DPN19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 381
•29 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPN19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 381
File number(s): SYG 884 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 29 April 2024 Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Protection visa application – Whether there was a logical or probative basis for dismissing evidence – Whether there was a logical or probative basis for credibility findings – Bogus identity document – Whether proper application of s.473DD of the Migration Act 1958 in relation to ‘new information’ – No jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 91W, 473DD Cases cited: ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 29 February 2024 Place: Parramatta Counsel for the Applicant: Ms Winnett Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondents: Mr Reilly Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 884 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DPN19
Applicant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
29 APRIL 2024
THE COURT ORDERS THAT:
1.The Application for judicial review filed 3 September 2020 is dismissed.
2.The applicant to pay the first respondent’s costs as agreed or assessed.
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 OBRADOVIC:
These are the Reasons for Judgment in respect of the Amended Application filed on 3 September 2020 seeking judicial review of a decision of the Immigration Assessment Authority (“Authority”) dated 13 March 2020. The Authority’s decision affirmed the decision of a delegate of the then Minister for Immigration and Border protection (“delegate”) refusing the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV”). The applicant is currently in immigration detention.
The applicant raised five grounds for judicial review:
(1)The Authority fell into jurisdictional error by failing to engage in an active intellectual manner with corroborative evidence, in circumstances where there was no logical, rational or probative basis for dismissing the evidence from its consideration;
(2)The decision of the Authority is affected by jurisdictional error in that there was no logical, rational or probative basis for the Authority’s findings that the applicant’s claims concerning his experiences in Afghanistan were not credible;
(3)In the alternative to ground 2, the Authority fell into jurisdictional error by failing to apply the correct legal standard for assessing whether the applicant had a well-founded fear of persecution or faced a real risk of significant harm;
(4)Th Authority fell into jurisdictional error by misapplying s.473DD of the Migration Act 1958 (Cth) in deciding that it could not have regard to the ‘new information’ described at [7] of the Authority’s decision; and
(5)The Authority fell into jurisdictional error in finding at [71]-[73] that a grant of the visa to the applicant was precluded by s.91W of the Act on the basis that it:
(a)Had no jurisdiction to make that finding; or in the alternative
(b)Misconstrued and misapplied the statutory expression ‘documentary evidence of the applicant’s identity, nationality or citizenship’ in s.91W.
BACKGROUND
The applicant is a national of Afghanistan. He arrived in Australia on 31 July 2013 as an unauthorised maritime arrival.
On 14 September 2013 and 19 October 2014, the applicant participated in entry interviews.
On 27 April 2017, the applicant applied for a SHEV.
On 26 May 2017, the applicant was issued with a request to produce documentary evidence of his identity, nationality or citizenship pursuant to s.91W of the Act.
The applicant participated in an interview on 30 November 2017, assisted by a migration agent and an interpreter, and gave post-hearing submissions to the delegate on 29 January 2018.
On 14 April 2018, the delegate refused the application for a SHEV.
On 17 April 2018, the application was referred to the Authority for review of the delegates decision. The Authority affirmed the decision of the delegate and the applicant applied for judicial review to the then Federal Circuit Court of Australia which was successful, and the application was remitted to the Authority on 31 January 2020.
On 12 February 2020, the applicant’s representative provided the Authority with a statutory declaration of the applicant, correcting aspects of his evidence and providing evidence about his relationship with his wife, tattoo, and mental health.
On 13 February 2020, the applicant’s representative provided the Authority with additional evidence.
On 15 February 2020, the applicant’s representative provided the Authority submissions as to why various documents and evidence should be relied on, medical records, and country information articles.
On 13 March 2020, the Authority affirmed the delegate’s decision refusing the granting of a SHEV.
THE AUTHORITY’S DECISION
The Authority set out the applicant’s claims in respect of the SHEV application as follows:[1]
•He is a national of Afghanistan and an ethnic Tajik and a Sunni Muslim. He originates from Town A in the X District of Afghanistan's Logar Province.
•His cousin, Mr N, worked with an American company, EOD Technology (EODT), as a maintenance person at Forward Operating Base (FOB) Shank, which was run by the United States military. In 2012 Mr N helped the applicant to also get employment with EODT at FOB Shank. The applicant was trained and employed as a security guard. His duties included keeping lookout from the towers of FOB Shank. When doing so he carried a rifle and was accompanied by an American soldier.
•In March 2013 the Taliban issued him a threat letter which stated that he was working with foreigners. In May 2013 the Taliban came to his home looking for him. He fled to his sister's home. He went to FOB Shank and asked for assistance but was told there was nothing that could be done to help him other than that he could remain at FOB Shank. He returned to his sister's home. In June 2013 he received a further threat letter from the Taliban. He then travelled to Kabul and on 29 July 2013 he departed Afghanistan by air for India and then Malaysia. He travelled onward to Indonesia and then by boat Australia. His Afghan passport was taken from him by a smuggler.
•After fleeing Afghanistan the applicant was told by his father that Mr N had been killed along with seven others while commuting to work, and that if the applicant had remained he would have been in the same car and would have met the same fate.
