DTN16 and Ors v Minister for Home Affairs and Anor
[2019] FCCA 404
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTN16 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 404 |
| Catchwords: MIGRATION – Protection visa applications – first applicant converts from Sunni Islam to Shia Islam – claims to fear harm from brothers and her husband’s family – Tribunal mischaracterises evidence at hearing as involving significant escalation of claims for protection – whether reasoning of Tribunal irrational or illogical – extent of error – whether error irrational or illogical – whether error material – whether failure to take account of a relevant consideration – whether failure to consider integers of claim – whether issue raised at hearing raised new claim or integer of claim – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 47, 476 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 AVS16 v Minister for Immigration and Border Protection [2018] FCAFC 141 BKE v Office of Children's Guardian [2015] NSWSC 523 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 CNN16 v Minister for Immigration and Border Protection [2018] FCA 1526 CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146 Craig v South Australia (1995) 184 CLR 163 DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Singh v Minister for Home Affairs [2019] FCAFC 3 |
| First Applicant: | DTN16 |
| Second Applicant: | DTO16 |
| Third Applicant: | DTP16 |
| Fourth Applicant: | DTQ16 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2665 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 20 November 2017 |
| Date of Last Submission: | 20 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2019 |
REPRESENTATION
| Counsel for the Applicants: | Ms Kelly |
| Solicitors for the Applicants: | Lander & Rogers Lawyers |
| Counsel for the First Respondent: | Ms Zelezinkow |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
Second Respondent: | Filed submitting notice |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The further amended application filed on 9 November 2017 be dismissed.
The first and second applicants pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2665 of 2016
| DTN16 |
First Applicant
| DTO16 |
Second Applicant
| DTP16 |
Third Applicant
| DTQ16 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a further amended application filed on 9 November 2017, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 November 2016 affirming a decision of a delegate of the Minister refusing to grant the applicants a Protection (class XA) visa under par 65(1)(a) of the Migration Act 1958 (Cth) (Act).
In substance, the first applicant’s application for a Protection visa arose from her claim to fear harm following her conversion from Sunni Islam to Shia Islam after her marriage to the second applicant.
As will appear, the gravamen of the application for judicial review was that the Tribunal’s characterisation of the first applicant’s claim as presented to the Tribunal at the hearing had involved a significant escalation of her claim as it had originally been made. For ease of reference, I record that the Minister accepted that the Tribunal did mischaracterise the first applicant’s claim. The first applicant had always pressed a claim that she feared harm from her in-laws and accordingly, for the Tribunal to have stated that the claim she had received death threats from them represented a significant escalation of her claim did mischaracterise her claims in part. In the circumstances, it is desirable to identify the claims as they were progressively made.
Background
The first and second applicants are citizens of Pakistan aged 28 and 36 years respectively. According to their applications, the first applicant is fluent in Urdu while the second applicant is fluent in Urdu and English.
The second applicant first travelled to Australia on 17 October 2008 on a Student (Class TU) (subclass 572) visa. He was granted two further student visas on 26 May 2011 and 3 May 2013 respectively.
On 21 September 2011, the first and second applicants were married. Their marriage took place in Lahore, Pakistan following which they lived for a time in Karachi. The first applicant claimed that her brothers (who she said associated with extremists) and her in-laws were opposed to her conversion to Shia Islam, and that her relations with them broke down to the point where they wanted nothing to do with her and then, as she claimed, would kill her if she was forced to return to Pakistan.
The first applicant first arrived in Australia on 13 June 2012 as a secondary holder on the second applicant’s student visa. Her visa was re-issued upon the second applicant obtaining a further visa in 2013.
The third and fourth applicants are the children of the first and second applicants and were born in Australia in 2013 and 2014 respectively.
On 17 April 2014, the first applicant applied for a Protection visa. The second together with the third applicant made separate applications for protection as members of the first applicant’s family unit. Upon his birth, the fourth applicant was added to that application.
By her original application the first applicant claimed that she had left Pakistan, experienced harm there and feared that she would face further harm if returned, including as follows:
My husband live in Australia for higher education when I was married with him.
My husband applied spouse visa for me, that’s why I came Australia.
My family was not happy with my marriage, because it was love marriage. They tortured me couple of times. They pressured me to follow religion strictly if not they punished me and forced me to do that.
Some militant groups are after me and my family, I will explain this when I get call for an interview.
I belongs to the Ahle Tashee (Shia) Sect. I feel unsecure to go back.
I have been threatened several times, when I live in Australia. At that moment I made decision never go back to Pakistan.
There is no womens rights and no law and order. Militants groups killings innocent people and fighting to each other like internal war going on. I am normal citizen of Pakistan. No one can protect me. Militant groups especially targeting Shia Sect followers.
The application filed by the second applicant stated that his occupation was as a student and identified the courses of study in which he had been engaged between 1998 – 2012. It contained no separate claims to fear harm including for any of the reasons stated by the first applicant.
At some point in mid-2015 the first applicant submitted a document entitled, Financial Hardship Statement, in which she outlined her impecunious state. In that statement she described that one of her brothers in law had paid for her airline ticket (and that of her daughter) so as to enable them to come to Australia and had also assisted in her husband’s student visa application. The statement also said that the first applicant’s brother in law had obtained a bank loan for those purposes which he had been paying back by instalments and that:
He may ask for this money back as the relationship between my brother in law and ourselves has broken down due to my change of religious sect.
