CXK16 v Minister for Immigration
[2020] FCCA 1016
•7 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXK16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1016 |
| Catchwords: MIGRATION – Protection visa application – illogicality or irrationality in decision affirming decision to refuse application – where applicant introduces claim when interviewed by delegate that in 2001 his father had informed on Taliban resulting in the location of 150 Al Queda members who were then transferred to Guantanamo Bay, Cuba – where applicant claimed that this had resulted in his father incurring enmity of Taliban – where father suffers no harm between 2001 – 2008 – where applicant claimed father kidnapped, beaten and released in 2008 – where applicant claimed father remained in Pakistan until emigrating to United States in 2014 but suffered no harm between 2009-2014 – applicable principles – whether assumptions unwarranted – whether decision sufficiently seriously illogical, irrational or groundless – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 36, 430, 474, 476 |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALR 347 Texts: |
| Applicant: | CXK16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2167 of 2016 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 29 April 2020 |
| Date of Last Submission: | 29 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 7 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Guo |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Ms J. Lucas |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio and video link.
By consent, the name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 20 April 2020 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2167 of 2016
| CXK16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 20 April 2020, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 9 September 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow I have concluded that the application should be dismissed. In summary, I consider that the Tribunal’s decision was not tainted by illogicality or irrationality of a kind sufficient to constitute jurisdictional error. The Tribunal’s decision that the applicant did not have a well-founded fear of harm was a decision which a rational and logical decision-maker could have arrived at on the evidence before this Tribunal. It was grounded upon a finding that the Tribunal did not accept that his father had informed on the Taliban in 2001resulting in the detention of 150 Al Quada members in Guantanamo Bay, Cuba and thereby incurring their enmity. This finding was open.
Background
The background to the application is common ground.
The applicant, a Pakistani national aged 32 years, first came to Australia on 28 June 2012 holding a student visa valid to 15 March 2014, with a Pakistani passport valid to 20 March 2013. It appears that the applicant had studied at the University of Peshawar in 2007 and 2008 before undertaking a further course at the Institute of Management Sciences from 2009 until 2011. Upon his arrival in Australia, the applicant undertook a course of study for a Masters of Commerce at Griffith University from 2012 until 2013. He did not complete this course.
The applicant travelled to Pakistan between 14 January and 7 March 2014. Thereafter, he applied for protection on 12 March 2014, doing so shortly before the expiry of his student visa.
Claims to protection
The applicant made the following claims in his application for protection:
a)the applicant claimed that his father, a tribal leader, had been loyal towards the Pakistani government against the Taliban and Al Qaeda;
b)following a land dispute which he had attempted to resolve with another tribe, his father had been kidnapped by the Taliban on 20 November 2008 but released (albeit wounded), a week later;
c)the Taliban had also kidnapped an uncle and burnt two schools that were run by the applicant's family;
d)Taliban and pro-Taliban Pakistani intelligence agencies had been informed that the applicant’s brother worked as an interpreter for US forces in Afghanistan, forcing his parents to move to the United States and the applicant to claim protection in Australia;
e)during his recent visit to Pakistan, the applicant had stayed for a period of ~50 days in Islamabad in a rented house with his three sisters. He claimed to fear of being kidnapped by the Taliban or pro-Taliban intelligence agencies for all of the time that he has been there;
f)the applicant also claimed that as a part of this family he would be targeted. He claimed that he had three sisters and one brother who remained in Pakistan and lived in fear, with his sisters staying at home most of the time (nothing having happened to any of them).
The applicant provided signed statements from the President of the Pakistan International Human Rights Organization, a member of the Pakistan National Assembly and local political agents (part of the governance of the Federally Administered Tribunal Areas of Pakistan, sharing a border with Afghanistan).
Delegate’s decision
The applicant attended an interview with a delegate of the Minister during which he confirmed his claims to fear harm as a result of being kidnapped or killed by the Taliban or pro-Taliban elements of the Pakistani intelligence services. The applicant added a further claim, stating, somewhat remarkably, that his father had also earned the enmity of Al Qaeda and the Taliban as a result of his having reported, in 2001, that members of Al Qaeda were in hiding and that those members, once they had been located, had been sent to Guantanamo Bay.
On 10 August 2015, a delegate of the Minister refused the visa application. The delegate accepted that the applicant’s father had played an active role in local politics but did not accept that he had earned the enmity of the Taliban or Al Qaeda. The delegate questioned why, if the applicant’s father had earned the enmity of the Taliban and Al Qaeda in 2001, his parents had remained in Pakistan until emigrating to the United Stated in 2014. The delegate also took account of the applicant’s delay in seeking protection, coupled with his decision to travel to Pakistan in 2014, before returning to Australia and seeking protection shortly before the expiry of his student visa. The delegate rejected the applicant’s assertion that the situation in Pakistan was now worse than when he had been there, relying upon country information for that purpose.
The delegate accepted that in 2008 the applicant’s father had been kidnapped and returned but noted that he had not been involved in any other incidents in the ensuing six year period. The delegate also accepted that the applicant’s brother had acted as an interpreter with the US military in Afghanistan but did not accept that this was known to the Taliban in circumstances where he had begun this employment in 2010, left Pakistan for the United States in 2005 and married a US citizen. Further, the delegate considered the brother’s return to Pakistan in 2013 undermined a suggestion that the brother held a fear of harm.
The delegate also accepted that while a family member had been kidnapped in 2007, it did not accept that a further kidnapping had taken place in 2013. The delegate was not satisfied that the family members of tribal elders were at risk of serious harm and did not accept that the applicant’s family had acted in a manner that was consistent with their having received personalised threats from the Taliban or Al Qaeda.
The delegate also accepted that two schools in which the applicant’s family held an interest had been destroyed by the Taliban but found that this was not a personalised attack and instead constituted part of a more generalised operation which had been carried out in Pakistan.
The delegate did not accept that the applicant had a well-founded fear of persecution, concluding that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) or by way of complementary protection under s 36(2)(aa).
