DJG20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 11
•13 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJG20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 11
File number(s): SYG 1728 of 2020 Judgment of: JUDGE LAING Date of judgment: 13 January 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to give proper consideration to the review material – whether the IAA failed to consider the applicant’s claims by reference to the reasonably foreseeable future and related submissions – whether the IAA made unreasonable findings or unreasonably failed to exercise its power to invite new information – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 473DC, 473DD, 473FB Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64
Division: General Number of paragraphs: 63 Date of hearing: 24 October 2024 Place: Sydney Counsel for the Applicant: (Direct Access) Mr C Honnery Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: MinterEllison Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1728 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJG20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
13 JANUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
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 LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Pakistan who arrived in Australia in 2013 as an unauthorised maritime arrival.
In 2017, the applicant applied for a protection visa. On 25 May 2020, the Delegate refused the application. The matter was then referred to the IAA for review.
On 26 June 2020, the IAA affirmed the decision of the Delegate.
THE IAA’S DECISION
The IAA observed that it had received emails from the applicant since the Delegate’s decision. The emails included embedded images, a range of documents, as well as some comments by the applicant (at [3]-[4]). The IAA declined under s 473FB(5) of the Migration Act 1958 (Cth) (Act) to accept untranslated material (at [6]). The IAA found that the requirements of s 473DD were met in relation to other new information (at [7]-[9]).
The IAA accepted the applicant’s claims about general violence happening whilst he was in Pakistan and regarding his family, address, work and education history (at [16]). At [17]-[18], the IAA reasoned as follows in relation to the applicant’s claim to have been robbed and threatened by the Taliban:
17.Although he consistently claimed the incident happened, there are a few issues with his claim that he was stopped, threatened and robbed by the Taliban while driving his taxi in 2013, as follows:
•In his arrival interview (June 2013) and his SHEV application (March 2017) he suggested he identified the robbers as Taliban because they had long hair and were armed. During his SHEV interview (August 2019) he initially suggested that after the incident and he got home he told his father about it and his father said the men were Taliban. Later in that interview he said the man who spoke to and robbed him said they were the Taliban. In his post-SHEV interview submissions (September 2019) the summary of his claims notes he was stopped by three armed men who he had good reason to accept were members of the Taliban. Although whether it was he or his father who identified them as possible Taliban members is not particularly significant, his claim at the SHEV interview that the robber told him that they were Taliban is a significant change.
•In his arrival interview, SHEV application and at the SHEV interview he indicated the incident occurred at the end of his (working) day. However he said in his SHEV application that he was on his way home but in the SHEV interview and post-SHEV interview submissions he indicated he was on the way to the bazaar. Additionally, he claimed for the first time in his SHEV interview that there was a passenger with him when he was stopped. This is a significant change in his evidence. I also do not consider it credible that, if there was a passenger, the men who stopped him would rob the applicant but not, as the applicant claimed, rob the passenger.
•If the men who stopped him were Taliban, their behaviour is somewhat curious. The country information discussed below suggests the Taliban used to target Shias on the roads around Parachinar and that some Shias can be identified by common Shia names, addresses that indicate they are from predominantly Shia areas and some have permanent marks on their bodies from religious observances. The armed men do not appear to have taken any action to establish if the applicant was a Shia, even one as basic as looking at his ID card. His claim at the SHEV interview that they knew he was Shia because all taxi drivers in Parachinar were Shia was unconvincing. Additionally, if it were true that he had a passenger, it does not seem credible that the Taliban member who came to the car made no effort to check if the passenger was Shia as well. Further, the country information suggests there was at the time a level of ferocity in the Taliban’s dealings and encounters with Shias, particularly in and around Parachinar/Upper Kurram. In such an environment, the Taliban choosing to give the applicant another chance and warning they would kill him next time they found him driving a taxi seems less than credible.
18.Based on his consistent evidence that there was an incident just before he left Pakistan where he was robbed by armed men, I am prepared to accept that the taxi robbery took place. However, I am not satisfied that he had a passenger with him at the time; that the robbers were members of the Taliban; that the robbers threatened to kill him if they found him driving a taxi again; and that it was anything other than an isolated criminal act.
The IAA accepted that the applicant’s family lived in the Parachinar area and that this was the area where the applicant would live if he were to return to Pakistan (at [19]).