And further:
Since I arrived in Australia, my brother in law stopped in February 2014 when he and the rest of my husband’s [family] learned that I changed my religious sect. My husband’s family asked him to divorce me, but he refused and this inflamed their relationship and all support stopped. . . .
My brother in law and my husband’s family do not want to have anything to do with me or my husband as he objected to our marriage since I changed my religious sect.
In a letter dated 26 May 2015, a psychiatrist, Dr Maud, wrote to the first applicant’s treating general practitioner detailing how the first applicant’s situation was further complicated by her change of religion to a less restrictive practice, which change was reported to have incurred her family’s wrath, causing them to shun her and that:
[The first applicant] reports that she has received letters threatening her life, from her brothers who practice fundamental Islam in Pakistan.
In a statement dated 6 July 2015, the first and second applicants declared that they had made attempts to obtain documents proving the loan obtained by the brother in law existed and that those attempts had been fruitless because the second applicant’s family as a whole did not want to have anything further to do with them by reason that they objected to her marriage and her change of religious sect.
On 3 September 2015, the first applicant sent an email to the department attaching a statement in which she detailed her history including her tertiary qualifications and her relations with her family. She stated that when her brothers had discovered her attraction to the Shia sect in 2011, they had locked her in a dark room, declining her food and water for several days until she had been discovered by her mother who interceded on her behalf. The first applicant also stated that when a proposal of marriage had been made on behalf of the second applicant, this too had been objected to by her brothers on the stated basis that he was ‘from the West’ but that her parents had assisted in the finalisation of her engagement and marriage.
In this statement, the first applicant said that:
When my husband went back to Australia I would visit my friend sometime and we would pray together. Sometime they would visit me and we would pray in my room by locking the door as I was afraid if someone from my husband family came to know about my activities they will threw me away from our house. My brother however found out about my activities and then some people would chase me whenever I would leave home. I have left it a few times and one day in about mid 2011 when I was returning back home from my friend house I was stopped by six men and they told me that I changed my sect and that my brother told them to have a close eye on me. They threat to kill me if I ever visited my Shia friend again or whenever I took part in any religious activities as a Shia Muslim. I was very scared and as soon as my visa to Australia was granted I took the first available flight and came to Australia.
I always wish to have freedom of speech so I can express it in front of everyone that I am a Shia Muslim but being a member of a Sunni family and married in a Sunni family I was not able to do so because of fearing for my life. After my arrival in Australia I have been to Shia community centre and mosque many times. I have changed my sect from Sunni Muslim to Shia Muslim by nominating it in a local newspaper through my lawyers in about September 2013 as I want to get my inheritance part from my brothers. My brothers informed my brother-in-law who sponsor me and his brother study her in Australia. He spoke to my husband harshly to stop his wife activities, when my husband tried to explain to his brother he told him that he will not support him anymore. I have been threatened several times by my brothers and in laws to stop my activities or they will kill me whenever I went back home.
I fear for myself and my family life back home. I fear if I was forced to send back to Pakistan I including my family members will be killed by my brothers, in laws or extremist group followed by my brothers. There are no women rights in Pakistan and the men can do what they want. I cannot seek protection from the authorities as I am a woman and it’s very hard to get proper treatment from the authorities especially if the person is a female Shia muslim. I cannot safely relocate to any parts of the country as the militant groups are operating throughout the country supported by my brothers. They can find me anywhere and will harm me. I cannot seek protection from anyone as I cannot trust anyone as the majority of population in Pakistan is Sunni muslim and Shia muslim are treated harshly throughout the country. (emphasis added)
On 9 September 2015, the first applicant attended an interview with a delegate of the Minister.
On 8 October 2015, the Protection visa application was refused. The delegate’s Decisional Record recorded the first applicant’s claims for protection in some detail including that:
If she returns to Pakistan, she will be killed. She fears for herself and the life of her family. She fears harm from her brothers, her in-laws, and the extremist groups that her brothers follow.
In addressing the consideration of the first applicant’s credibility, the delegate did not accept that her brothers were members of Jamaat ud Dawa (JuD) or Jamaat-e Islami (JI) or that her claimed fear of harm from her brothers was credible.
On 29 October 2015, the applicants applied to the Tribunal for a review of the delegate’s decision. On 26 September 2016, the Tribunal invited the applicants to appear at a hearing scheduled for 8 November 2016 to give evidence and present arguments in relation to the issues arising on their application. For the purposes of that application, the first applicant made a further statutory declaration on 26 October 2016 in which she addressed certain aspects of the delegate’s Decisional Record including the following:
[28] . . . As their sister, my brothers say that I have shamed them . . . that I have insulted them. ‘Honour Killing’ as an excuse to kill a sister is very common in Pakistan. My brothers have threatened and mistreated me over a long period of time. If I have to return to Pakistan they won’t leave me alone. They will also cause harm to my children. They will kill me and they will kill my children. I am also afraid of my in-laws because of their reaction to my conversion. My in-laws have told my brothers to do whatever they want to me, that it is for them to resolve this problem . . .
[39] If I am forced to return to Pakistan I am scared that I will be harmed by my brothers, or by members of their extremist groups, or by my in-laws. My brothers and in-laws do not accept my religious conversion, and my brothers do not accept my marriage and move to a western country.
[40] I also fear that my in-laws may force me to convert back to Sunni Islam and harm me or my husband if I refuse. People are forced to convert back, but most likely I believe they will kill me.