Tribunal’s decision
On 5 October 2016, the applicant applied to the Tribunal for a review of the delegate’s decision. He was represented by the lawyers who represented him in his application for judicial review, making pre and post hearing submissions to the Tribunal. The applicant appeared before the Tribunal on 23 August 2016 to give evidence and present arguments on the issues arising in relation to the delegate’s decision.
The Tribunal ultimately found that the applicant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse the visa application. In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons).
The Tribunal identified that the applicant’s claims to fear persecution were grounded upon his father’s role as a tribal elder and his brother’s role as an interpreter in Pakistan: [9]-[10]. The Tribunal addressed with the applicant the precise nature of his father’s opposition to the Taliban since 2001, his kidnapping in 2008, and the absence of any other incident involving his father in the time that he had remained in Pakistan before emigrating to the United States in 2014: [11]-[15].
The Tribunal also explored with the applicant his claim to fear harm from 2001 and his contention that the situation in Pakistan had worsened: [16]. It addressed with the applicant that interpreters working in Pakistan did not appear to have a profile such as would attract a risk of harm: [17]-[19]. The Tribunal addressed the applicant’s personal circumstances both in Pakistan and in Australia including his failure to complete his studies and that he had only lodged a protection visa application shortly prior to the expiry of his student visa: [20]-[22]. Other aspects of his family history were also explored: [23]-[27].
When the Tribunal put to the applicant that its main concern arose from the claim his father had been integral to the capture of 150 Al Qaeda members and their being taken to Guantanamo Bay (in 2001) and his kidnapping (in 2008), his representatives sought and were afforded an opportunity to respond in a post hearing submission: [28]-[29].
The Tribunal found the applicant’s evidence regarding his claims to lack credibility. The Tribunal did not find the applicant to be an entirely reliable, credible or truthful witness, and found that he had fabricated much of his claim in order to be granted a protection visa: [33].
Concerning the claim to fear harm as a result of his father’s profile, the Tribunal did not accept that the applicant’s father was of any interest to the Taliban or pro-Taliban elements of Pakistani intelligence or had been kidnapped, beaten and released for ransom: [34]-[39]. It is convenient to address these issues in further detail below.
Concerning the applicant’s claim to fear harm as a result of his brother’s profile, the Tribunal accepted that the brother was a US citizen who had worked in Afghanistan but did not accept that this was known to anyone in Pakistan: [40]-[41]. The applicant submitted that the Tribunal’s consideration of the claim based upon his brother’s role as an interpreter was not relevant to the matters that are the subject of this application.
The Tribunal did not accept that the applicant was of interest to the Taliban or pro-Taliban elements of the Pakistani intelligence agencies (in circumstances where it had rejected the claims that his father and brother were of interest to the Taliban): [42]. It considered the following: the lack of attention which the applicant had received since 2011 despite his family having lived in the same house from that time: [43]; the delay in lodging a protection visa application, coupled with his return travel to Pakistan in 2014: [44]. The documents supplied by the applicant were given little weight; the Tribunal noting an endemic problem with document fraud in Pakistan and the lack of credibility that was attached to the applicant’s evidence overall: [45].
Having considered those matters individually and cumulatively, the applicant’s claims, including claims to complementary protection, were rejected: [46].
Procedural history
On 6 October 2016, the applicant lodged a claim for judicial review together with an affidavit to which was attached a copy of the Reasons.
On 14 October 2016, the Minister filed a Response, seeking dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.
On 20 April 2020, the applicant filed an amended application. On the same date, his lawyer filed an affidavit to which he exhibited a copy of a DFAT Country Information Report-Pakistan dated 15 January 2016.
Shortly before the hearing, the applicant’s lawyer filed a further affidavit to which was exhibited the transcript of the hearing before the Tribunal. As was submitted for the applicant, the sole purpose of the affidavit was to prove a negative; namely, that the Tribunal member nowhere identified his expertise in a way as would provide a foundation for the unstated assumptions which are now the subject of challenge.
Judicial review
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[5] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[5]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration – illogicality
The amended application for review contained one ground of review:
The findings that the Tribunal made at [35]-[37] and [43] of its reasons that were ‘reasonable to believe’, were findings that were illogical, irrational or not founded on any probative evidence.
The applicant contended that the Reasons disclose that the Tribunal made unwarranted assumptions that lacked any logical connection to the evidence. It is convenient to set out the impugned passages, including some of those which precede and follow them. For convenience, the introductory words of key propositions are marked:
Taliban interest in father
34.I do not accept that the applicant's father is of any interest to the Taliban or pro-Taliban elements of Pakistani intelligence, that his father was kidnapped by them, beaten and released for ransom, that his uncle was also kidnapped or that several schools they controlled were burnt by the Taliban. To begin with, there is an inconsistency in what the applicant claimed his father did and what happened to him as a result of this. Despite claiming that his father was responsible for informing the Pakistani government of the whereabouts of 150 al-Qa'ida members who had come across from Afghanistan at the end of 2001/start of 2002 and who were subsequently incarcerated in Guantanamo Bay as a result, little happened to him as a consequence.
35.It is reasonable to believe that there would have been some retribution carried out against the father or his family given the gravity of the issue. If al-Qa'ida or the Taliban (who I accept have been generally supportive of al-Qa'ida) had been inclined to target the applicant's father as revenge it is reasonable to believe that they (and/or pro-Taliban elements in the Pakistan intelligence agencies with their access to government-held information) would have been able to track down the father in the six years between 2002 and 2008.