After considering country information and the applicant’s circumstances, the IAA found that it was not satisfied there was a real chance the applicant would suffer any harm from the Taliban or other anti-Shia militants or anyone else in the reasonably foreseeable future if he were to return (at [33]). This reasoning of the IAA will be considered further below.
The IAA accepted that it may take time for the applicant to establish himself and that he may face difficulties for reasons including an inability to work. However, the IAA was satisfied that his family would be able to provide him with support. The IAA was not satisfied that there was a real chance of the applicant facing harm capable of meeting the definitions of serious or significant harm on account of difficulties in reestablishing himself, nor on account of difficulties in accessing medical care (at [34] and [44]-[45]).
The IAA accepted that the applicant would be identifiable as an asylum seeker if he were to return to Pakistan. The IAA was satisfied that the applicant would be capable of returning without being questioned if he returned voluntarily. The IAA was satisfied that the applicant would be released within a couple of hours after interviewing if he returned involuntarily, without suffering serious or significant harm. The IAA considered the chance of the authorities becoming aware of the applicant’s asylum claims to be remote. The IAA was not satisfied that there was more than a remote chance of the applicant suffering harm whilst travelling to his home area. The IAA did not consider that country information suggested returnees from the west were targeted and was not satisfied that the applicant would face a real chance of harm on this basis (at [23], [37] and [46]).
Having regard to the above, the IAA was not satisfied that the applicant met ss 36(2)(a) or 36(2)(aa) of the Act (at [40] and [48]). Accordingly, the IAA affirmed the Delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 20 July 2020. The applicant ultimately relied upon a further amended application containing the following grounds:
1.The Authority’s decision is affected by jurisdictional error because it failed to give proper consideration to the review material, namely:
(a)submissions highlighting relevant issues raised by the country information; and/or
(b) relevant passages of the 2019 DFAT report on Pakistan.
Particulars
a) The applicant’s representative submitted at CB 145:
“With respect to the heightened fears for Turi’s (sic) DFAT’s February 2019 provides that”:
While minorities feel more protected, according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence [(see Shi'a)] and greater presence of the Taliban and Al Qaeda. Turis face some risk of violence while travelling by road to Iran and Iraq on religious pilgrimage, although DFAT understands the government provides security assistance for such journeys (see Shi’a). Turis also express concern that the civil war in Syria was spilling over into Kurram and that ISIL, based in Nangarhar, is getting stronger” (the ‘heightened fears for Turis submission’).
b)The applicant’s submissions also highlighted at CB 145 – 146 that DFAT “assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA” and “confirms Parachinar remains vulnerable to a resurgence in sectarian conflict”:
“The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a—especially in Parachinar, rendering Turis and other Shi’a tribes of the former FATA amongst the most vulnerable across Pakistan”: (the ‘vulnerability of Parachinar to a resurgence in conflict submission’).
c)The Authority did not address the ‘heightened fears for Turis’ or the ‘vulnerability of Parachinar to a resurgence in conflict’ submissions, or the passages of DFAT’s report cited therein, in its assessment of the applicant’s risk of persecution and significant harm as a Turi in Parachinar.
2. The Authority’s decision is affected by jurisdictional error because:
(a)it did not assess whether there was a real chance of harm to the applicant by reference to the reasonably foreseeable future; and/or
(b)it did not address substantial, clearly articulated submissions and country information regarding the stability of the security situation in Parachinar and the possibility of it deteriorating in the reasonably foreseeable future.
Particulars
a)In assessing the applicant’s risk of harm in the reasonably foreseeable future, the Authority’s task was to peer into the future and not foreclose reasonable speculation of a chance of persecution.
b)The applicant’s submissions highlighted the fragility of the security situation in Parachinar and the potential for a resurgence in sectarian conflict in the reasonably foreseeable future, contending:
i.“country information generally supports there has been a steady decline in sectarian conflict in Pakistan since the implementation of a National Action Plan (NAP) to confront terrorist activities” but “the majority, if not all of these same reports, support that long-term, sustainable reconciliation along the Sunni/Shi’a schism has not yet been achieved and a degree of fragility to the current security arrangements continues to exist”: CB 144;
ii. See particular (b) of ground 1 above;
iii.“[in light of the] country information reflecting ongoing instability,” the applicant’s risk of harm “exists into the foreseeable future and until such time there are independent reports confirming the long-term, meaningful stability in Pakistan and the former FATA region”: CB 146;
iv.“border volatility has only very recently played out in the widely reported recent political unrest in Kashmir sparking a risk of retaliatory military action from Pakistan and is of relevance in consideration the Upper Kurram is also a notoriously volatile border region, influenced by the contentious relationship between Pakistan and Afghanistan and which will have a significant impact on future security and stability”: CB 147;
v.“there are many unresolved issues in the FATA region which remain as potential flashpoints for a resurgence of the violence and conflict”: CB 150;
vi.The underlying conditions for militancy… continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change”: CB 159.