The application for a merits review of that decision was refused on 15 November 2015. The Tribunal provided a written statement of its reasons for affirming the delegate’s decision to refuse the Protection visa applications (Reasons).
On 8 December 2016, the applicants filed an application for judicial review of the Tribunal’s decision.
Tribunal’s decision
The Tribunal set out the background to the application and the applicable legal principles at [1]-[20]. No complaint was made as to these aspects of the Reasons. In its consideration of the claims and evidence, the Tribunal also set out in detail[1] aspects of the first applicant’s claims, statements, declarations and medical reports, some of which has been set out above. As counsel for the applicants submitted, the Tribunal did not overlook the applicants’ claims but had set out the claims that had been made in the application, statutory declaration and otherwise in detail.
[1] Reasons, [21]-[28].
In addressing its findings and providing reasons for its conclusions, the Tribunal recorded its concerns with aspects of the first applicant’s evidence. In doing so the Tribunal distinguished[2] between matters in relation to which it held:
a)some concerns, including information about the role and influence of her brothers; and
b)significant concerns, being her claim that her “in-law family” wanted to kill her because of her religion.
[2] Reasons, [37].
In relation to the first applicant’s brothers, the Tribunal recorded[3] that it had discussed these claims and issues with her at the hearing and that she had stated that her brothers had beat her daily – a statement which it considered to be a significant development in her evidence, as her evidence had previously had been that they had beat her intermittently. The Tribunal also questioned the extent of the suggested familial violence in circumstances where the first applicant had completed her tertiary degree and had been able to marry the second applicant. The Tribunal concluded that the first applicant had exaggerated the extent of the influence which she claimed was exerted by her brothers: Reasons, [40], [44], [46], [47]. The Tribunal also discussed with the first applicant the involvement and responsibilities of:
a)her brother, Hafiz, in JuD and Lashkar-e-taiba (LeT), noting that those groups were not known for targeting minority religious groups: Reasons, [43]-[44];
b)her brother, Naveed, whom she claimed to be the local religious leader of JI in Lahore, and noted that it had been unable to find any mention of Naveed as the appointed leader of that organisation. This was considered unusual having regard to its socially conservative stance and the pyramid structure upon which it was strictly organised: Reasons, [45].
In doing so, the Tribunal had regard to country information which was confirmatory of those matters and expressed significant concern that the first applicant had exaggerated these claims: Reasons, [46]-[47].
[3] Reasons, [38]-[41].
Similarly, the Tribunal did not accept that the first applicant had been able to practice her religion whilst residing in the home of her in-law without being observed doing so: Reasons, [49]. Nor did it accept her claim to having been approached by two men whom she said had been sent by her brothers to watch her: Reasons, [50]. As concerned Honour Killings, the Tribunal accepted the statistical rate of such crimes but examined the nature of the circumstances in which such killings were committed and distinguished the first applicant’s position as her parents had supported her union with the second applicant: Reasons, [51]. The Tribunal considered in some detail the claim that the first applicant’s brothers would search her out in another city and cause her harm, finding that they had not travelled from Lahore in the past and were unlikely to do so in the future: Reasons, [52]-[62].
Concerning the first applicant’s fear of harm from her in-laws, the Tribunal addressed this at [63]-[67]. In particular, the Tribunal found:
. . . however, the applicant now claims that her in-laws are now threatening to kill her because of her conversion and her religious beliefs, a significant escalation of her claim. (emphasis added)
Upon this finding the Tribunal concluded that the first applicant had concocted this claim and for that reason found that the first applicant did not have a real chance of serious harm or face a real risk of significant harm on that account: Reasons, [66]-[67].
The Tribunal concluded that it was not satisfied the first applicant, her husband or children faced such risks and affirmed the delegate’s decision to refuse them Protection visas: Reasons, [113]-[116].
Judicial Review
Being a privative clause decision[4], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[5] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[6]
[4] Section 474(2).
[5]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[6] Sub-s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[7] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[7]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Certain criteria for Protection visas are those set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[8]
[8]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], (Gummow A-CJ, Kiefel J), [102] (Crennan and Bell JJ).
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[9] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[10]
[9]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[10] Section 65(1)(a).
By their further amended application, the applicants raise four grounds of review.
Ground 1 – irrational finding
Ground 1 of the further amended application reads:
The Tribunal erred by making an irrational finding.
Particulars
1. At (64], the Tribunal said:
The Tribunal expressed its concern at this claim of the applicant. The Tribunal notes that the applicant has stated that her brother in law was not supportive of the applicant and her ‘activities’, however the applicant now claims that her in-laws are now
tthreatening to kill her because of her conversion and her religious beliefs, a significant escalation of her claim’.2. That conclusion was not open on the evidence.
3. In her original statement in support of her claims, Ms Rehman said as follows (my emphasis):
‘I have been threatened several times by my brothers and in laws to stop my activities or they will kill me’: 179
4. In her second written statement, Ms Rehman made the same claim: see [39]-(40], 243.
5. Based on its characterisation of the evidence as escalating the Tribunal concluded that ‘the applicant has concocted this claim to strengthen her argument’: (65], 293.
6. The finding that the applicant had ‘escalated’ her claim and that, on that basis, she had ‘concocted’ it was irrational.
The complaint of irrationality stemmed from the Tribunal’s characterisation of the claim made by the first applicant in her original statement that she had been threatened several times by her brothers and her in-laws to stop her activities or that she would be killed.