36. I do not accept that the Taliban were unable to find him or because he was very cautious. The applicant claimed that his father stayed with them for approximately a week in a month but also lived in the village (in Kurrum Agency) and in Islamabad. It is reasonable to believe that in the six years prior to 2008 the Taliban would have been able to locate the father in his village if not elsewhere, regardless of when or for how long he stayed there. The fact that they never did leads me to find that this was because they never sought him. I also do not accept that the fear of the Taliban was only real after 2007 and the beginning of the 'Kurram Agency War' began. This was not an aspect raised until after the hearing, he claimed elsewhere that nowhere in Pakistan was out of range of the Taliban, nor did it account for the activities of the pro-Taliban Pakistan intelligence agencies whom the applicant also feared as a consequence of the incarceration of the 150 al-Qa'ida members.
37. Given the gravity of the anti-jihadist action taken by the applicant's father it is also reasonable to believe that the Taliban and/or the pro-Taliban Pakistani intelligence agencies would have sought to target the family, if for no other reason than to flush out the father. The applicant lived in the same hostel in Peshawar Public School from 2000-2004 without incident, then from 200507 in Hyatabad alone and then with his family from 2007-11. His family lived in Kurrum Agency in the same house until they moved to Hyatabad in 2007. Although the applicant and his family had been in the same location for years nothing ever occurred to them, which is inconsistent with the degree of interest that the Taliban had in the applicant and his family, as well as the fact he claimed that there was nowhere in Pakistan that was out of range of the Taliban.
38. I also do not accept that the applicant's father had been kidnapped by the Taliban in 2008 but was released after being beaten. If the Taliban had been searching for the applicant's father for more than six years for such a serious act of what they considered betrayal it lacks credibility that, having found him they would simply beat him up and let him go. Then, having let him go they would continue to search for him but be unable to find him even though he remained part of the time in the same village in Kurrum Agency that he had for years.
39.-41.. . .
Interest in Applicant
42.. . .
43.Given the family had resided at the same house since 2011 it is reasonable to believe that the Taliban and/or pro-Taliban intelligence agencies would have been aware of this location and known that the applicant had arrived at and was staying there. The lack of attention paid to him during this visit, as well as his willingness to undertake it, is reflective of the lack of threat that he faces in Pakistan.
The gravamen of the applicant’s challenge to the Tribunal’s decision was the series of propositions at [35], [36], [37] and [43], each of which were couched in terms that it was reasonable to believe a particular event would or would not have occurred in the context of the applicant’s claim that his father had engaged in conduct in 2001 leading to the arrest, detention and transfer of 150 Al Qaeda members to Guantanamo Bay.
The applicant based his challenge upon the statement of principle in Minister for Immigration and Citizenship v SZMDS,[7] to the third form of illogicality sufficient to ground jurisdictional error that was identified; namely, that there was no logical connection between the evidence and the inferences drawn by the decision-maker. Two illustrations were provided of decisions in which an unwarranted assumption had been made by a decision-maker that was not based on any probative evidence.
[7] (2010) 240 CLR 611, [135] (Crennan and Bell JJ).
In BZD17 v Minister for Immigration and Border Protection,[8] a Full Court rejected as being ‘unwarranted’, an assumption that information about an assault the appellant said had been committed on him ‘could have been passed on anonymously to activists outside Cameroon for them to post on social media’ so as to corroborate the claim. While the absence of any social media post to corroborate the claim had led the Tribunal to conclude that the assault never occurred, the Full Court explained that the assumption was unwarranted because the premise that information about the claimed assault ‘could have been’ passed on to others to post on the internet, ‘was not supported by any evidence’.
[8] [2018] FCAFC 94; 263 FCR 292, [36], [58].
Again, in SZHYH v Minister for Immigration and Border Protection (No 3),[9] one of several defective assumptions made by a Tribunal was that, as a condition of bail, Chinese authorities would have required the appellant to surrender his passport. The appellant claimed that he had been arrested for political reasons but granted bail, and that he had then left the country whilst on bail. The Tribunal had relied on its assumption about passport surrender to conclude that the fact the appellant left the country, using his passport, meant that he was not of any interest to authorities. Allsop CJ held as to this assumption that there was no basis in the country information, any other material or expressed expertise, as a critical factor for a finding of disbelief. The applicant also identified another erroneous assumption that following the applicant’s participation in a protest, the authorities would not have waited two weeks to arrest the appellant. Allsop CJ had posed the rhetorical question: “Why, one asks, is it difficult to accept. Again this is a personal assumption made without any apparent connection with country information, material or common experience of Chinese authorities.” The reasoning confirms that the criticality of the assumptions to the claims being made played no small part in the determination that the assumptions had been unwarranted.
[9] [2019] FCA 589; (2019) 165 ALD 463, [46], [48].
Applying those principles to the present case, the applicant submitted that the matters addressed by the Tribunal in [35], [36], [37] and [43] of the Reasons as being unwarranted assumptions which were not the subject of any evidence before the Tribunal and that none had been cited by it in relation to each of the impugned statements. Relatedly, it was submitted that, had there been evidence to support the findings made, the Tribunal would have (been obliged to) referred to that evidence.[10]
[10] Act, s 430(1)(d).
Resolution
The applicant’s attack upon the supposed illogicality or irrationality of the Reasons above does not fall for consideration in a vacuum.
It was for the applicant to advance whatever evidence of argument he wished to advance in support of his application for review by the Tribunal.[11] Proceedings before the Tribunal are inquisitorial, not adversarial; the decision-maker not being a contradictor. Once the applicant had advanced the evidence and argument he wished to make, it was for the Tribunal to decide whether it was made out. As counsel for the Minister sought to emphasise, the challenge of illogicality and irrationality fell for consideration in the context of the claims made. Specifically, in seeking a merits review by the Tribunal of the decision to refuse his protection visa application, the applicant had appeared before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, making pre and post hearing submissions. In my view, comparatively little was said in support of the claim that his father had informed on the Taliban in 2001 and earned their enmity.
[11] Abebe v The Commonwealth (1999) 197 CLR 510, [187] (Gummow and Hayne JJ).
