events the applicant had given evidence on and failed to properly consider any alternatives. The applicant particularly points to the Tribunal’s findings as to the applicant’s claim about the 2008 gunfight during the patrol at [51] - [59] of the decision record. Whilst the Tribunal had accepted that there was a gunfight between the patrol and an armed group at [63], they questioned whether the group was opportunistic criminals, or Taliban or similar terrorists seeking to make money to finance their cause. If the armed group were common criminals, the Tribunal could be satisfied that the applicant would not be at any real risk, but alternatively, if they were the Taliban or similar terrorists a greater risk existed towards the applicant and the threats contained in the letter could be taken more seriously.
The decisionmaker undertaking a consideration of an applicant’s claims must use the test ‘What if I am wrong’ to speculate on alternative interpretations of a set of facts unless the decisionmaker has no real doubt as to which interpretation is correct; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [36]. In coming to their conclusion, the Tribunal relied on information from a newspaper article at [53] and the abstract of an article in the Pakistan Journal of Forestry at [80]. The newspaper article from April 2017, nine years after the incident involved the applicant, references a “timber mafia” engaged in illegal logging however by the time of the applicant’s incident a government drive had apparently significantly reduced trade. As to the article abstract, the applicant quotes an extract of the article which suggests that poor management of the forest had fuelled militancy in the Swat district over 2005-2008 and the involvement of timber mafia in supporting militancy in the Swat region could not be ruled out. The applicant’s incident notably occurred in 2008.
The applicant takes issue with the Tribunal’s judgment on the incident based on the newspaper and journal article alone. The applicant argues that if the Tribunal could argue that it was not reasonable to make a definitive judgment on the assumption, advanced by the applicant in the hearing, that criminals operate away from the village, then it was unreasonable for them to come to a definitive judgment based on the newspaper and journal articles.
The country information that the Tribunal had on the involvement of criminal gangs in illegal logging could not have given rise to a reasonable inference that the Taliban or other terrorists could never have been involved. The applicant argues that the Journal article suggests a possibility that the Taliban or other terrorists could have been involved and without probative evidence that the loggers must have been criminals then a reasonable Tribunal could not have reached a state of ‘no real doubt’. Such that, this state would lead them to disregard completely the possibility that they were Taliban or a similar group and consequently not ask whether, had they been the Taliban or a similar group, if there was a real chance that they might target him again in the future.
THE FIRST RESPONDENT’S SUBMISSIONS
As to ground one, Counsel for the first respondent argues that the Court should not accept the arguments of the applicant as its reasoning was “logically open to it” and the grounds invites an unfair reading of the reasons. The first respondent relies on SZMDS to argue that
“it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (SZMDS at [133]). The first respondents disputes the use of FPA18 in the applicant’s case as it simply stands for the proposition that the Tribunal’s findings and reasoning process has to be “reasonably or logically open to it; ([45]).
The applicant makes an assumption that the Tribunal should have been aware the Taliban was a State organisation and this is argued to be an attack on the merits of the Tribunal decision. Subsequently, the argument does not establish that it was irrational, illogical or legally unreasonable for the Tribunal to find that “there was no evidence available” that suggested the Taliban could monitor social media activity closely enough to pose a significant risk to that person if they return to Pakistan.
Particular b) of ground one is a complaint that the Tribunal weighed the evidence rather than asserting that the Tribunal finding was not supported by evidence. As such the applicant’s complaint about the Tribunal taking another website into account despite the applicant referring to evidence of significant shortages of medication goes to how the Tribunal weight the merits of the evidence and as such does not establish jurisdictional error. There was nothing “illogical or irrational” about the Tribunals’ preference of one piece of country information over the other.
By ground two, the first respondent submits that the applicant’s contentions about the Tribunal findings being based on a “single newspaper article about criminal loggers” and a “technical journal which in fact suggested a possible connection between criminal and militants” is just a complaint about the merits of the case and the manner in which the Tribunal weighed the available evidence. Further, the applicant misunderstands that the Tribunal did not conclude that the Taliban or other terrorists “could never” have been involved but instead only expressed at [64] of its decision record that it was “speculative to conclude that the people in the forest were Taliban”, expressly relating this finding to the applicants 2008 incident.