Applicable principles – judicial review of fact finding
An administrative decision may be vitiated by jurisdictional error if the determination was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.”[11] Thus, the judicial review of an administrative decision, the challenge of which is based upon irrationality, illogicality or upon findings or inferences of fact said not to be supported on logical grounds, entails consideration of the fact finding process undertaken by the administrative decision-maker in reaching its decision.
[11]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, [59] (Griffiths and Moshinsky JJ).
When an administrative decision is found to be wholly illogical or irrational, this may ground a conclusion that the decision is affected by jurisdictional error such as to attract prerogative relief.[12]
[12] SZMDS, supra (2010) 240 CLR 611, [40], [57], [96], [121], [130]-[133], [135].
Where a challenge to an administrative decision is grounded upon irrationality or illogicality, the correct approach is to ask whether it was open to the decision-maker to engage in the reasoning process which had been engaged in or to make the findings which were made on the material that was before it.[13] It is well settled that a challenge grounded upon irrationality will not be made out where the impugned decision is one upon which reasonable minds might differ.[14] Nor will an irrationality challenge be made out merely by demonstrating that a finding was factually incorrect.[15] Instead, the impugned finding must be shown to have been material to the ultimate decision.[16]
[13]SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ); Minister for Immigration and Citzenship v SZKRT [2013] FCA 317, [151]-[153] (Robertson J); CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146, [60] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, [47] (Griffiths, Perry and Bromich JJ); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
[14]SZMDS, supra (2010) 240 CLR 611, [135]; Gill, supra [2017] FCAFC 51, [62]; ARG15, supra [2016] FCAFC 174, [47]; CQG15, supra [2016] FCAFC 146, [60].
[15] ARG15, supra [2016] FCAFC 174, [53].
[16]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [89] (McHugh, Gummow and Hayne JJ); SZWCO v Minister for Immigration and Border Protection [2016] FCA 51, [64]-[67] (Wigney J); Gill, supra [2017] FCAFC 51, [65] (Griffiths and Moshinsky JJ).
A seminal statement of principle respecting irrationality and illogicality in the process of administrative decision-making was made in Minister for Immigration and Citizenship v SZMDS.[17] The test is a stringent one and was stated by Crennan and Bell JJ as follows:[18]
. . . the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Later their Honours stated:[19]
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.
[17] (2010) 240 CLR 611.
[18] (2010) 240 CLR 611, [135].
[19] (2010) 240 CLR 611, [135].
To establish illogicality or irrationality sufficient to give rise to jurisdictional error in refusing a Protection visa, it must be demonstrated that the decision as to the state of satisfaction required by s 65 was one which no rational or logical decision maker could have arrived at on the same evidence as was before the Tribunal.[20] By extension, this court cannot conclude that a decision was irrational, illogical or unreasonable because the Tribunal reached one decision over another where the probative evidence was capable of supporting different processes of reasoning which were logically, rationally or reasonably open.[21]
[20] SZMDS, supra (2010) 240 CLR 611, [130] (Crennan and Bell JJ).
[21] SZMDS, supra (2010) 240 CLR 611, [131] (Crennan and Bell JJ).
Accordingly, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it adopted.[22]
[22] SZMDS, supra (2010) 240 CLR 611, [133] (Crennan and Bell JJ).
In SZMDS,[23] Crennan and Bell JJ identified three means by which a decision might be shown to be demonstrably illogical or irrational:
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.
This statement of principle has been applied by intermediate appellate and first instance courts on many occasions.
[23] SZMDS, supra (2010) 240 CLR 611, [135]; see also [78], (Heydon J).
To similar effect, in Minister for Immigration and Border Protection v Sabharwal[24] Perram, Murphy and Lee JJ, citing SZMDS, held that:
lllogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material[25] . . .
The Full Court endorsed the analysis of Allsop CJ in Minister for Immigration and Border Protection v Stretton,[26] that the question was:
. . . whether a decision-maker could reasonably come to the conclusion reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
See also Singh v Minister for Home Affairs.[27]
[24] [2018] FCAFC 160, [45] (Perram J, Allsop CJ and Lee J agreeing).
[25] Citing SZMDS, supra [130]-[132] and [135] (Crennan and Bell JJ), [78] (Heydon J).
[26] [2016] FCAFC 11; (2016) 237 FCR 1, [21].
[27] [2019] FCAFC 3, [57] (Reeves, O’Callaghan and Thawley JJ).
The Full Court has repeatedly accepted that findings or reasoning ‘along the way’ to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error.[28] A finding ‘along the way’ to the ultimate conclusion that the criteria for the grant of a Protection visa had not been satisfied may commonly involve an adverse credibility finding (as indeed occurred in this case).
[28]See eg. SZMDS, supra (2010) 240 CLR 611, [132] (Crennan and Bell JJ); DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641, [30(4)]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [34]; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [45].
Credibility
As noted above, the Tribunal reasoned that it had both concerns and significant concerns respecting the credibility of the first applicant’s claims. It also found that the applicant had exaggerated her evidence in important respects. An adverse credibility finding which is illogical or irrational may suffice to establish error of a kind which is properly to be characterised as jurisdictional.
In BZD17,[29] Perram, Perry and O’Callaghan JJ stated that:
. . . findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error.[30] This is particularly so where, relevantly, the adverse credibility finding was a critical step in the Tribunal’s decision that it was not satisfied that an applicant met the criteria for the grant of a visa.[31]
[29] [2018] FCAFC 94, [34].