I have summarised above the claims as made in the protection visa application. At that point nothing was said of the 2001 claim. Further, and as noted above, it was only in the course of his interview with the delegate that the applicant added the further claim that in 2001 his father had earned the enmity of Al Qaeda and the Taliban as a result of his having reported on 150 members of Al Qaeda; those members who, once captured, had been sent to Guantanamo Bay. Those circumstances were said to have resulted in his father being cloaked by the Taliban with the stigma of an informer and traitor which constituted a substantive basis upon which the applicant claimed that he (as a member of his father’s family), had a well-founded fear of harm. Contextually, the second substantive basis upon which the applicant claimed that he (as a member of his father’s family), had a well-founded fear of harm was his father’s involvement in 2008 in apparently seeking to broker a resolution of a land dispute between the members of his tribe and an adjoining tribe, which dispute the Taliban wanted resolved. And more broadly still, the applicant’s factual case was that nothing adverse had happened, either to his father or to his mother, siblings or himself in the periods 2001-2008 or 2008-2014 to harm any of them or to ‘flush out’ the father. Upon those core facts, the Tribunal was to evaluate for itself whether it was satisfied that the applicant had a well-founded fear of persecution, including by drawing such inferences as were open to be made upon the evidence given. In particular, the process of inferential reasoning allowed the Tribunal to consider how the evidence identified events which had not occurred in the evaluation of whether it was satisfied that the applicant faced a well-founded fear of persecution.[12]
[12] Wigmore on Evidence, (1983), Vol 1A, ⸹30, pp.982-988.
Standing back from it, the fact of the introduction of the 2001 incident was itself a most significant matter which the Tribunal was entitled to take into account in considering whether it was satisfied of the plausibility of the applicant’s claim. Having introduced the 2001 incident as a foundation for his claim, the Tribunal was also entitled to consider whether it was satisfied of the original claim that the father – who was then considered an informer and traitor – involved himself in 2008 in brokering a land dispute (which the Taliban wanted resolved).
In Attorney-General (NSW) v Quin,[13] Brennan J stated:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[13] (1990) 170 CLR 1, 35-36.
The principles stated in Quin have been repeatedly endorsed.[14] They were relied upon by the plurality in an equally celebrated passage in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[15] as explaining the reality of why, when reviewing the reasons of decision-maker, those reasons are meant to inform whether they exposed error in the decision. Kirby J, who also recognised the importance of those principles, noted the need to avoid double standards in the consideration of reasons by legally qualified persons and those who were not.[16]
[14]Eg, Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [82] (Nettle and Gordon JJ).
[15](1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[16](1996) 185 CLR 259, 291.
The two-fold caveats against scrutinising reasons in an overly zealous manner or with an eye keenly attuned to error[17] hardly need repeating. However, they draw attention to the importance of recognising that unless those principles are adhered to, the courts become exposed to the risk of criticism of having embarked impermissibly upon a merits review of the decision.[18] To do otherwise may be productive of inconsistency in decision-making, with disaffected parties simply treating their initial application for judicial review as little more than a turn-style through which to pass to yet a further level of review. Through that progression of review, at an appellate level, the prism of logic and rationality in reasoning might be thought to gain an acuity or clarity of vision that is to be expected of administrative decision-makers working in a high volume environment. In other, quite unrelated spheres, federal courts have recognised the real importance of certainty as a safeguard against idiosyncratic decision-making and of the need for a coherent system of laws upon which the rights of parties are to be determined.[19] Such values and considerations are no less important in administrative law.
[17]Wu Shan Liang (1996) 185 CLR 259, 272 citing Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).
[18]Cf Tran v Minister for Immigration and Border Protection [2019] FCAFC 126, [116] (Greenwood, Charlesworth and O’Callaghan JJ).
[19]Eg, Paciocco v Australia & New Zealand Banking Group Ltd (2015) 236 FCR 199, [264]-[265], [296] (Allsop CJ), [371] (Besanko J), [398], [402] (Middleton J); Olson v Keefe (No 3) ) [2018] FCA 2001, [27] (Bromwich J); Wigmore on Evidence, Vol 1A, ⸹30, p. 988.
None of those observations is to gainsay the importance for protection visa applicants upon judicial review of the close examination of their claims and the reasons of the administrative decision-maker.
It has been suggested that the test for illogicality or irrationality requires that it be of an extreme kind: CQG15 v Minister for Immigration and Border Protection.[20] This statement may be understood as underscoring the need for particular caution where credibility findings are at issue and that even emphatic disagreement with a decision-maker’s reasoning may not be sufficient to support a conclusion of jurisdictional error. At the least, it may be accepted that “the stringency of the threshold arises in the need for the decision maker’s reasoning to be capable, objectively, of being described as irrational or illogical”: AWU16 v Minister for Immigration and Border Protection.[21] There, Mortimer J also accepted that the statements in Wu Shan Liang[22] (describing the high threshold to be imposed before a finding of jurisdictional error in a challenge based upon irrational or illogical reasoning), had been endorsed repeatedly.
[20] (2016) 253 FCR 496, [60]-[61] (The Court).
[21] [2020] FCA 513, [23]-[25] (Mortimer J).
[22](1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); cf 291 (Kirby J).
Attention was also drawn to the statements in BFH16 v Minister for Immigration and Border Protection[23] where the plurality, accepting that the Tribunal was not bound by the laws of evidence, observed that it was constrained in the exercise of statutory power under s 65 by an implied condition to arrive at the state of satisfaction required by that section, rationally, and that this included “the implied condition that findings of fact be based upon evidence that is rationally probative of the fact in issue.” Murphy and O’Bryan JJ stated:
A fact is rationally probative of another fact (and thereby relevant at common law and under statute) if the fact, according to the ordinary course of events and either taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or non-existence of the other fact: Goldsmith v Sandilands.[24] Two aspects of the foregoing definition should be highlighted. First, the assessment is based on the ordinary course of events. It is an “objective test grounded in human experience”: Harrington-Smith v Western Australia (No 7)[25]. Second, while an individual fact taken by itself may not be probative of a fact in issue, it may be probative when considered with other facts and the assessment must be made in the context of all other evidence.