c)The Authority did not address the prospect of a resurgence of past conflict in its assessment of risk in the reasonably foreseeable future, or make findings on whether the security situation in Parachinar could or might (or would not) deteriorate in the reasonably foreseeable future, despite the issue being clearly raised in the applicant’s submissions and the country information: (compare particular (b) immediately above and the Authority’s reasoning at CB 274 – 278 at [25] – [33]).
3. The Authority:
a.made findings that were not open on the evidence, lacking in foundation and legally unreasonable; and/or
b. unreasonably failed to exercise its power in s 473DC of the Act.
Particulars
a)The Authority impugned the applicant’s claim to have been robbed and threatened by Taliban, and did not accept that he had a passenger with him at the time or that the robbers were members of the Taliban who threatened to kill him if they found him driving a taxi again: CB 272 – 273 at [17] – [18].
b)The Authority found there were “significant changes” in the applicant’s evidence, viz.
i.The Authority found the applicant’s claim at the SHEV interview that the robber told him that they were Taliban was a “significant change” to his evidence; and
ii.The Authority found the applicant’s claim in his SHEV interview that there was a passenger with him when he was stopped in his taxi was a “significant change “in his evidence: CB 272 at [17].
c)It was not open to find these were “significant changes” given they were additional details that were broadly consistent with the applicant’s evidence prior to his SHEV interview, and an applicant may reasonably expect the SHEV interview will provide an opportunity to elaborate on, or explain, the narratives they have previously given.
d)The Authority also did not explain why it found the alleged changes to be significant.
e)Further and in the alternative, the Authority impugned aspects of the claim as “somewhat curious” and “less than credible”, which evinced unwarranted assumptions on the part of the decisionmaker: CB 272 – 273 at [17].
f)Further and in the alternative, it was legally unreasonable for the Authority to not exercise its power under s 473DC of the Act to interview the applicant prior to rejecting his claim to have been robbed and threatened by Taliban members.
(As per the original)
Ground 1
Ground 1 contended that the IAA failed to give “proper consideration” to (a) submissions highlighting issues raised by the country information; and/or (b) relevant passages of the 2019 DFAT report on Pakistan (DFAT Report).
The particulars to the ground drew attention to country information that was the subject of submissions at CB 145-146. Those submissions are set out above. The country information was submitted to show “heightened fears for Turis” and “vulnerability of Parachinar to a resurgence in conflict”. The applicant contended that the IAA did not address these submissions, or the passages of the DFAT Report cited therein, in its assessment of the applicant’s risk of harm as a Turi in Parachinar.
The applicant submitted that the above was at odds with, and potentially undermined, the IAA’s conclusion at [33] that “overall, the clear weight of the country information shows that in the seven years since he was last there, the security and sectarian situation in the Kurram District, and in the Parachinar area, has improved substantially”.
The applicant observed that the fact that the Authority referred to some parts of the DFAT Report is not sufficient to establish that it considered other relevant portions of the DFAT Report, or understood their significance in light of the issues arising on the review. He submitted that if the parts of the DFAT Report relied upon had been considered, then one would have expected that they would have been referred to in the IAA’s decision. The applicant submitted that it was not sufficient for the IAA to have relied upon a declining trend in violence. This was in circumstances where his submissions had been premised upon a declining trend. Those submissions contended that, because the underlying factors arising from the country information were still there, there was a risk of deterioration. The applicant submitted that this was left unaddressed.
The applicant relied upon a number of authorities in support of his submissions. I am conscious of those authorities. However, the fundamental task for the Court in relation to this ground is a factual one. It must be answered by reference to the particular circumstances of this case. This requires the Court to assess whether an inference ought to be drawn, in the circumstances of this case, that the IAA failed to give requisite consideration to the material in issue.