[30] Citing SZMDS, supra (2010) 240 CLR 611, [132].
[31]Citing DAO16 at [30(4)] (approving Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [56] (Wigney J)).
The approach taken to adverse credibility findings was stated by the Full Court in DAO16 v Minister for Immigration and Border Protection (in the context of legal unreasonableness), as follows:[32]
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review.[33] The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae.[34] In each case it is necessary to analyse in detail what the decision-maker has decided.[35]
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis.[36] In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS[37] that:
135 … 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. (Emphasis added)
[32] (2018) 353 ALR 641.
[33]Citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, [37]-[38] (the Court).
[34]Citing ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109, [83](b)).
[35]Citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [77], (Robertson J).
[36] Citing ARG15, supra [83](d).
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection[38] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it.[39]” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”.[40]
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error.[41] In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN[42] (in a passage approved in CQG15 at [60]) that:
[39]Citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676, [54]
[40]Citing SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113, [37].
[41] Citing SZMDS, supra [132].
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review.[43] As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.”[44] Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality.”[45]
[43] SZMDS, [96]; SZVAP,[14]-[15].
[44] Citing SZRKT,[148]; SZMDS, [135] and CQG15, [60].
[45] Citing CQG15, [61].
In the way in which the parties’ submissions were made, two questions were posed. First, did the Tribunal make an erroneous finding, being a finding which was irrational or illogical? This might be understood as asking whether it was open to the Tribunal to engage in the process of reasoning in which it had engaged or to make the findings which it did make on the material that was before it? Secondly, if so, was the finding material to the decision ultimately made by the Tribunal?
Erroneous finding? Kill threats by in-laws
Although I have set out an extract of this part of the Reasons above, it is convenient to restate the Tribunal’s conclusion at [64] in full:
The Tribunal expressed its concern at this claim of the applicant. The Tribunal notes that the applicant has stated that the brother in law was not supportive of the applicant and her ‘activities’, however the applicant now claims that her in-laws are threatening to kill her because of her conversion and religious beliefs, a significant escalation of her claim.
It was common ground that the reference to those ‘activities’ was a reference to the first applicant’s practice of Shia Islam.
From the Reasons at [64] it is apparent that the Tribunal: (1) considered the first applicant had claimed that her brother in law had not been supportive of her practice of Shia Muslim; (2) regarded as new a claim that her in-laws were threatening to kill her; (3) characterised this new claim as constituting a significant escalation of her original claims.
The applicants attacked the reasoning at [64] upon the basis that for the Tribunal to have characterised the first applicant’s evidence as evolving in a manner which entailed a significant escalation of her claim proceeded from a false premise. They pointed to the first applicant’s claim in her first statement which had referred to both her brothers and her in-laws and that she would be killed unless she stopped her activities (being the practice of Shia Islam). It was said that the first applicant had consistently claimed: (1) to fear harm from her in-laws; (2) that her fear of harm was a fear of physical harm, including death; (3) that her fear was because her relatives disapproved of her conversion and practice of Shia Islam. The applicants submitted that it was not open to characterise the first applicant’s evidence as a significant escalation of her claims where such claims had been made in her first statement and accordingly, it was irrational for the Tribunal to have concluded that there had been a significant escalation in the first applicant’s claims.
The Minister accepted that the first applicant had made a claim to fear harm in the manner alleged. No issue was taken with the chronology of events as relied upon by the applicants in seeking to demonstrate that the claim had been so made.
While the applicable principles were common ground, the Minister submitted that the authorities made plain that a high threshold was set to make out jurisdictional error on the basis of irrationality/illogicality.
The Minister accepted that in characterising the first applicant’s evidence as involving a significant escalation of her claims insofar as it concerned alleged threats to kill by her in-laws, the Tribunal had erred to have so characterised the first applicant’s claims. The Minister submitted, however, that factual error was not in itself a sufficient basis on which to establish jurisdictional error and that even if one finding by an administrative decision-maker had been erroneous, it did not follow that such error would infect the whole of its reasoning process or all other findings which had been made.[46]
[46] Citing ARG15, [2015] FCAFC 174, [53].
Was it open to the Tribunal to engage in the process of reasoning in which it had engaged or to make the findings which it did make on the material that was before it?
On the material that was before it, the ultimate finding which it made along the way was that it did not accept the first applicant’s in-laws wished to harm her “because of her conversion to Shia or because she is now a Shia, or will require to convert to Sunni” and that she had concocted this claim so as to strengthen her application: Reasons, [66]. In this context, I consider that the applicants’ submission which fixed upon the finding that there had been a significant escalation of the first applicant’s claims as constituting the irrational conclusion did not sufficiently recognise the Tribunal’s process of analysis. Contrary to the applicants’ approach (and accepting the finding to have been erroneous or at least inaccurate), I regard the finding as to a ‘significant escalation’ in the claims as being a finding which was made along the way to the conclusion at [66] that the first applicant’s in-laws did not wish to cause her harm by reason of her conversion to Shia Islam.
As noted, the Minister conceded that the Tribunal had mischaracterised the first applicant’s claim insofar as it found that by giving evidence that her in-laws were threatening to kill her because of her conversion and her religious beliefs, there had been a significant escalation of that claim. The Minister submitted that any factual error involved in a failure to recognise that the first applicant had made this claim was of itself insufficient to support a conclusion of irrational reasoning.