The reference in that passage to Goldsmith v Sandilands, included a citation to Stephen’s Digest of the Law of Evidence that “Any two facts to which it is applied are so related to each other that according to the common course of events, one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence r non-existence of the other.” This statement of principle is described in Cross on Evidence as being “difficult to improve on”.[26]
[23] [2020] FCAFC 54, [34], [40]-[41].
[24](2002) 190 ALR 370; 76 ALJR 1024; [2002] HCA 31, [31] (McHugh J) citing Stephen’s Digest of the Law of Evidence (5th Ed, 1887), Art 1.
[25] (2003) 130 FCR 424, [11] (Lindgren J).
[26] 12th Ed’n (2020), [1490].
In SZMDS, Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error must mean that the decision reached was one which no rational or logical decision maker could arrive at on the same evidence. [27] Their Honours accepted that not every lapse of logic would give rise to jurisdictional error, observing that “If probative evidence could give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the reasons to be drawn from the evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”[28] Crennan and Bell JJ further held that the “correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it did engage in and to make the findings it did make on the material before it.” [29] Heydon J agreed in the result as found by their Honours.[30] Although dissenting in the appeal, Gummow ACJ and Kiefel J emphasised that the critical question as to whether a decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds “should not receive an affirmative answer that is lightly given.”[31]
[27] (2010) 240 CLR 611, [130].
[28] (2010) 240 CLR 611, [131].
[29] (2010) 240 CLR 611, [133].
[30] (2010) 240 CLR 611, [77]-[78].
[31] (2010) 240 CLR 611, [40].
I agree in the Minister’s submissions that the applicant seeks to elevate the Tribunal’s reasoning in assessing the plausibility of the applicant’s claims to the status of material findings of fact. The material finding of fact in this case was whether the applicant held a well-founded fear of persecution, relevantly, by reason of the claims involving his father in 2001, 2008 and in the specific context that neither he, his spouse nor any of his children had been subjected to harm in the periods 2001-2008 or, save for the claim of the father’s kidnapping and beating, in 2008-2014.
As stated, it was for the applicant to establish his claims and the Tribunal did not need to have rebutting evidence available before it could lawfully hold that a particular factual assertion by the applicant was not made out.[32] The Tribunal did not occupy the role of contradictor and it was for the applicant to put before it the material on which he relied in seeking to satisfy the criteria applicable to this visa. The extent to which he had supplied fulsome or deficient evidence, material or submissions may in part indicate the proportionality of the response reasonably to be required of the Tribunal in determining whether it had been satisfied that the criteria for a protection visa had been met.
[32]Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALR 347, [7]-[8] (Heerey J).
The Tribunal’s core function in conducting a merits review of the application involved the determination of whether it was satisfied that the criteria for the grant of a protection visa were met. This required consideration of whether it was satisfied that the applicant’s claims supported a finding that he had a well-founded fear of persecution for the reasons claimed. Having regard to the introduction of the claim of his father’s involvement in the 2001 incident and the original claim that his father had been involved in 2008 in a kidnapping, beating and release, it was for the Tribunal to evaluate whether those claims were plausible. Having regard to the claims that were put forward and the evidence and submissions relied upon, the Tribunal concluded it was not so satisfied that the applicant had a well-founded fear of persecution. In this context, counsel for the applicant properly accepted that, had the Reasons merely recorded this conclusion, it would have been acceptable.
The vice upon which the applicant seized was that the Tribunal had gone further and adopted a process of deliberation at [35]-[37] and [43] expressed in terms that it was reasonable to believe a particular matter had or had not occurred. In the course of oral submissions, counsel for the applicant properly accepted that given the significance of the 2001 incident, including the consequences for 150 Al Qaeda members, the likelihood of retribution was obvious. Thereby, in my view, the basis for criticism of the impugned passages in [35] and [37] largely fell away. The concession as to the likelihood of retribution implicitly accepted either that there was a reasonable basis for believing there would have been such retribution or, expressed in other terms, in the ordinary course of events, such retribution was to be expected, including of his several family members, if only to try and flush out the father. In my view there was nothing illogical or irrational in this reasoning.
What then remained in the passages at [35]-[36] and [43] was whether was also ‘reasonable to believe’ the Taliban or pro-Taliban intelligence personnel would have known of the location and been able to track down the father or his family in the period 2001- 2014. As counsel for the Minister submitted, the Tribunal’s consideration of this issue did not arise in the context of any claim that the applicant’s father was a leading member of some counter-insurgency group who had remained hidden for a period of over a decade. At its highest, the father travelled to be with his family in their village a week a month. Far from being in hiding, he had apparently involved himself in 2008 in the attempt to resolve a land dispute with an adjoining tribe; this being a matter which the Taliban (who saw his as an informer and traitor), wanted resolved. Before me, it was said that the father’s involvement in 2008 said little to the issue of well-founded fear of harm, as the Taliban personnel involved at that time may not have recognised the father. The logical extension of that proposition perhaps served to illuminate the Tribunal’s reasoning that the lack of attention paid to the applicant, his father and family from 2001 to 2008 and afterwards was all indicative of the lack of any real threat which they, and he, faced: cf [36]-[37], [43].
The essential case put by the applicant in relation to the ability to locate the applicant’s father, his wife, children or the applicant himself was that there was no evidence the Taliban or pro-Taliban intelligence personnel had an “omni-present tracking capability” to locate them at any time. While it was clear the DFAT country information did not provide an evidentiary foundation for such a finding, as was observed in the course of debate, one might challenge the unstated assumption that DFAT would likely disclose intelligence of that kind in its country information reports.