On balance, I am not persuaded that this has been demonstrated. As the Minister submitted, the authorities do not support a requirement on the IAA to refer line-by-line to all of the material before it: see for example Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]. Non-reference to particular material may inform, but does not in and of itself determine, whether the material was considered.
The IAA referred to the DFAT Report and the applicant’s submissions in various parts of its decision (at [17], [28], [30], [34] and [36]). Whilst far from determinative, this at least shows some consciousness of their existence and contents.
I accept that the IAA did not refer in precise detail to the DFAT material the applicant had relied upon as supporting his “heightened fears for Turis submission” or the “vulnerability of Parachinar to a resurgence in conflict”. However, as was submitted by the Minister, the IAA did refer to the overall assessment in the DFAT report that the “security situation in Pakistan is complex, volatile” and motivated by numerous factors including ethnic conflicts and international disputes (at [28]). This acknowledgement, in the context of the IAA’s acceptance that Kurram Agency had a “long history of sectarian violence”, and consideration of periods in which attacks had increased and decreased, indicates some appreciation on the part of the IAA of information indicating the possibility of the situation declining in the future (including by reference to the issues relied upon by the applicant).
The IAA referred to country information indicating that “attacks against Turis can, and may, still occur” and that “Turis in Kurram Agency still face a moderate risk of sectarian violence” (at [30]). Such overall assessments in the DFAT Report would have been expected to have taken into account other parts of the report, including the more detailed information that had been relied upon in the applicant’s submissions.
The IAA was nonetheless not satisfied that the situation was such that it gave rise to the requisite risk of harm. In coming to this conclusion, the IAA considered in some detail at [27]-[31] attacks that had been perpetrated against Turis at various times. It considered military action that had been taken, in specific areas including in and around Parachinar. Having regard to country information from various sources, including the DFAT Report, as well as the applicant’s circumstances, the IAA concluded that it was not satisfied that there was a real chance of harm to the applicant if he were to return to the Kurram District. This was having regard, inter alia, to its consideration that “the clear weight of the country information shows that in the seven years since he was last there, the security and sectarian situation in the Kurram District, and in the Parachinar area, has improved substantially”. It was also considering the experiences of the applicant’s family living in the Parachinar area, as well as its analysis regarding “the nature and frequency of militant and sectarian incidents in the Kurram District” (at [33]).
Having regard to the above, I accept the Minister’s submission that a sufficient basis has not been demonstrated for drawing an inference that the parts of the country information relied upon (or the related submissions) were not considered by the IAA. I find the more likely inference to be that the IAA considered that information, amongst the other information it considered, before reasoning as it did at [27]-[35] of its decision that it was not persuaded that the situation gave rise to the requisite risk of harm in the reasonably foreseeable future.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 was not unrelated to ground 1. By ground 2, the applicant contended that the IAA did not assess whether there was a real chance of harm to him by reference to the reasonably foreseeable future. Alternatively, the applicant contended that the IAA did not address substantial, clearly articulated submissions and country information regarding the stability of the security situation in Parachinar and the possibility of it deteriorating in the reasonably foreseeable future.
The applicant relied upon submissions that had been made and related country information regarding the fragility of the security situation in Parachinar and the potential for a resurgence in sectarian conflict. The material relied upon in the particulars is set out above. Some additional information to similar effect was relied upon by the applicant in submissions.
The applicant contended that the IAA did not address the prospect of a resurgence of past conflict in its assessment of risk in the reasonably foreseeable future, or make findings on whether the security situation in Parachinar could or might (or would not) deteriorate in the reasonably foreseeable future, despite the issue arising from the country information and the applicant’s submissions.
The applicant contended that the IAA’s consideration of whether he faced a real chance of harm did not consider the forward-looking risk of volatility in the security situation. This was even though it accepted Parachinar “has a history of general and sectarian violence, including both before and after he left Pakistan” (emphasis added) (at [32]). Instead, the IAA was said to have confined its reasoning by reference to the improvements in the situation and the number and frequency of attacks. The applicant submitted that the IAA did not address the cyclical nature of violence in Parachinar, with the possibility of resurgence.
For similar reasons to those given under ground 1, I am not persuaded that the IAA failed to consider the applicant’s submissions nor the country information upon which they were based in considering the stability of the security situation in Parachinar.