•He fears that he will be killed by extremist groups and anti-government elements (AGEs) in Afghanistan, such as the Taliban, for reason of: his profile as someone who continued work with foreigners after being instructed by the Taliban that he must cease such activities; his actual and/or imputed political opinion, as a supporter of western forces in Afghanistan; his actual and/or imputed religious belief, as an opponent to the Taliban; his membership of a particular social group of Afghan employees of western forces in Afghanistan and/or Afghans who are associated with the western forces in Afghanistan; and his membership of [a] particular social group, as a failed asylum seeker returning to Afghanistan from a western country; and his westernisation (as someone who has been outside Afghanistan for many years and has had a his [sic] lengthy residence in a Western country, and in this period has married a[n] Australian citizen and is the father of an Australian citizen child, and because he would be in regular communication with his immediate family, and as such has clear links to the west), and as someone who has thus contravened Islamic norms and not adhered to the Taliban’s interpretation of Islam.
•He also fears harm due to the widespread conditions of violence, a breakdown of law enforcement, and a heightened personal risk.
•It has also been submitted that his physical and mental health issues make him vulnerable with regard to attacks targeting health services.
[1] CB:539[12].
New Information
The Authority had regard to the material provided by the Secretary and the applicant’s submissions. The Authority also considered whether some information constituted new information under s.473DD of the Act. The information the Authority considered was:
(a)New information about the applicant’s circumstances in terms of his physical and mental health and that of his family in Afghanistan, and his relationship with his wife and daughter which was personal information and, given this information was submitted with some supporting documentary evidence, was satisfied that there were exceptional circumstances justifying the new personal information;
(b)New information provided to the Authority that the last time the applicant remembered possessing the original of the two letters purportedly sent by the Taliban (“Taliban letters”) was when he met his former migration agent (“Mr W”) for the preparation of the SHEV application (signed 12 April 2017). However, the Authority noted information also before it, in the form of an email dated 14 December 2017 to the Department by the applicant’s then representative (“Mr FDM”), that the applicant claimed to be in possession of these documents in December 2017. Relevantly, the applicant also provided new information claiming that he did not remember any contact from the agent after the 30 November 2017 SHEV interview until he was notified of the outcome of his application. However, the Authority had information before it, in the form of emails, at odds with this account indicating that the applicant was in contact with his then representative Mr FDM. The Authority held the applicant’s claims to be ‘no more than assertions and they are assertions made without any substantiating evidence.’[2] Accordingly, the Authority was not satisfied there were exceptional circumstances justifying the consideration of this new information;
(c)New Information about the contents of the purported Pashto language Taliban threat letter in the form of a statement by the president of an Afghan association in Australia that there is no word in the letter that can be translated as ‘police’. The applicant claims this is not ‘new information’ because it related to a document and translation already provided to the delegate. The Authority held that the information provided by the Afghan association president was a statement and not a correction of the translation as it offered no alternative translation, and that the view of the Afghan association president was new information. However, as the new information was not a translation, and the Authority had a full translation of the document by an accredited translator, the Authority was not satisfied there were exceptional circumstances to justify considering the Afghan association president’s view;
(d)New information that the applicant fears harm on the basis that he has a tattoo, which was not provided to the delegate because the applicant claims his former agent, Mr W, was Afghan and the applicant felt embarrassed. The Authority was not satisfied, even considering the applicant’s physical and mental health at the time, that he could not have provided the information to the delegate, and no specific evidence was provided which established that persons with tattoos have been harmed in Afghanistan. As such, the Authority was not satisfied that there were exceptional circumstances to justify considering this new information;[3]
(e)New information in the form of an 18 July 2013 New York Times article and the claim by the applicant that he had provided the article to his immigration detention manager. The Authority noted that it had before it documents the applicant had provided to the delegate, but the article was not included, and the Authority was not satisfied that it ever was. The Authority was not satisfied that the article could not have been provided to the delegate nor that it was personal information. As such, the Authority was not satisfied that there were exceptional circumstances justifying considering either the article or the applicant’s claim that he gave the article to his immigration detention manager;
(f)Several new reports about Afghanistan provided by the applicant, most of which were published after the delegate’s decision. The Authority was satisfied there were exceptional circumstances justifying considering the new reports in question;
(g)New information in the form of a February 2015 report on Taliban threat letters in response to the delegate’s concerns about the applicant’s documentary evidence. The Authority was not satisfied that this could not have been provided to the delegate in circumstances where the applicant was made aware that the authenticity of the Taliban letters was squarely in issue, that it was the applicant’s responsibility to provide evidence to establish his claims, and that he was provided with the opportunity to provide submissions after the interview. The Authority was not satisfied that the information was personal information, nor that there were exceptional circumstances to justify considering the new information; and
(h)Information obtained by the Authority about the situation in Afghanistan for persons like the applicant. As the information was not available to the delegate, and the Authority needed such current information, the Authority was satisfied there were exceptional circumstances to justify considering the new information.
Refugee Assessment
[2] CB:536[5].
[3] CB:537[7].
Credibility
In considering the applicant’s refugee assessment, and whether the applicant met the requirements under s.5J of the Act for having a well-founded fear of persecution, the Authority made a number of findings in relation to the applicant’s claims.
In relation to the inconsistencies with the applicant’s account, the Authority accepted that in the applicant’s circumstances, given the evidence of the applicant’s mental and physical health, that ‘it is plausible that a person affected by such factors might make errors in the recollection and/or sequencing of events, and that such a person might experience difficulties in the recollection of the particulars of certain past matters.’[4] However, the Authority had other concerns it found to be determinative in assessing the applicant’s credibility which included the applicant’s purported taskera, not providing his Afghan driving licence, not providing the originals of the Taliban letters, and not being able to provide documentation in relation to his purported employment with EOD Technology (“EODT”).
[4] CB:544[28].