In Thevendram v Minister for Immigration & Multicultural Affairs,[33] Heerey J distinguished between findings of fact upon material issues from observations or comments made by a decision-maker in the course of undertaking the assessment and evaluation of the evidence:
As part of its fact-finding function, the Tribunal was entitled to test the plausibility of the applicant’s accounts by reference to its understanding of human nature and how people react in particular situations; whether the comment that the Tribunal made was one which would appeal to a judge is beside the point. The Tribunal was not obliged to refer to any evidence or other material upon which this comment was based. Indeed, it is in the nature of such a comment that it is not “based” on particular evidence or material, but rather is the Tribunal’s own view of the inherent probabilities or otherwise of the applicant’s account.
This statement has received little consideration since.[34]
[33] [2000] FCA 868, [28].
[34] See M86 v Minister for Immigration & Multicultural Affairs [2006] FMCA 868, [11].
Counsel for the applicant relied upon more recent decisions in seeking to demonstrate, as he did persuasively, that no bright line could be drawn between reasons which were expressed in terms of findings, beliefs or expressions of view, made along the way, to an ultimate conclusion whether the decision-maker had or had not reached the level of Ministerial satisfaction required for the purposes of s 65.
I have referred above to the analysis in BZD17.[35] There, Perram, Perry and O’Callaghan JJ accepted unwarranted assumptions may establish that a finding was illogical, irrational or not founded upon probative evidence.[36] This reasoning was undertaken in the context of the requirement that a decision-maker to undertake an active intellectual engagement with the consideration of the claims in question. In this respect, I accept the applicant’s submission that the Tribunal was required to engage with the claim as a matter of substance, not form. The Tribunal was plainly required to undertake a proper engagement with the claim and not merely to give some incantation of its conclusions. However, as the Full Court made clear, whether the ground of judicial review concerns adverse credibility findings or a failure to undertake a proper, genuine or realistic consideration of the matter, caution is always required in reaching a conclusion that the decision was tainted by jurisdictional error.[37]
[35] (2018) 263 FCR 292, [56], [58] (Perram, Perry and O’Callaghan JJ).
[36] (2018) 263 FCR 292, [33]-[36].
[37] (2018) 263 FCR 292, [37]-[38].
In BFH16,[38] the plurality exposed as unwarranted, assumptions as to how any given persons might react individually, or as a couple, to their first sexual encounter; neither of the appellants being aware of the particular sexual preferences of the other: “It cannot be said that the psychological reactions of a couple to their first sexual experience are matters of common human experience.” As no other relevant evidence had been before the Tribunal, the assumptions had not been proved. While this reasoning may be seen to echo the requirement in relation to opinion evidence that the assumptions upon which an expert’s opinion are based must be proved,[39] it does not address the qualifying requirement (or perhaps exception), that before an administrative decision is held to be affected by jurisdictional error grounded upon illogicality or irrationality, the assumption must be ‘unwarranted’. Inherent in the process of inferential reasoning is that there will aspects of a case where the requirement for probative evidence will be critical to the drawing of the inference and in others where the combined weight of the whole of the evidence, including evidence of facts which did not occur, may suffice to support the inference that is drawn.
[38] [2020] FCAFC 54, [20], [47]-[48] (Murphy and O’Bryan JJ).
[39] Cf Makita (Aust) Pty Ltd v Sproules (2001) 52 NSWLR 705.
Again, as demonstrated in SZHYH,[40] while reiterating the caution which is appropriate to be adopted before concluding that an administrative decision is tainted by jurisdictional error by reason of erroneous fact finding, Allsop CJ observed that before doing so, the conclusion of a failure to carry out the statutory task of review should be seen as seriously irrational, illogical or lacking a material foundation. His Honour stated that there was no formula involved, and that close attention to the reasons was required not for the purpose of ascertaining the facts, but rather for the distinct purpose of deciding whether the approach of the Tribunal was sufficiently lacking in foundation, rationality, or logical coherence in a way that could have affected the outcome so as to be legally unreasonable. Allsop CJ further stated:
The flaw in the fact-finding or treatment of the evidence must be sufficiently seriously illogical, irrational or groundless as to compromise the decision, in that the credit finding can be seen as compromised. (emphasis added)
Accepting that those propositions were made in the context of legal unreasonableness, it does not detract from Allsop CJ’s further observation that the exercise is both case and fact specific.
[40] (2019) 165 ALD 463, [40], [41], [].
As raised in the course of submissions, neither Thevendram, BZD17, BFH16 nor SZHYH appear to address the distinction between the making of findings of fact, drawing of inferences and the making of observations or comments by a decision-maker in the course of assessing and evaluating the claims. As recognised in SZHYH, it is neither possible nor appropriate to address the matter by reference to a single formula. Nor is it possible to state a test in terms which allows one to draw some bright line between those cases where an assumption implicit in the reasoning should be considered to be available and acceptable, from those where it should be regarded as being unwarranted.
Adopting the caution that is appropriate in such cases, to apply the label, ‘unwarranted assumption’, is to express in a conclusory way that the reasoning is tainted without exposing the underlying analysis of whether the particular assumption was one which required probative evidence before it could properly be made. To say as much is to recognise the case specific nature of whether a decision is affected by illogicality or irrationality. Equally, the use of such labels distracts attention from whether, in the circumstances of a specific case, the adoption of the impugned assumption should be seen as requiring a conclusion that the decision was sufficiently lacking in foundation or that it was sufficiently seriously illogical, irrational or groundless so as to compromise the decision itself. Considered from those perspectives, the reasoning in SZHYH can be seen as reinforcing the importance of the principles sated in Quin above. Equally, it should be accepted that, in a specific case, it may be entirely legitimate for the decision-maker to consider whether, “when all matters were taken together, they accorded with the probabilities of ordinary human experience such as to be implausible”.[41]
[41]The Republic of Nauru v WET040 (No 2), (2018) 93 ALJR 102, [35] (Gageler, Nettle and Edelman JJ).
In ACE17 v Minister for Home Affairs,[42] Jackson J recognised that the process of reaching the necessary state of Ministerial satisfaction may involve error where the decision was sufficiently illogical or irrational. His Honour noted that the framework for evaluating a claim of illogicality or irrationality had been stated in various ways including that the decision: was not based on findings of fact or inferences supported by logical grounds; was based on findings or inferences of fact which were not supported by some probative material or logical grounds; or, was not based on findings or inferences of fact supported by logical grounds. Jackson J endorsed the test stated in SZMDS that the test “must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.”