The Tribunal’s impugned finding at [64] formed part of its detailed consideration of the topic, Credibility: Reasons, [32]-[67]. The process of reasoning employed by the Tribunal in reaching the ultimate finding in the Reasons at [66] was to:
a)set out the first applicant’s claims and the evidence on which she relied: Reasons, [21]-[28]. As noted above at [23], the applicant’s counsel accepted that the Tribunal had not overlooked her claims and had set out those claims in some detail;
b)identify the settled principle that it was not required to accept uncritically any or all of the allegations that were made by an applicant: Reasons, [36];
c)provide by way of overview, a statement that it had both concerns and significant concerns respecting the claims to fear harm from her brothers and in-laws respectively: Reasons, [37];
d)analysed the evidence and material before it and its discussion with the applicant of that material as set out above at [25]-[26];
e)found that the claims to fear harm from her brothers was exaggerated and in doing so had regard to country information: Reasons, [38]-[62], [66];
f)having regard to the matters examined in the Reasons at [63]-[66], the Tribunal did not accept the claim that the first applicant’s in-laws wished to harm her;
g)concluded that the first applicant did not have a real chance of serious harm or face a real risk of significant harm for the reasons which she claimed: Reasons, [67].
Insofar as the Tribunal characterised the first applicant’s evidence as involving (albeit erroneously) a significant escalation of her claims, it is nonetheless of some utility to examine the evolving nature of those claims. As appears from the claims as made in the original application, the Financial Hardship Statement and the history provided to her psychiatrist as set out at [10], [12] and [13] above, the first applicant did not make a distinct or clearly articulated claim to fear harm by reason of a fear that her in-laws had made threats to kill her. The highest that the evidence went in relation to threats of such harm in:
a)the Protection visa application, was that she had been, in an ill-defined way, threatened several times while living in Australia;
b)the Financial Hardship Statement, was a contention that her brother in law and her in-laws did not want to have anything to do with her or her husband by reason of her conversion to Shia Islam;
c)the history contained in the psychiatrist’s report, was a claim that the first applicant had “received letters threating her life from her brothers”.
As noted above at [14], the first and second applicants declared that they had made attempts to obtain documents in proof of their claims but had done so unsuccessfully. It also appears that the applicants produced none of the letters from her brothers threatening her life. In contrast with the applicants’ submissions, none of those documents contained any claim that there had been a threat to kill by her in-laws.
Although my attention was not drawn to it specifically, I note that a further medical report was before the Tribunal. The report dated 7 September 2015 was by the first applicant’s perinatal nurse and addressed “To whom it may concern.” The report stated that the first applicant continued to worry about ongoing death threats which she had been receiving. It did not identify the source of those threats or whether the author[s] had been identifiable.
The first distinct claim to fear harm as a result of being killed by her in-laws was made in the statement made in September 2015. For ease of reference the material statement was as follows:
I have changed my sect from Sunni Muslim to Shia Muslim by nominating it in a local newspaper through my lawyers in about September 2013 as I want to get my inheritance part from my brothers. My brothers informed my brother-in-law who sponsor me and his brother study her in Australia. He spoke to my husband harshly to stop his wife activities, . . . he told him that he will not support him anymore. I have been threatened several times by my brothers and in laws to stop my activities or they will kill me whenever I went back home. (emphasis added)
From this statement it appears that the catalyst for the alleged threats had been the first applicant’s desire to obtain her share in an inheritance. However, on any view of that statement, the first applicant had made a claim to fear harm from her in-laws by being killed.
The claim was then articulated in slightly different terms by the first applicant in her second written statement which included the following:
My brothers and in-laws do not accept my religious conversion . . .
I also fear that my in-laws may force me to convert back to Sunni Islam and harm me or my husband if I refuse. People are forced to covert back, but most likely I believe they will kill me [39]-[40].
On this occasion, the reason that was assigned for the first applicant holding a well-founded fear of harm was because of re-conversion.
Contrary to the applicants’ submissions, I consider that there was not only one conclusion open on the evidence based upon an assessment of whether the first applicant’s in-laws wished to cause her harm by reason of her conversion to Shia Islam. Nor do I accept that the decision to which the Tribunal came at [66] was simply not open on the evidence or one for which there was no logical connection between the evidence and the inferences or conclusions drawn from the information which was assessed. As the Full Court observed in DYK16 v Minister for Immigration and Border Protection:[47]
. . . assertions of illogicality and irrationality can too readily be used to conceal what is simply an attack on the merits of the relevant findings and decision.
[47] [2018] FCAFC 222, [79] (Collier, Middleton and Rangiah JJ).
It was open to the Tribunal to express and distinguish its concern between the credibility of the first applicant’s claim to fear harm about the role and apparent influence of her brothers on the one hand and its significant concern about her claim that her family and in-laws wanted her to be killed because of her religion. Thematically, these concerns were identified in the Reasons at [37] and then explored at [38]-[66].
It is apparent that the Tribunal made a finding respecting the first applicant’s claim to be at risk of harm from her brothers when she was away from her home as not being supported by evidence and accordingly conjectural: Reasons, [57]-[58]. In my opinion, those conclusions were open on the findings which preceded it. They did not depend solely upon its criticism of the first applicant’s expressed fear of harm from her brothers.