In relation to the purported taskera, the applicant claimed that he had the document sent to him from Afghanistan and provided a copy to the Department. When the applicant requested the Department record his date of birth as 31 December 1994 (rather than 31 December 1993 which was the date given when he first arrived in Australia), the Department requested the applicant provide the original taskera which he did. This document was submitted for forensic examination and found to be counterfeit and the applicant was notified of this on 7 October 2017. In his SHEV application, the applicant made no mention of his taskera having been found to be counterfeit, and when this was raised by the delegate, the applicant claimed the document had been obtained for him when he was a child. In a subsequent submission to the delegate, the applicant tendered that it should be considered that the taskera was not in the applicant’s possession when arriving in Australia, that it was sent to him by a relative, and that he was of the understanding that it was a genuine document. The Authority found in relation to the applicant’s taskera that:
(a)The delegate’s finding – that it could not be discounted that the document was tampered or replaced by a third party without the applicant’s knowledge – was ‘fanciful’. The Authority noted that it had been the applicant’s claim that the taskera he gave the Department was the same he had been employing in Afghanistan;
(b)As the taskera was found to be counterfeit, the Authority was not persuaded that the document was the taskera the applicant was using in Afghanistan, that the applicant was unaware of this, nor that the applicant was unaware that the taskera sent to him in Australia was counterfeit;
(c)The applicant had been provided a fair and reasonable opportunity to put his case and respond to the specific matter of his purported taskera; and
(d)The applicant was a willing party to furnishing the counterfeit document for the purpose of establishing his claims.
The Authority noted, that at the 30 November 2017 SHEV interview, it became apparent that the applicant had obtained a driver’s licence while in Australia. This being done by way of an application process involving the applicant providing a copy of his Afghan driving licence. The Authority noted that the applicant never provided the Department with a copy of his Afghan driving licence, that the delegate directed the applicant that he should provide this document, and that the applicant has never provided this document.
The Authority also had concerns about the applicant’s credibility in relation to his failure to provide the originals of the purported Taliban letters and a purported certificate of appreciation for his employment with EODT (“Certificate”), or any other supporting documents for his identity or employment. This was despite the applicant being plainly put on notice that the credibility of these documents was in doubt, and that concerns for his identity were intertwined with his protection claims. The Authority stated:[5]
I am not satisfied and I do not accept that the applicant is no longer in possession of the purported Taliban letters and the purported EODT certificate, and I consider that serious doubts are raised about the credibility of these documents by the fact that the applicant has not provided the originals to the Department for inspection.
[5] CB:548[38].
The Authority was not satisfied that the applicant ever worked for EDOT or that he was ever threatened by the Taliban.
The Authority stated:[6]
[O]ther than his counterfeit taskera the applicant did not prove the delegate with any Afghan identity documents of any kind (or even an explanation for why the applicant had not done this), and he did not provide the delegate with a copy of his Afghan driving licence (such as might detail his actual former place of residence in Afghanistan), and this rases very serious doubts about the applicant’s claim to be from Town A. […] I can accept that the applicant is familiar with the Town A area and that the applicant originates from the District of [X] in which [Town A] is located, and that [X] District is the area the applicant would return to. I can also accept that he is a national of Afghanistan and that he has been issued a genuine taskera and a genuine Afghan driving licence but given that he has never provided these, and given that the only identity document he has provided (as part of his application in which he claimed to originate from [Town A]) is plainly counterfeit, I am not satisfied that the applicant has yet been forthcoming about exactly where it is in X District that he originates from and I am not satisfied and I do not accept that he originated from the area of Town A. Given all of this I am also not satisfied that the applicant’s cousin, Mr N, was among the men from Town A who were killed on 18 July 2013 on their way to work at FOB Shank, and given my overall doubts about the credibility of the applicant’s claims about such matters I am not satisfied that his cousin, Mr N, was ever employed by EODT (now Sterling Global Operations) at FOB Shank.
[6] CB:549[42].
Family
The applicant made the submission that the applicant would need to consider whether his wife and child would relocate to Afghanistan and, if they did, that this would raise the interest levels of the Taliban in the applicant and he would be targeted. The Authority noted that it was not apparent that the applicant’s wife has made a commitment to travel to Afghanistan if the applicant were to return and that neither the applicant nor his wife have custody of their daughter. The authority was not satisfied that the applicant’s wife or his daughter would, in the reasonably foreseeable future, travel to Afghanistan in the event that the applicant was to return. However, the Authority did accept that the applicant would maintain regular communication with his wife and child in Australia.
Returnee
The applicant claimed that his communication with his family would expose his association with his wife and child and the fact he married an Australian citizen and is the father of an Australian citizen, and that this would add to the risk he would face for reason of his being a failed asylum seeker returning from a western country and because of his westernisation. After considering information relating to failed asylum seekers and returnees to Afghanistan, the Authority made the following finding:[7]
I accept that the applicant would maintain communication with his Australian wife and Australian daughter as he has said but the possibility that this would become known to the Taliban, or someone else with an interest in harming the applicant on this basis, seems remote; and I note that the applicant family in Logar have remained in regular communication with him over the years in which he has been in Australia and yet this has not resulted in their being harmed or threatened in any way. I can accept that while the applicant sometimes chooses to wear western style clothes such as a t-shirt and jeans, or a long sleeved shirt with a collar, but I note from news reports dealing with the matter of styles of dress in Afghanistan it would seem that, although in rural areas many men stick to the traditional shalwar kameez, that the western styled of dress is nonetheless a common place and that in Kabul even more extreme manifestations of western styled clothing and hair are seen without resulting in any harm to the wearer. Given all this the possibility of his coming to any harm because of such matters seems remote.