[42] [2020] FCA 514, [37]-[40].
With those principles in mind (and putting aside the applicant’s other claims), it is useful to consider the precise nature of the issue that was before the Tribunal insofar as the applicant grounded his claim on the fear of harm arising from his father’s profile as an anti-Taliban and pro-government supporter who had informed on the Taliban in 2001 and involved himself in the resolution of a land dispute in 2008. Counsel for the applicant confirmed that this claim was derivative of the harm which the father was said to face in light of the events described earlier.
In evaluating these claims, it may be accepted that the evidence does not enable any conclusion to be drawn in relation to the particular personal expertise of the Tribunal member.[43] However, it was legitimate for the Tribunal to consider whether, when all matters were taken together, they accorded with the probabilities of ordinary human experience such as to be implausible.[44] Contextually, the Tribunal was concerned to evaluate whether, in light of the father’s claimed involvement in 2001 in informing on the Taliban, coupled with the consequences which that carried for 150 Al Queda members, it was probable, according to the ordinary course of events, as to suggest the father, or his wife, three daughters or two sons, might not have come to harm in the period 2001-2008 (or following the kidnapping and release in 2008, from 2008-2014), in retribution for that conduct. Viewed in that way, the Tribunal’s evaluation of the plausibility of the claims included consideration of facts which did not occur. The Tribunal was required to assess, on an objective basis, the probability of whether the claims were plausible based upon the whole of the evidence and to ground its evaluation on human experience: BFH16.[45] In my view, on a fair reading of the Reasons, it did so. As counsel for the Minister submitted, the key issue for the Tribunal was whether the applicant faced a real risk of persecution because of, relevantly to the application for judicial review, his father’s profile and the matters in which he was said to have been involved in 2001 and 2008 and having regard to the absence of the father or any member of the family having suffered any harm at any other time.
[43]Cf Muin v Refugee Review Tribunal (2002) 190 ALR 601, [7], [24], [291]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 501, [180]-[181].
[44] The Republic of Nauru v WET040 (No 2) (2018) 93 ALJR 102, [35].
[45] [2020] FCAFC 54, [40]-[41] (Murphy and O’Bryan JJ).
The Tribunal’s examination of the claim to hold a well-founded fear of harm based upon the Taliban’s interest in his father is at [34]-[39]. This examination is to be considered in light of the reasoning as a whole; in particular, the Tribunal’s consideration of the applicant’s evidence at [10]-[17], [25]-[29]. The analysis of the Tribunal was essentially that:
a)the applicant claimed his father stood against Taliban ideology and rejected their presence in the Kurrum agency: [10];
b)his father’s only practical involvement related to the Taliban had been to inform the government in 2001-3 that the Taliban were ‘coming’ (thereby allowing the deployment of Pakistani troops along the Afghanistan border), and in relation to a land dispute between his tribe and another tribe in 2008 which, the applicant claimed, the Taliban wanted to see resolved: [11];
c)his father had not been the subject of targeting from the Taliban in the period 2001-2007, or again, between 2008-2014: [12]-[14];
d)his parents had not immediately emigrated to the United States and his other family members, who had remained in Pakistan, had remained there without incident: [15]-[16];
e)the applicant initially claimed to fear harm from being targeted as early as 2001, but changed this date to 2008: [17];
f)it seemed extraordinary that, had his father been of any real interest to the Taliban, he had not been kidnapped until 2008 and, despite having incurred their enmity for making the report in 2001 which resulted in 150 Al Qaeda members being captured and transferred to Guantánamo Bay, neither he, nor his family, had been the subject of retribution (before or after 2001, or 2008): [25]-[29].
Having regard to its consideration of the applicant’s claims and evidence, the Tribunal did not accept, relevantly, that his father was of any interest to the Taliban: [34]. The springboard for the Tribunal’s analysis was to identify the inconsistency between the applicant’s claim of what his father had done and what had (or more accurately, had not), happened to him as a result: [34]. The Tribunal clearly rejected as incredible the applicant’s claim that his father had been responsible for informing on the whereabouts of 150 Al Queda members in 2001, yet had not been the subject of specific targeting before 2008. It was in this sense that the Tribunal expressed its Reasons in terms of it being reasonable to have expected that the applicant’s father or his family would have been the subject of retribution, particularly given the gravity of having informed on them in the manner claimed by the applicant. To have expressed its Reasons in this way may be fairly read as indicating the Tribunal’s view of the matter according to ordinary human experience. Counsel for the applicant properly accepted that retribution was a probable outcome.
The Tribunal also reasoned that the Taliban or pro-Taliban elements would have been able to track down his father in the period 2002-2008: [35], [36]. Contrary to the applicant’s submission, there was some evidence of the address at which the applicant said that he and/or his family had resided in the period after 2002: [25]-[26]. The process of inferential reasoning by which the Tribunal considered whether, as a matter of common sense, it was proper to conclude that the Taliban or pro-Taliban elements in the Pakistan intelligence agencies may have been able to track down the father in the period 2002-2008 occurred in the context that, upon the applicant’s claim, his father, a tribal elder, had had lived (in at least one week a month), with his family whose residence had been static during that period. It was not a case advanced on the basis that the father had been in perpetual hiding. To the contrary, the basis on which the claim had been put originally was that the father had been involved in 2008 in seeking to address the inter-tribal land dispute – a dispute which the Taliban wanted to see resolved.