The Minister also demonstrated by reference to the Reasons that the first applicant’s evidence had changed in relation to her allegations:
a)of being a victim of violence. Her earlier claims had been that she had been targeted intermittently and later contended to suffering daily beatings: Reasons, [39]-[41];
b)concerning the claims that her brothers had played a part in extremist organisations in Pakistan: Reasons, [47]-[50], [57].
I agree that it was open to the Tribunal to find that the first applicant had introduced evidence so as to strengthen her claim in circumstances where she had already given a detailed account of the violence which she claimed had been directed at her. I also agree that the Tribunal was entitled to find that the claims that her brothers would seek to harm her when she was away from her home was not supported by evidence and that this was conjecture on her part. For those reasons, the Tribunal rejected the first applicant’s primary claim – being the risk of harm from her family and brothers.
Moreover, support for the Tribunal’s conclusion that the claim to fear threats to kill from the first applicant’s in-laws had been made to bolster her existing claims can be drawn from an examination of the claims and Reasons. Those materials demonstrate that, in part, the first applicant had advanced a claim that the catalyst for those threats from her in-laws had been communications to her in-laws from her brothers, in effect encouraging them to do so: Reasons, [63]. As will be recalled, the Tribunal examined the position of the first applicant’s brothers in some detail and concluded that her claims and evidence had been exaggerated: Reasons, [38]-[59], [66]. Rejection of the claims that the first applicant’s brothers had incited her in-laws to do whatever they wanted to her necessarily undermined the secondary claims to a fear of harm resulting from the in-laws threats to kill.
I accept the Minister’s submission that adverse credibility findings will often be based upon a number of facts and circumstances with the result that if a Tribunal’s findings upon one of those facts was illogical or irrational, it does not necessarily follow that the ultimate decision would be affected by jurisdictional error. And so in SZWCO v Minister for Immigration and Border Protection,[48] Wigney J held that:
Many decisions of the Tribunal ultimately turn on findings about the honesty and credibility of the review applicant. If the Tribunal finds that the review applicant was not a credible witness and had falsified or exaggerated the claims that provided the basis for the claim that they had a well-founded fear of persecution, or were at risk of significant harm, it is likely to be open to the Tribunal to find that it was not satisfied that the review applicant was a non-citizen to whom Australia owed protection obligations. Often an adverse credibility finding is based on a number of facts and circumstances. If one of the findings, or the Tribunal’s reasoning based on that finding, could be said to be illogical or irrational, it does not necessarily follow that the Tribunal’s ultimate decision was affected by jurisdictional error. If the degree and nature of the illogicality or irrationality was not significant, and other facts and circumstances found by the Tribunal were capable of logically and rationally supporting the adverse credibility finding, or even that reasonable minds might differ based on those matters, it could not be concluded that the adverse credibility finding was illogical or irrational. Nor could it be found that the Tribunal’s decision that it was not satisfied that the visa applicant was a non-citizen to whom Australia owed protection obligations involved jurisdictional error.
In Gill v Minister for Immigration and Border Protection,[49] the Full Court considered his Honour’s analysis in SZWCO to be helpful.
[48] [2016] FCA 51, [66].
[49] [2017] FCAFC 51, [82] (Griffiths and Moshinsky JJ).
As SZMDS and later authorities emphasise, an affirmative answer to the question whether an administrative decision is illogical or irrational should not be lightly given.[50] In ARG15 v Minister for Immigration and Border Protection,[51]Griffiths, Perry and Bromwich JJ stated:
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”[52] Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error.[53]
See also Gill v Minister for Immigration and Border Protection.[54]
[50]SZMDS, supra, (2010) 240 CLR 611, [35], [40] (Gummow ACJ, Kiefel J diss’), [86] (Heydon J), [122], [130] (Crennan and Bell JJ); cf Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, [48] (Griffiths, White and Bromwich JJ); BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6, [60] (Griffiths, Gleeson and Colvin JJ).
[51] [2016] FCAFC 174, [47].
[52]Citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [148] (Robertson J); SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1, [84] (McKerracher J, Reeves J agreeing); Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [52] (Wigney J).
[53]Citing BKE v Office of Children's Guardian [2015] NSWSC 523, [113] and the cases referred to (Beech-Jones J).
[54] [2017] FCAFC 51, [62].
Those statements of principles serve to reinforce that the reasons of a Tribunal are not to be read in an overzealous fashion or with an eye keenly attuned to error.[55] It is not the case that every lapse in logic or erroneous finding of fact or failure to find a fact will suffice to demonstrate error or support a claim of jurisdictional error.[56]
[55] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
[56] Ibid.
It was erroneous or inaccurate for the Tribunal to have characterised the first applicant’s evidence as involving a significant escalation of her claims insofar as this reasoning encapsulated the claim to also fear harm by means of threats to kill from her in-laws. Such reasoning was erroneous since that claim had been made by the first applicant at least from the time of her first formal statement. However, it was not erroneous insofar as the Tribunal’s analysis of the first applicant’s claims as outlined at [10], [12]-[16] and [62]-[66] above had evolved in a way which supported a conclusion that the first applicant had exaggerated her evidence.
To adapt the analysis in ARG15, the Tribunal was explaining why it considered it to be implausible that a person in the particular circumstances of the first applicant’s in-laws would be involved in killing or arranging for her to be killed. Even if the finding of a significant escalation in the first applicant’s claims may not have been accurate that is not the test in a judicial review challenge.[57]
[57] Cf Gill, supra [2017] FCAFC 51, [62] (Griffiths and Moshinsky JJ).