[7] CB:553[55].
Physical & Mental Health
The applicant argued that he would face a heightened risk of harm as compared with the population of Afghanistan generally because of his physical and mental health issues and because of the extent to which health services have been attacked in Afghanistan. The Authority noted the following:
(a)It was not apparent that the applicant was currently receiving or in need of treatment for any physical health issues;
(b)The applicant had six sessions with a psychologist for the preparation of the 10 February 2020 psychological report prepared for the Authority’s benefit and stated the applicant presented with symptoms of Post Traumatic Stress Disorder, depression and anxiety;
(c)The applicant, in his 12 February 2020 statement, claimed he sees a counsellor about once a week and is taking medication Seroquel and Escitalopram for his mental health; and
(d)That evidence before the Authority, by way of the 10 February 2020 psychological report, only recommends the applicant would likely benefit from ongoing trauma counselling with no indication the applicant will be attending counselling nor that he is currently taking medication or receiving any kind of treatment.
The Authority found that the possibility that the applicant would find himself in a situation involving a high-security psychiatric facility in Afghanistan was remote given his limited mental health issues. For persons in Afghanistan with mental health issues like the applicant, problems can sometimes arise in accessing treatment, however, the Authority was not satisfied on the evidence before it that the applicant would want or need such treatment in the reasonably foreseeable future. The Authority stated:[8]
I accept that if the applicant were to return to Afghanistan this would be a very stressful, and a very unfortunate, situation given that his wife and his child would remain in Australia. However, given the current state of his mental health, and given that he would be returning to his family in Afghanistan who he evidently misses and care for a great deal, and given that he is currently not receiving or pursuing treatment for his mental health, the possibility that he would have any interest in doing so upon return to Afghanistan is too speculative, and given both this and that he is not currently in need of any treatment for his physical health, the possibility that his mental or physical health would be such as to result in his facing a real chance of harm in some way (either in itself or because he would attend a health facility which would be targeted in an attach) seems remote, as does the possibility that such matters would somehow make him appreciably more vulnerable to harm in terms of his association with a western country and/or from generalised violence and criminality.
[8] CB:554[58].
Security
Finally, the Authority also considered the security in Afghanistan in a broader sense given that, in order to return to X District, the applicant would need to first arrive in Kabul then travel overland through Kabul’s districts of Kabul and Chahrasyah, and Logar Provence’s Mohammad Agha District.
The Authority considered information before it about the situation in Afghanistan including Kabul Province, Logar Province, and X District. The Authority found:[9]
[A]lthough [X District] is affected by a level of volatility, such violence as occurs in [X] District would appear to be targeted at combatants and at civilians working for Afghan or foreign government agencies and security forces, with harm coming to civilian bystanders only rarely. Greater violence does occur in other areas of Logar such as the district of Muhammad Agha but the applicant would only be transiting this district and the interest of the Taliban in other Afghan civilians would appear to be limited persons working for the Afghan or for foreign government agencies and security forces. The applicant is not such a person. In Kabul the number of civilians who suffer harm as bystanders to insurgent attacks is much more significant but given that the applicant would only be transiting Kabul the possibility that such violence, or that criminality, would cause the applicant any harm seems remote also. There is no indication of a trend of the targeting of Sunni Tajiks in Afghanistan.
[9] CB:557[63].
Conclusion
The Authority stated the following:[10]
I can accept that the applicant is personally opposed to AGEs and extremist groups like the Taliban but it is not apparent that the Taliban or any other AGEs are targeting persons like the applicant on the basis of such personal views. It is evident that persons who actively oppose AGEs like the Taliban (such as by working in Afghanistan for the Afghan government or its foreign backers) can face a risk of harm but I do not accept that the applicant (or his cousin) ever worked at FOB Shank for an American employer backing the Afghan government. The applicant would be returning to Afghanistan after having lived and sought asylum in a western country, and upon return he may choose to wear western clothing like jeans and t-shirts, but given that such western stylings would themselves not appear to attract adverse interest, and given the scarcity of credible reports of returnees having come to harm for reason of their having lived and sought asylum in a western country (and given that I give significant weight to the more disinterested reporting of observers like EASO and UNAMA in this regard), and given that in any event it seems remote that anyone other than the Afghan community in Australia and the applicant's own family and friends in Afghanistan would ever become aware that he has lived and sought asylum in Australia, the possibility that this would become known to an adverse actor in Afghanistan and that this would then lead to harm for the applicant seems very remote. Given all of this, and given also the applicant's circumstances with regard to his health, and given the overall situation with regard to generalised violence and criminality in [X District] and the areas he would travel through to reach [X District], I am not satisfied that the applicant would face a real chance of harm of any kind for the foreseeable future (including for reason of his actual and/or imputed political opinion, or by way of his somehow being perceived as having contravened Islamic norms and/or of having not adhered to the Taliban's interpretation of Islam, or because of his association with a western country, or because of "widespread conditions of violence" and/or "a breakdown of law enforcement") if he were to return to Afghanistan. I am therefore not satisfied that the applicant would face a real chance of serious harm if he were to return to Afghanistan.
[10] CB:557[64].
Accordingly, the Authority held that the applicant did not meet the requirements of the definition of refugee in s.5H(1) and did not meet the requirements under s.36(2)(a).