I accept the Minister’s submission that the IAA’s reasoning at [27]-[33] indicates an appreciation of both the complexity and volatility of the security situation. In those paragraphs, the IAA gave consideration to various causes of violence (including ethnic conflicts, sectarian violence and international disputes), which the IAA did not suggest had been resolved. The IAA considered earlier periods, over the significant range of time considered, in which there had been increased incidents of violence. The IAA expressly acknowledged both the “long history of sectarian violence” in the Kurram Agency and the “complex” and “volatile” nature of the security situation. In doing so, I do not accept that the IAA overlooked or otherwise failed to consider the potential for resurgence or deterioration.
However, the IAA nonetheless did not accept that the security situation gave rise to the requisite risk of harm. This was taking into account detailed country information from various sources regarding the nature and frequency of incidents in the Kurram District over time, the lengthy trend of substantial improvement (spanning several years, including beyond the DFAT Report), government initiatives that had contributed to the improvement, as well as the particular circumstances of the applicant and his family. Taking these matters into account, the IAA found that it was not satisfied that the applicant faced a real chance of harm at the time of its decision “or in the foreseeable future”.
This conclusion was reached acknowledging the long-standing complexity and volatility of the situation (and, therefore, its susceptibility to change). It was reached acknowledging the underlying factors behind the situation, which had previously influenced cycles of violence and which the IAA did not consider had been entirely resolved. However, it was reached by the IAA taking into account the balance of the country information and other evidence that was before it.
It has not been demonstrated that this reasoning was relevantly closed to the IAA. In these circumstances, although another decision maker may have reasoned differently, the assessment was one for the IAA (and not the Court) to make.
Having regard to the above, I am not persuaded that the IAA failed to address submissions or country information regarding the stability of the situation in Parachinar (or the possibility of its deterioration). I am also not persuaded that the IAA failed to assess whether there was a real chance of harm to the applicant by reference to the reasonably foreseeable future.
Ground 2 is therefore unable to succeed.
Ground 3
Ground 3 contended, first, that the IAA made findings that were legally unreasonable. The impugned findings were contained in [17] of the IAA’s decision, which is set out in full above. That paragraph expressed certain difficulties that the IAA raised in relation to the applicant’s claim that he was stopped, threatened and robbed by the Taliban while driving his taxi in 2013.
The applicant sought to impugn the IAA’s findings that the following claims made at interview represented “significant changes” in his evidence:
(a)that the robber told him that they were Taliban; and
(b)that there was a passenger with him when he was stopped in his taxi.
The applicant contended that it was not open to find that these were “significant changes”. The applicant submitted that the IAA did not explain why it found these additions to his evidence to be significant.
Claim at interview the robber told him they were Taliban
With respect to the first identified change, the applicant observed that in his 2013 interview, he is recorded as saying in response to the question ‘[h]ow do you know it was the Taliban?’: “[y]ou know long hair and with guns and they would charge the gun and take the money from us” (CB 31). In his SHEV application lodged nearly four years later in March 2017, the applicant stated in response to the question of why he left Pakistan: “I was a taxi driver working during the day and towards the end of the day the money earned by me was taken by Taliban and I went home without no income… I have explained about the people who robbed me with long hair and with guns and they would charge the gun and take the money from me” (CB 85). At the SHEV interview, the applicant responded when asked who he thought the people were when he saw them: “I have seen them when I went home and I have explained those to my father and my father told me, those people are Taliban and they are dangerous, you have to stop driving taxi”: transcript annexed to the applicant’s affidavit dated 23 September 2024 (Transcript), p 26. The Delegate subsequently asked the applicant what his assailants said to him. The applicant stated, “They have told me that you don't have to drive a taxi, and you don't have to make money for your family and we are against Shia and we are Taliban… They gave me a chance, and they told me that you have a chance this time, but next time we will not give you the chance” (emphasis added) (Transcript, p 27).
The applicant submitted it is well established that it is not the purpose of the arrival interview to obtain a detailed account of an applicant’s protection claims: Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64 at [43] (Moshinsky J). The applicant contended that the statement at the 2013 interview that he knew they were Taliban based upon their appearance, and his statement to the Delegate at the SHEV interview over six years later that the men told him they were Taliban, were not contradictory. This was considering that the applicant was not asked squarely by the Delegate, “how did you know the men were Taliban?” The applicant contended that it was not open for the IAA to impugn this as a “significant change” in his evidence. The applicant contended that the IAA’s failure to explain why it considered the purported change to be significant was a further defect in its reasoning process: ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [43] (Griffiths J, Mortimer J, as her Honour then was, and Steward J).