The Tribunal had some probative material available before it in making its findings, as the applicant appears to accept and by reason of Fattah v Minister for Home Affairs [2019] FCAFC 31; 268 FCR 33 (“Fattah”), a ground of unreasonableness or illogicality cannot succeed. In applying the principles of Full Court of the Federal Court, the first respondent argues that the country information considered by the Tribunal provided a “logical connection between the evidence and the inferences drawn”, and that the Tribunal’s finding did not lack “an evident or intelligible justification”.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].
It is for the applicant to satisfy the Tribunal Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal Authority: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [2] - [7], the High Court had the following to say about jurisdictional error and materiality:
[2] Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all “and is in that sense "void".
[3] Because an express or implied condition of a statutory conferral of a decision making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision,[5] but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
[4] A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition.[7] Only by construing the statute so as to understand the limits of the statutory conferral of decision making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).
[5] Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn - "[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute".
[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non compliance.
Thus, a Court is required to first consider if jurisdictional error is present and then if the error is material. Only if both of these considerations are met will the Court quash the decision under review.
Ground one consists of an allegation of making unwarranted assumptions without probative evidence in relation to two matters, the first being the digital capabilities of the agents of persecution, being the Taliban in Pakistan, and the second being the availability of medication in Pakistan to treat the applicant's accepted epilepsy.
The Tribunal outlined the applicant's evidence as to his social media profile at [88] - [94], which it accepted. At [185] the Tribunal accepted the applicant under a pseudonym, had a substantial following on social media. However, in relation to the applicant's claim that his profile would put him at risk on return the Tribunal found at [185] the following:
… But there is no way for someone without substantial resources and a willingness to commit them to uncovering the identity of the person posting under the pseudonym to connect this pseudonym to the applicant. No evidence is available to the Tribunal to suggest that the Taliban have some mechanism by which they can achieve this.
At [187] the Tribunal noted that at least one ANP Victoria social media post was reposted by a prominent ANP politician living in Pakistan. The Tribunal accepted that this would have been viewed by some of the Taliban but then found:
… But it would be extremely tenuous to link the viewing of one post by some Taliban and the possibility of then those Taliban identifying the applicant and furthermore conveying that information to some central database where records are kept such that they would be targeted in the future for their support of the ANP while in Australia.
No country information is referred to in coming to these conclusions. The Minister says if there is no evidence of this capacity within the Taliban, then the ground must fail, as the onus lies on the applicant to show they meet the criteria for a protection visa.
In DTE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 726, the Court dealt with claims made in relation to a fear of return to Iran. One aspect of the claim related to an allegation regarding contact made by the Basij with the applicant's sister. The following is extracted from that judgment at [77] - [80].
[77] Second, the IAA found that if it was the case that the Iranian authorities wished to question the applicant's sister and her husband about the applicant, the IAA doubted that the police would take such a circuitous method. Rather, they could have simply approached and questioned the couple directly at a time of their own choosing. In effect, the IAA rejects this evidence in its totality.
[78] EVI19 per Stewart J also involves claims made by an Iranian citizen of fear of harm upon return. This included a finding by the IAA regarding the circumstances of the applicant's escape from Iranian authorities after he claimed he bribed a guard while being taken to court.
[79] At [78] - [79] of EVI19, Stewart J said the following:
[78] Insofar as the Minister contends that the evidence of findings in support of the Authority's impugned implausibility finding are necessary because the appellant's ability to escape in those circumstances does not accord with the probabilities of ordinary human experience (BQQ15) or, based on a modest familiarity with human experience, it requires no evidence (Djokovic), that contention should be rejected. Any such finding could not be based on anything more than speculation or conjecture, for it cannot be said that such a finding would be made in accordance with the Authority's personal knowledge or by reference to that which is commonly known (Viane). The primary reason for that is that there is no evidence that the authority has any personal knowledge of or familiarity ordinary human experience in Iran.