Complementary Protection Assessment
The Authority was not satisfied that the applicant would face a real risk of experiencing any kind of harm if he were to return to Afghanistan for the same reasons it had considered under the refugee assessment. As such, the Authority held that the applicant did not meet s.36(2)(aa) as there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Afghanistan, there was a real risk the applicant would suffer significant harm.
Sections 91W & 91WA
In addition to its determinations under ss.36(2)(a) and 36(2)(aa), the Authority also considered ss.91W and 91WA in relation to the applicant’s identity documents and his failure to provide them to the Department. On 26 May 2017, the applicant was issued a written request to produce documentary evidence of his identity, nationality or citizenship, or to provide a reasonable explanation for refusing or failing to comply with this request. As the Authority noted when considering the applicant’s credibility, the applicant did not provide any of the documents requested, and the Authority was not satisfied that the applicant being unable to provide a bogus document (i.e., his taskera) was a reasonable explanation. While the applicant had provided his marriage and child’s birth certificates, as the information contained in these documents was based on the applicant’s own unsubstantiated claims, the Authority was not satisfied the applicant had provided documentary evidence in accordance with s.91W. The Authority determined that:[11]
The applicant has been given a request under s.91W(1). He has failed to comply with the request or to provide a reasonable explanation for this (and neither am I satisfied that the applicant has taken reasonable steps to produce such evidence). Therefore, the grant of the visa is prevented by that section.
[11] CB:559[73].
Regarding the s.91WA consideration in relation to ‘bogus documents’, the Authority determined it unnecessary to make a finding under this section given its findings under s.91W.
DETERMINATION
Ground 1 – Failure to engage with corroborating evidence
The reasons in respect of ground 1 should be read and understood together with the reasons in respect of ground 2.
The Court accepts that the Authority is required to assess and weigh the applicant’s proffered corroborative evidence with all the other evidence.[12]
[12]Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 at [38] (“SZNSP”).
The applicant submits that the Taliban letters and the Certificate were objective corroborative evidence, independent of the applicant’s own testimony, which supported central aspects of his claims. The applicant submits that the reasoning process of the Authority was irrational in that neither the applicant’s purported failure to provide originals of the corroborative documents, nor the ‘manner’ in which this occurred, was a logical or probative ground for ignoring that evidence in the Authority’s assessment of his claims.
It is apparent from the Authority’s reasons that it considered the Taliban letters and the Certificate, in that it described the documents, who they were purportedly from, and discussed their content.[13]
[13] CB: 545 at [30].
The Authority, after explaining its concerns about the applicant’s credibility, firstly focused on the counterfeit taskera which the applicant had provided and came to the conclusion that the applicant was a willing party to furnishing this counterfeit document for the purposes of establishing his claims. The Authority’s reasons for coming to this conclusion are set out in some detail, and while differing minds might come to a different conclusion about the matter, there is nothing illogical in the requisite sense about the Authority’s conclusion.
The Authority was concerned about the applicant’s lack of explanation as to the counterfeit taskera, it was concerned about the lack of provision of his Afghan driving licence when directed to do so, and it was also concerned about the applicant’s failure to provide the originals of the two Taliban letters and the Certificate. This was in the context of the delegate having informed the applicant that it was not uncommon for Sunni men from Logar to claim to the Department that they were from Town A and that they had been working at FOB Shank.
The Authority’s reasons note that the applicant:[14]
[W]as thus plainly on notice that: the credibility of his purported Taliban letters and EODT certificate were in doubt and would have to be inspected (in the same manner as his tasker had been); and that his certificate purporting to be from EODT was not compelling evidence of his claims and that he should try to provide additional evidence in this regard…
[14] CB:547 at [36].
Through his counsel, the applicant submitted to the Court, by reference to the forensic examination of the taskera, that a similar task with respect to the Taliban letters and the Certificate would not be of any value as the documents would not have borne similar identifying features as the taskera. The point that the Authority was making is that by not providing to the Department the original documents as sought and as the applicant indicated originally he was able to provide, any forensic examination of those documents could not be undertaken, and they could not be assessed as being genuine. The fact is that the applicant did not provide those documents and no explanation was forthcoming from him as to why this was so when, on 29 January 2018, the Department was notified that the applicant no longer possessed the documents. It is not appropriate to speculate in submissions to this Court that there might have been reasonable explanations for this. Such explanations could have been provided to the Authority, they were not. The Authority found the ‘manner’ in which the applicant did not provide the documents as ‘very unconvincing’.[15] This was taking into consideration the applicant’s responses to the delegate that he could not provide the Taliban letters and the Certificate ‘because he gave these to Mr W, and then misplaced them when he moved home, and then had them is they were need [sic], and then did not have them when they were unequivocally requested’.[16]
[15] CB:548 at [38].
[16] CB:547[35].
As held in Minister for Immigration and Citizenship v SZNSP:[17]
[35]… Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated….It [does]… not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author… If the [applicant]… was fabricating her clams, it would follow that she would fabricate the evidence upon which those claims are brought. That evidence would include the “corroborative” evidence…
[36]When a decision-maker has conducted a hearing… and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled … to reject evidence which would, if accepted, have corroborated the applicant’s account.
[17] SZNSP at [36]-[36].
The delegate squarely raised with the applicant its concerns about the authenticity of the documents and asked for originals, all of which was on the back of the counterfeit taskera and the delegate informing the applicant of the reasons for the delegate’s concerns.[18]
[18] CB:547 at [35].