I accept the Minister’s submission that it was open to the IAA to have considered that the reference to the applicant being told his assailants were Taliban was a “significant change” in his evidence. The basis for this is sufficiently apparent from the IAA’s reasoning and its context. The identities of the assailants were relevant to the risk claimed by the applicant. The applicant was asked the question directly at the 2013 interview, which was an entry interview. The applicant did not say that he was told that his assailants were Taliban, but instead referenced their appearance. Within this context, the applicant’s subsequent evidence that he knew the assailants were Taliban because they directly told him this is not necessarily characterised as a mere elaboration or additional detail in the evidence.
I am therefore not persuaded that this part of the IAA’s reasoning meets the high threshold for legal unreasonableness.
Details of the incident
The applicant also took issue with the IAA’s observation at [17] as follows:
17.… In his arrival interview, SHEV application and at the SHEV interview he indicated the incident occurred at the end of his (working) day. However he said in his SHEV application that he was on his way home but in the SHEV interview and post-SHEV interview submissions he indicated he was on the way to the bazaar.
The applicant observed that in his SHEV application, the applicant said that the incident happened “towards the end of the day” (CB 85). He submitted that he did not say he was on his way home when the robbery occurred in his SHEV application, but rather stated in relation to where the incident occurred: “It was a road near the creek road called [name omitted] near on my way home, I don't know the name of the area”: CB 85. The applicant suggested that the IAA conflated the timing of the incident (when the applicant had said he didn’t remember the time) with its location.
However, I accept the Minister’s submission that the applicant’s statement that the incident had occurred “towards the end of the day”, together with his statement that it had happened “near on his way home”, gave rise to an available impression that the applicant was saying that he was on his way home, towards the end of his day, when the incident occurred. I am not persuaded that it has been demonstrated that this inference was relevantly closed to the IAA.
Claim that there was a passenger with him
The applicant next took issue with the IAA’s finding that his claim at interview that there was a passenger with him was a “significant change” in his evidence. The applicant submitted that what he had said about the passenger was simply a further detail to his broader, earlier claim to have been working as a taxi driver. The applicant submitted that the IAA did not explain why this was considered to be a “significant change” in his evidence.
However, the reason the IAA considered this change in the evidence (whether as an additional detail or otherwise) to be significant is apparent from its reasoning. The IAA considered that the applicant’s evidence that a passenger had been with him raised additional questions regarding his claim. In particular, the IAA did not find it credible that the passenger would not also have been robbed. The IAA also did not find it credible that the Taliban member apparently made no effort to check if the passenger was Shia.
The applicant submitted that the findings were based upon unwarranted assumptions. For the reasons given below, I do not accept this was the case.
Having regard to the above, I am not persuaded that the high threshold of legal unreasonableness has been demonstrated in relation to this part of the IAA’s reasoning.
Unwarranted assumptions
The IAA considered the claimed behaviour of the assailants was “somewhat curious”, reasoning “it does not seem credible that the Taliban member who came to the car made no effort to check if the passenger was Shia as well” and “the Taliban choosing to give the applicant another chance and warning they would kill him next time they found him driving a taxi seems less than credible” (at [17]). The applicant contended the IAA made unwarranted assumptions regarding the behaviour of his assailants and how the Taliban would or ought to behave.
The IAA referred to country information indicating that “the Taliban used to target Shias on the roads around Parachinar” and suggesting “a level of ferocity in the Taliban’s dealings and encounters with Shias” in the area at the time. It is not clear precisely what parts of the country information the IAA relied upon in this regard. Not all of that information is in evidence. The applicant has not demonstrated that it was closed to the IAA, on the information before it, to reason that it was somewhat surprising that the Taliban would give the applicant another chance and a warning in the manner that he described.
Nor has the applicant demonstrated that it was closed to the IAA to have reasoned, by reference to the country information before it, that it was “somewhat curious” that no action was taken to establish if the applicant was a Shia or the religious identity of his passenger. This was in an identified context of country information indicating means of identifying Shia, such as through common names. In this regard, the applicant challenged the IAA’s characterisation of his explanation that the assailants knew he was Shia because all taxi drivers in Parachinar were Shia as “unconvincing”. The applicant submitted that the basis of this finding was unexplained, observing that there was country information before the IAA indicating that the majority of people in the area were Shia ([3.110] of the DFAT Report).