[79] In Hathaway J and Foster M The Law of Refugee Status (CUP, 2nd Ed, 2014), the authors discuss (at p140) the dangers of relying on plausibility reasoning in the assessment of credibility as follows:
But decision-makers are too often prone to impugn an applicant's credibility on the basis of some vague sense of implausibility of the testimony given, described in one case as having been "premised on inferences, assumptions, and feelings that range from overreaching to sheer speculation". Even the most careful assessment of plausibility about risks in a foreign country must be undertaken with a real humility, since the decision makers understanding of plausibility may well be grounded in a view of rationality at odds with the circumstances in the applicant's country of origin. More generally, account must be taken of the twin cautions that "speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence "and that any assessment of implausibility must be carefully tethered to the record'… [avoiding] hyperbole
(emphasis added)
[80] In this case, the IAA rejects the evidence of the sister based on a claim that it is implausible that she and her husband would have been called to a police station on the pretext of a morality offence, when the real reason was that they wished to interrogate her and her husband about the applicant. In coming to this conclusion, no country information or other reference is cited that would support such a finding. It appears, at best to be based on either a personal assumption, speculation or using some other unarticulated basis to come to a conclusion as to the methods and tactics of the Iranian Morality Police. The conclusion lacks an evidentiary basis.
In the case of this applicant, the Tribunal accepted he had a social media presence, and at least on one occasion a post he had made under a pseudonym had been reposted by prominent member of the ANP resident in Australia. In my view, the complete rejection of the claim that the applicant feared harm on the basis of his social media presence, relied upon either a personal assumption, speculation or using some other unarticulated basis to come to a conclusion as to the capabilities to identify and then record the names of persons who may have been engaged in criticism of the Taliban. The Court is satisfied that this conclusion lacks an evidentiary basis and therefore falls into the category of being illogical or irrational.
Having established jurisdictional error, the Court is satisfied that that error is material in that there is a realistic possibility a different decision could have been arrived at.
Even if I am wrong, the Court is satisfied, that the Tribunal should have considered the possibility that they were in error, given the lack of any country information to support the proposition put forward by the applicant, or indeed that the proposition was without support.
Ground one (a) has merit. The Court grants the orders sought by the applicant in his initiating application of quashing the decision of the second Tribunal and remitting the matter back to the Tribunal requiring it to redetermine the matter according to law.
Although not strictly necessary, the Court will deal briefly with the second aspect of ground one and ground two.
Ground one (b) was a claim that the Tribunal made an unwarranted assumption without any probative material as to the availability of medication to treat the applicant's epilepsy in Pakistan. This issue was discussed at [232] - [252] of the Tribunal decision record. Reference is made to the availability of epilepsy medication in Pakistan. At [237], the Tribunal noted that the medication that the applicant currently takes is in fact manufactured and sold in Pakistan. By reference to relevant country information the Tribunal concluded that the applicant would be able to access the current medication he is on and that it remains available within Pakistan. In these circumstances the Court does not accept the assertion that there was no evidentiary basis for the conclusion drawn. Ground one (b) has no merit.
Ground two is an assertion that there was legal unreasonableness or irrationality in how the Tribunal use country information to reject the applicant's claim that he was "involved in the exchange of gunfire with Taliban operatives" whilst conducting a community patrol in a forest. The Tribunal concluded that it was more likely based on country information that the illegal logging was being undertaken by criminals rather than the Taliban or terrorists. In this case, the Tribunal referred to information which supported the concept that illegal logging operations were indeed conducted by criminals. Given the availability of some probative material to support the evidentiary finding, the Court is not satisfied that it reaches the stringent requirements for legal unreasonableness or irrationality as there is a logical connection between the evidence and the inferences drawn; (see: Fattah at [45]). Ground two has no merit.
DETERMINATION
Accordingly, it follows that the application must be allowed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 November 2024
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