The Authority did not ignore the Taliban letters and the Certificate. It did not need to identify anything in the face of those documents to cause it to doubt their authenticity or reliability. The Authority’s conclusions about the applicant’s taskera did provide a logical ground for doubting the credibility of the Taliban letters and the Certificate, particularly when understood in the context of all of the evidence. The Authority did not need to expressly and separately consider or entertain the possibility that the documents were genuine, it did so inferentially.
The Authority’s reasons disclose an active intellectual engagement with these documents, and a rejection of them as being corroborative evidence of the applicant’s claim for the reasons it explained. It was open to the Authority to conclude that, in view of all the evidence in the case, no reliance should be placed on the Taliban letters and the Certificate.[19]
[19] See SZNSP at [35].
Ground 1 is not made out.
Ground 2 – Illogicality & Unreasonableness
The applicant contends that the Authority’s factual conclusions in respect of not working at FOB Shank, not being threatened by the Taliban, not being from Town A and his cousin not having been employed at FOB Shank, did not have a logical, rational or probative basis.
The legal threshold for finding that a decision-maker’s reasons are irrational or illogical is very high. The High Court has observed that: [20]
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[20] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135].
Unreasonableness will be established where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to such a decision.[21]
[21] Minister for Immigration and Citizenship v Li [2013] HCA 18.
There are a number of reasons expressed by the Authority as to why it did not accept the applicant’s claim that he worked for FOB Shank:
(a)In his SHEV application and written claims made in 2013, the applicant claimed that he found work at FOB Shank through his cousin and that he commenced work at FOB Shank military base as a security guard in 2012;[22]
[22] CB:542 at [22].
(b)Attached to his SHEV application was the Certificate which the applicant claimed had been issued to him on 1 February 2013 by EODT, stating that the applicant was commended for his performance, but giving no details of his actual employment duties;[23]
(c)At the SHEV interview in November 2017, the applicant was asked to provide an overview of the process he went through to obtain employment with EODT and to provide an account of what it was like to enter FOB Shank and the various layers of security. The Authority considered these accounts to be the only potentially persuasive evidence that the applicant did in fact seek employment at FOB Shank. The Authority noted that the applicants’ evidence ‘by contrast’ in respect of his duties as a security guard, proved to be ‘far less persuasive’, with reasons provided;[24]
(d)At the SHEV interview, the delegate had asked the applicant to see the original documents. The applicant ‘responded by stating that he had given the originals to Mr W, and that they the applicant said that he (the applicant) may have then misplaced them when he moved house, and that he thought they were in the house but they were lost now. He said that he would try to find these’;[25]
(e)At the SHEV interview the delegate informed the applicant that it was not uncommon for Sunni men from Logar to claim to the Department that they were from Town A and that they had been working at FOB Shank. The delegate further explained that each case was assessed on its merits and explained that those cases which had been more successful had been able to provide evidence such as photographs. The delegate directed the applicant that he should try to provide additional evidence also along with the original of his Certificate;[26]
(f)The Authority concluded that the applicant was clearly on notice that the credibility of his Certificate was in doubt, that it would have to be inspected and that the Certificate was not compelling evidence of his claim and that he should try to provide additional evidence in this regard;[27]
(g)Following the SHEV interview, on 14 December 2017, the applicant’s representative notified the Department that the applicant had located supporting evidence, including the Certificate, which the Department then requested the original of for the purposes of inspection;[28]
(h)Upon this request by the Department, and without any explanation, the applicant through his representative advised the Department that he no longer possessed the documents;[29]
(i)Even though he had been made aware of the need for additional evidence to substantiate his claim that he had been employed at FOB Shank, the applicant did not provide the delegate with any such evidence nor did he provide an explanation as to why he was unable to obtain such further evidence from the American company which he claims is his former employer.[30] This was a matter which the Authority found to be significant;
(j)According to country information, EODT merged with another company in October 2012. The applicant did not provide any independent evidence that would indicate that his purported employer had continued to operate under the name EODT after the merger;[31]and
(k)Significant to the Authority was the fact that the applicant had never provided any original documentation from EODT to establish that he was employed by them at FOB Shank.
[23] CB: 543 at [23].
[24] CB:543 at [25].
[25] CB:547 at [35].
[26] CB:547 at [35].
[27] CB:548 at [36].
[28] CB:548-549 at [37].
[29] CB:548-549 at [37].
[30] CB:548 at [39].
[31] CB:548 at [40].
The Authority then weighed up the evidence overall. It found that the only potentially persuasive evidence was the applicant’s account of security levels at FOB Shank and the manner in which he was interviewed. The Authority came to the conclusion that ‘it would seem that the applicant had obtained some knowledge of such matters from somewhere’ but then weighed that against the ‘serious doubts’ noted earlier and that he had never provided any original documents, the Authority was not satisfied that such knowledge as the applicant had of those matters ‘has come from his personal experience’. This finding was not illogical, it was an open finding to the Authority on the evidence before it. The Authority entertained the possibility that the applicant had personal knowledge of certain matters, but then discounted that possibility for reasons which were explained, it was not an arbitrary decision.