However, the country information did not indicate that all people in the area were Shia. In this context, I am not persuaded that it was closed to the IAA to have characterised the applicant’s unsupported explanation that all taxi drivers in the area were Shia as “unconvincing”. This was in the context of other difficulties that the IAA identified in the account that had been given by the applicant.
Section 473DC
The applicant further contended that the IAA erred by failing to exercise its power under s 473DC of the Act in respect of the robbery claim.
The applicant observed that the Delegate, with the benefit of assessing the applicant’s demeanour, found his evidence at interview “generally consistent with [his] written statements of claims” and noted “[m]inor inconsistencies along with other matters were put to the applicant and further discussed”. Having the benefit of interviewing the applicant, the Delegate did not impugn his claim to have been robbed by the Taliban. In contrast, elements of the claim were rejected by the IAA on credibility grounds.
However, the fact that the IAA reached different findings from the Delegate on credibility without an interview does not necessarily, in and of itself, demonstrate relevant error on the part of the IAA. This is having regard to the particular statutory context that applied under Part 7AA of the Act, which limited the IAA’s procedural fairness obligations: see for example DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [69]-[76] (Reeves, Robertson and Rangiah JJ). I am not convinced that the nature of the departure in this case was such that legal unreasonableness is demonstrated by this alone. I will therefore consider whether it does so in combination with the other circumstances relied upon by the applicant.
The applicant submitted that it was notable that during the SHEV interview he explained that he had forgotten to tell the Delegate he was a Turi because “I am sick and my mind is not working properly”. The Delegate responded, “I understand that and your application was put in a long time ago back in 2017 and it was put in with the previous agent that you had” (Transcript, p 45). The applicant submitted that this suggested that the Delegate took into account his demeanour. The applicant submitted that characterisation of his explanation that all taxi drivers were “unconvincing” suggested that demeanour was also taken into account by the IAA.
I am not persuaded that it has been demonstrated from the above that demeanour played a particular role in this case, such that it was unreasonable for the IAA not to have invited the applicant to an interview. This is not a case such as ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 or DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134, where demeanour expressly or identifiably influenced the reasoning of the Delegate or the IAA. Although the Delegate appears to have given the applicant the benefit of the doubt regarding some claims, it is not apparent that they placed particular reliance upon the applicant’s demeanour or presentation of evidence in doing so. It is also not apparent that the IAA’s characterisation of the applicant’s explanation as “unconvincing” was driven by the manner in which that evidence was given, as distinct from its limited content and lack of corroboration. The IAA’s reasons for not accepting the applicant’s evidence appear to have been content driven, by reference to what it found to be changes and implausibility in the evidence.
The applicant submitted that, in circumstances where the Delegate did not query or dispute that he had a passenger, and gave him the benefit of the doubt, it was incumbent upon the IAA to exercise its discretion under s 473DC of the Act before rejecting his claim. At hearing, the applicant emphasised the IAA’s consideration that the robbers did not “appear” to have taken action to establish the applicant’s Shia identity. He submitted that this issue, which the IAA found significant, was not put to him for comment.
I accept that the Delegate did not ultimately dispute the applicant’s claim that he had a passenger, nor how the assailants knew the applicant was Shia. However, the Delegate did question the applicant to some extent at interview about the encounter and why he thought he had been told to stop driving a taxi because he was Shia (at 27-29 of the Transcript). This questioning included the Delegate saying they did not understand this, in circumstances where it was suggested that there were all sorts of taxi drivers (including Sunni drivers and drivers used by the Taliban). This prompted the applicant’s explanation that all taxi drivers in the area were Shia, which the IAA found unconvincing. In any event, I am not persuaded that the fact that the applicant had not been asked directly how the assailants knew that he was Shia necessarily, in and of itself, imposed an obligation upon the IAA to invite the applicant to an interview. To find otherwise would impose a procedure under a “natural justice lens” not intended by the statutory scheme under Part 7AA: DGZ16 at [73].
Having regard to the above and the circumstances of this case as a whole, I am not persuaded that it has been demonstrated that the IAA unreasonably failed to exercise (or consider exercising) its power under s 473DC of the Act. The ground of legal unreasonableness has a high threshold. I am not persuaded it has been met in the present case.
CONCLUSION
For the reasons given above, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 13 January 2025
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