In a similar vein, the Tribunal characterised the father’s supposed involvement in informing upon the 150 Al Queda members in 2001 as being a matter of gravity: [35], [37]. Such characterisation seems entirely rational and logical in light of the applicant’s claim that his father’s conduct produced the result for 150 Al Qaeda members of being located and then transposed to Guantánamo Bay. It is difficult, with respect, to see why it would not be reasonable to believe that the Taliban and pro-Taliban elements may have sought out any of the applicant’s family members if only for the object of flushing out the father: [37]. Instead, as the Tribunal observed, the applicant’s family had lived in the same house in the Kurrum Agency, yet nothing had happened to them. Upon those bases, the Tribunal found the absence of any adverse incidents was inconsistent with the applicant’s claim that there was nowhere in Pakistan which was out of range of the Taliban: [37]. Further, the Tribunal observed the mere kidnapping, beating and return of the applicant’s father in 2008 was itself inconsistent with: (1) the claim that the father had informed upon the 150 Al Queda members in 2001; (2) the father and his family suffering no harm in the period 2001-2008; (3) the notion the Taliban would have been unable to relocate the father in the period between 2008 and his departure to the United States: [38].
The Tribunals consideration of whether the applicant was the subject of any interest from the Taliban or pro-Taliban elements is at [42]-[48]. The Tribunal rejected the applicant’s claim to fear harm, doing so on the substantive basis that it had rejected, relevantly, the primary claim that his father was of interest to the Taliban or pro-Taliban elements.
In pressing the submission of illogicality and irrationality, the applicant criticised the Reasons at [43] where the Tribunal observed that his family had resided at the same house since 2011 and upon that basis it was “reasonable to believe that the Taliban and/or pro-Taliban intelligence agencies would have been aware of this location and known that the applicant had arrived at and was staying there.” The impugned statement contains essentially two propositions. First, that it was reasonable to believe the Taliban and/or pro-Taliban intelligence agencies would have been aware of the location where his family resided. Having regard to the applicant’s claim (first made before the delegate), that his father had incurred the enmity of the Taliban for informing upon them in 2001, I consider that there was some evidence for the first proposition above. The second proposition was that the Taliban and/or pro-Taliban intelligence agencies would have known the applicant was staying with his family. While I accept that this proposition is open to scrutiny and one about which reasonable minds might well differ, I do not accept that it is tainted by a sufficiently serious level of illogicality necessary to sustain a conclusion of jurisdictional error.[46] As stated above, the applicant’s claim to a well-grounded fear of harm stemmed from the risk of harm which he claimed was presented by his father’s profile and involvement in events in 2001 and 2008. Given the proportionate response that was to be expected of the Tribunal, the existence of a direct risk to the applicant was largely dependent upon whether the father’s profile gave rise to a real risk. And that fell for consideration in light of the absence of any harm over many years.
[46]AWU16 v Minister for Immigration and Border Protection [2020] FCA 513, [24]-[28] (Mortimer J).
The Tribunal’s consideration whether the applicant faced a well-grounded fear of harm also fell for evaluation in the context: (1) that in 2014, he had returned to Pakistan, living with his family for ~50 days; (2) the delay in applying for a protection visa was not insignificant.
In my view, the facts of the present case may be readily distinguished from those arising in BZD17 where a decision-maker had effectively speculated that information about an assault could have been passed on anonymously to activists outside Cameroon for them to post on social media. Here, it was the applicant’s direct evidence which grounded the claim his father had incurred the enmity of the Taliban and that, despite this, his father had not been the subject of any incident in the period 2001-2007 or 2009-2014.
The present case may also be distinguished from cases where the suggested adoption of an unwarranted assumption resulted in a failure to consider the questions raised by the claims which the applicant put before the Tribunal: cf SZVAP v Minister for Immigration and Border Protection.[47] So too, it may be contrasted with a challenge arising in circumstances where an applicant had made detailed claims supported by extensive evidence and submissions, but a decision-maker had focussed in an irrational manner on the minutiae of one aspect of a claim, then inviting an applicant to speculate about that aspect of the matter as a basis for making adverse credibility findings: AWU16.[48] It may also be contrasted with cases where an unwarranted assumption of a person’s expected psychological response to a particular event: BFHG16.[49]
[47](2015) 233 FCR 451, [22] (Flick J); CQG15, (2016) 253 FCR [40]-[42]; AWU16, [2020] FCA 513, [27]-[28] (Mortimer J).
[48] [2020] FCA 513, [37]-[45].
[49] [2020] FCAFC 54, [47] (Murphy and O’Bryan JJ).
Equally, this case may be distinguished from SZHYH, where country information or other material might have been expected in relation to the practice of Chinese authorities to require the surrender of a passport as a condition of bail. The type of information with which the present case is concerned is of an entirely different kind. In SZHYH, Allsop CJ exposed the difficulty inherent in the assumption that, following the appellant’s involvement in a protest, authorities would not have waited two weeks to arrest him. Unsurprisingly, the court asked: Why not?
The gravamen of the applicant’s case was that there was no basis for an assumption that the Taliban or pro-Taliban government agencies would have had the omni-present tracking capability to locate him. While the applicant demonstrated that the DFAT country information provided no basis for such an assumption, when asked whether it might seriously be expected that, seized of such intelligence, it would have been disclosed in a DFAT country report or equivalent Pakistani report, counsel recognised that this was probably a “Big question”.
The applicant’s evidence to the delegate was that his father had incurred the enmity of the Taliban in 2001 for having informed on 150 Al Queda personnel leading to their detention in Guantanamo Bay and that his father (and family) had not been targeted at any time between 2001-2008 or, until their emigration to the United States, between 2008-2014. Even allowing for the view that reasonable minds might differ on the question, in deciding whether the applicant faced a well-founded fear of harm, it was entirely reasonable for the Tribunal to have evaluated whether it was plausible that the father and his family had not been targeted by the Taliban or pro-Taliban elements at any time in those periods, particularly in circumstances where the 2001 incident had first been made during the applicant’s interview with the delegate and not earlier.
The amended ground of review is rejected.
Conclusion
In the circumstance that I have rejected the amended ground of review, the question of materiality does not arise. For the reasons above, the application should be dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 7 May 2020
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