There are a number of reasons expressed by the Authority as to why it did not accept the applicant’s claim that he received two Taliban threat letters:
(a)In his SHEV written claims, the applicant submitted that in March 2013 the Taliban issued him a threat letter, which was left at the family home while he was at work. The letter was found by the applicant’s father who gave it to him. The applicant said that a second threat letter was left at the family home while it was being transferred to its new owner, and after the applicant had gone into hiding;[32]
(b)Attached to the applicant’s SHEV application were the two letters purporting to be from the Taliban with translations. The first letter was translated from the Pashto language and is dated 13 March 2013. The second letter was in Dari and it carried a date of 18 June 2013. Both letters purported to be from the Logar Province Taliban Council;[33]
(c)As noted earlier at [50](d), at the SHEV interview, the delegate had asked the applicant to see the original documents. The applicant ‘responded by stating that he had given the originals to Mr W, and that they the applicant said that he (the applicant) may have then misplaced them when he moved house, and that he thought they were in the house but they were lost now. He said that he would try to find these’;[34]
(d)The Authority concluded that the applicant was clearly on notice that the credibility of his purported Taliban letters was in doubt;[35] and
(e)While the Authority did not find it implausible that the Taliban letters would be written in Pashto and Dari, the Authority had other reasons considering the letters were not credible, and prominent in this regard was the manner in which the applicant had not provided the originals, that is after he was told about the sophisticated testing available to the Department and that the taskera had been tested and found to be counterfeit. The Authority considered that there were serious doubts about the credibility of those documents by the fact that the applicant has not provided the originals to the Department for inspection in circumstances where he said he did not have them because he had given them to Mr W, then misplaced them when he moved home, then indicated he had them, then did not have them when they were ‘unequivocally’ requested.[36] The Authority did not accept that the applicant was no longer in possession of the purported Taliban letters.[37]
[32] CB:543 at [23].
[33] CB543 at [24].
[34] CB:547 [35].
[35] CB:548 [36].
[36] CB:548 [38].
[37] CB:548 [38].
The Authority’s reasons also disclose that:
(a)The applicant arrived in Australia on 31 July 2013, appearing to have departed Afghanistan on or around 4 July 2013;
(b)On 14 September 2013, the applicant had a partial Entry Interview. It appears that the full interview was postponed because the applicant was experiencing physical and mental health problems at the time; and
(c)The Authority formed the view that the applicant appeared to be frustrated by the delay and considered himself fit to be interviewed. He then prepared a handwritten statement in English and provided it to the Department at around this time (circa September 2013). Together with the statement he provided ‘two letters purporting to be from the Taliban’.[38]
[38] CB:541 [17].
The applicant submits that ‘it should be emphasised that there appears to be nothing on the Departments’ file… establishing that the Taliban Letters as originally provided to the Department were copies rather than originals’.[39] The applicant further points to a letter dated 5 August 2020,[40] where the respondent’s solicitors, on instructions, acknowledged:
Regarding the purported Taliban letters (CB 18-19), it is unclear if they are original documents provided to the Department that were scanned, or if they are scans of a copy of the original documents.
[39] Applicant’s outline of submission, filed 15 February 2024 at [63].
[40] Affidavit of Kate Bones, filed 3 September 2020 at p77, Annexure KB6.
The applicant submits that the Authority’s reasoning process was irrational, and that neither the applicant’s purported failure to provide original of the corroborative documents, nor the manner in which this occurred, was a logical or probative ground for ignoring that evidence.
However, there is nothing in the material before the Court which indicates that the applicant had provided the original documents to the Department in 2013. Indeed, the applicant’s own evidence is that he had provided only copies to the Department, and that he had the originals.[41]
[41] CB139, this letter was written after the delegate asked the applicant for the original Taliban letters. A month and a half later, the applicant, through his representative, notified the department that he no longer has in his possession the documents referred to in the earlier correspondence – this was done after the Department had confirmed it wanted to inspect the original documents.
The Authority’s reasons do not disclose any illogicality, irrationality or unreasonableness in terms of its findings that the applicant was not employed at FOB Shank, that the applicant was not threatened by the Taliban, that he was not from Town A and that his cousin had not been employed at FOB Shank. The finding his cousin had not been employed at FOB Shank is intertwined with the finding that he was not employed at FOB Shank, as is the finding that he was not from Town A.
The Authority accepted that it is plausible for the applicant to be affected by factors such as his health and the extent to which he was under stress, to explain the errors in the applicant’s recollection and/or sequencing of events, and that this might explain the applicant experiencing difficulties in the recollection of the particulars of certain past matters. These matters were accepted by the Authority in respect of the inconsistencies between the SHEV application/written claims and the SHEV interview in terms of the sequence of events and how events unfolded.
However, it was because of other concerns about the applicant’s evidence that the Authority found that his claims about these matters were not credible, and which were determinative for the Authority. The Authority then went on to explain these other concerns, beginning with the applicant’s taskera which was found to be counterfeit:[42]
… I would expect that he would be able to provide an authentic taskera which lists his place of birth and the area of residency as [Town A]. The applicant claims that he had this document sent to him from Afghanistan and he provided a copy of this document to the Department. The Department, however, conducted a forensic examination of this document and found it to be counterfeit… the Department requested that the applicant should provide the original of his purported taskera to the Department. This the applicant did… The original of this document was submitted to a forensic examination by the Department. The document was found to be counterfeit…. The Department seized the document such that it woulc not be returned to the applicant… his taskera had been found to be counterfeit and thus met the definition of being a bogus document under the Act and as such has been retained by the Department.
[42] CB:544[29].
The applicant does not raise as a ground of judicial review anything about the finding of the Authority in respect of the taskera being a counterfeit – albeit that finding is implicitly attacked through the submissions made – where the applicant points to the uncertainty of whether the taskera provided by the applicant to the Department was ever an original.
The applicant’s failure to provide to the Department a copy of his Afghan driver’s licence was, in the Authority’s view, a further concern which was determinative in assessing the applicant’s credibility. This was not a failure by the applicant in a vacuum. It was a failure in the context of providing a counterfeit taskera, of not being able to provide other corroborating evidence (except the Certificate) to support the claim that the applicant worked at FOB Shank, and it was a failure in the context of the applicant saying he would provide original documents but then not doing so. The delegate had directed the applicant to provide to him a copy of the Afghan driver’s licence, in the context of the applicant having provided this document when he applied for an Australian driver’s licence. In light of the applicant’s claim that he was from Town A, the Authority’s reasoning is not illogical. The applicant was on notice as to the credibility issues.
The applicant’s submissions are, in reality, an argument as to the merits of the decision and the findings of the Authority. There are logical connections between the evidence and the inferences and/or conclusions drawn by the Authority. The fact that there might have been other conclusions that were open to the Authority on the same evidence, does not ground an illogicality argument.
Ground 2 is not made out.
Ground 3
Ground 3 is argued in the alternative to ground 2, and is that the Authority failed to consider the ‘what if I am wrong?’ test.
The Court accepts the Minister’s submissions in this regard.
The Authority did not express any real doubt as to whether it’s findings as to the past events were correct. As held:[43]
Only if a fair reading of the reasons allows the conclusion that the [Authority]… had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Authority’s]… failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Authority]… had not undertaken the required speculation about the chances of future persecution.
[43] Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [67].
A fair reading of the Authority’s reasons in this instance does not allow such a conclusion.
Ground 3 is not made out.
Ground 4
The applicant submits that the Authority misapplied s.473DD of the Act in deciding that it could not have regard to particular ‘new information’. The particular new information are photographs of the applicant’s tattoos.
In AUS17 v Minister for Immigration and Border Protection[44](“AUS17”) the High Court held that the Authority must assess such new information:
… first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
[44] [2020] HCA 37 at [11].
The Authority’s reasons in respect of the new information are as follows:[45]
I note also that the applicant has provided the IAA with new information to the effect that he has a tattoo and that he fears harm on this basis. The applicant has provided photographs in which a tattoo can be seen on his left forearm. The applicant claims that tattoos are forbidden under Islam and that normal people in the Afghan community would consider this forbidden and that he fears that if he returns to Afghanistan the local community and the Taliban would find out about this and he would be killed on this basis. This has then been expressed by his representative as a fear of persecution for reasons of his: Actual and/or imputed religious beliefs, as not adhering to the Taliban’s interpretation of Islam and/or contravening Islamic norms. The applicant claims that he did not provide any of this information to the delegate because his (the applicant’s) former migration agent, Mr W, was Afghan and the applicant felt embarrassed because he knows it is wrong to get a tattoo. I have not found this persuasive. I note, moreover, that at the applicant’s 30 November 2017 SHEV interview and in making his subsequent submissions to the delegate the applicant was not represented by Mr W but by a Mr FDM. The applicant has offered no explanation of why, if he holds fears of this kind, he did not speak about these matters at the 30 November 2017 SHEV interview or in subsequent submissions to the delegate. Even considering the state of the applicant’s physical and mental health at the time I am not satisfied that the applicant could not have provided this information to the delegate before he made his decision. In making this claim the applicant has sought to rely on reports which refer to the manner in which, in Afghanistan, perceived un-Islamic behaviour and moral transgressions can lead to persecution by the Taliban and other members of society. However, no specific evidence has been provided to establish that persons with tattoos have been harmed in this or any other regard in Afghanistan. Given this, I am not satisfied that there are exceptional circumstances to justify considering this new information.
[45] CB:537[7].
However, the Authority’s reasons pre-date AUS17, and as such it is not surprising that the Authority did not express its findings precisely in accordance with AUS17.[46]
[46] ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 at [64] (“ARO17”).
The reasons unambiguously show that the Authority was not satisfied that the new information was not, and could not have been, provided to the Minister before the delegate made the decision, that is, that s.473DD(b)(i) was not satisfied.
The Authority noted that the applicant had provided photographs in which a tattoo can be seen on his left forearm. From this, and noting that the Authority did not need to engage in a ‘formulaic consideration’ of s 473DD(b) and that it is not obliged to use the precise words of the Act or of legal tests,[47] the Court infers that the requisite assessment has occurred. Firstly, the Court infers that the Authority did consider the photographs to be ‘personal credible information’ and further infers that in noting the absence of evidence that persons with tattoos have been harmed in Afghanistan, the Authority considered whether such information ‘may have affected the consideration of the referred applicant’s claims’.
[47] FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [28].
As such, the Authority’s reasons, when read fairly and without an eye keenly attuned to the detection of error,[48] also show that the Authority was not satisfied that s.473DD(b)(ii) was met.
[48] ARO17 at [62].
If the Court is wrong about this, the applicant has not, in any event, satisfied the Court that the error was material. An error will be material only if it could realistically have deprived the applicant of the opportunity of a successful outcome.[49]
[49] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [72] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45].
Ground 4 is not made out.
Ground 5
It is not necessary to determine this ground, as even if successful, on its own it would not lead the applicant to a successful outcome in the judicial review application.[50]
[50] Both parties submit that the Court must find at least one of the grounds in 1-4 as being established as well as ground 5 in order for the judicial review application to be successful. The Court accepts this.
CONCLUSION
The application for judicial review must be dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 29 April 2024
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