On the threshold that applies in the case of irrational or illogical reasoning, I decline to hold that that threshold was satisfied. Upon the authorities examined above, in the conduct of judicial review this court cannot characterise the Tribunal’s decision to be illogical or irrational or unreasonable, “simply because one conclusion has been preferred to another possible conclusion” Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality. In this case, I consider that there was room for a logical or rational person to reach the conclusion declining to accept the first applicant’s claim that her husband’s family wished to harm her because of her conversion to Shia Islam and to reconvert her to Sunni Islam and that she had concocted those claims: cf Reasons, [66]; SZDMS, [135].
Material error?
If I am wrong in that conclusion, it remains to consider the second question posed by the parties’ submissions; that is, whether the erroneous finding (if properly gauged as being irrational), was material to the decision ultimately made.
The Minister submitted that if the impugned finding as to a fear of harm from the first applicant’s in-laws should be characterised as irrational, it was not material to the ultimate decision. Contextually, reliance was placed upon the fact that, when making the impugned finding in its Reasons at [64], the Tribunal made a number of adverse credibility findings respecting the first applicant. It was submitted that when the Reasons were read as a whole, it was clear the impugned finding was only one of several considerations that led to the ultimate rejection of the claim for protection. Accordingly, it was submitted that the impugned finding could not be characterised as being irrational in the requisite sense so as to support a finding of jurisdictional error.
The applicants submitted that there were no other findings that would have supported the conclusion that the first applicant had concocted this claim and that such a conclusion was an essential step in the Tribunal’s rejection of the first applicant’s claim to fear harm from her in-laws. The applicants submitted that once the characterisation of a significant escalation in the claims and evidence had been made, this had coloured everything which followed as being exaggeration and recent invention. It was said not to be open to seek to isolate the findings at [66]-[67] or to suggest that the impugned finding was not material to the ultimate rejection of the claim.
As set out at [40] above, an impugned finding must be shown to be material to the ultimate decision. As I understand the authorities, in the case of a challenge to a finding along the way, it is the conclusion at that point in the process of reasoning which is the principal subject of focus. In the present case, the finding along the way which was impugned by the applicants was the mischaracterisation of the first applicant’s evidence relating to the threats of harm from her in-laws as involving a significant escalation of her claims. The ultimate finding ‘along the way’ was the conclusion at [66] rejecting the claims that the first applicant’s in-laws wished to harm her because of her conversion to Shia Islam, her now being a Shia or that they would force her to reconvert to Sunni Islam. In that context, if the impugned finding at [64] was not material to the conclusion at [66], it will not support a conclusion that the decision was affected by jurisdictional error.
More broadly, it may be that in some cases, a Tribunal’s ultimate decision – whether it holds the requisite degree of satisfaction that the criteria for the grant of a visa are made out – can also be supported on other grounds notwithstanding that one of the findings on material questions of fact is shown to be erroneous. In such cases, an impugned finding along the way may also be demonstrated not to be material to that ultimate finding.[58] However, in the view which I take of the present case, it is sufficient to conclude that the impugned finding at [64] was not material to the Tribunal’s conclusion at [66].
[58] Whether that finding be for or against the grant of a visa.
As stated above, I do not accept that the finding as to a significant escalation of the first applicant’s claims provides the correct lens through which to focus upon whether the Tribunal’s process of reasoning or the decision which it reached at [66] was affected by irrational or illogical reasoning. The applicants sought, in effect, to confine analysis of the reasoning process employed by the Tribunal to whether it had mischaracterised the first applicant’s claims and evidence and the conclusion that there had been a significant escalation in the claims. In my view, a broader analysis was required. Attention was required to be given to both the finding of significant escalation and the conclusion made at that point whether the first applicant’s fears to harm from her in-laws should be accepted.
I do not accept the applicants’ submission that there were no other findings that would have supported the conclusion rejecting the claim that the first applicant’s in-laws wished to harm her by reason of her conversion to Shia Islam. Nor do I accept that the finding that the first applicant had concocted this claim was a conclusion which constituted an essential step in the Tribunal’s rejection of the first applicant’s claim to fear harm from her in-laws. This finding was not integral to a conclusion that the first applicant’s fears of harm from her in-laws should not be accepted. For example, a conclusion rejecting the primary claim as to the extent of the influence which could be exerted by the first applicant’s brothers and whether they had told the in-laws they could do whatever they liked with her, was in the context of this case capable of supporting a conclusion rejecting the secondary claims to fear from her in-laws: see above at [69]-[70], cf SZWCO,[59] Gill.[60]
[59] [2016] FCA 51, [66].
[60] [2017] FCAFC 51, [82].
The Tribunal considered the applicant’s secondary claims (being that the first applicant feared harm from her in-laws) in the context that the primary claim to fear harm from her family and brothers had been rejected as being exaggerated. The Tribunal at [39]-[62], addressed the claim to fear of harm from the first applicant’s brothers and at [63] considered and rejected the claim that the first applicant feared harm from her in-laws because they had been told by her brothers to do with her whatever they wanted to do.
The Tribunal considered all claims in the context of its credibility findings. The Tribunal made significant adverse credibility findings respecting both the primary and secondary claims. In short, the Tribunal rejected the claims as to the supposed threats posed by her brother’s as exaggerated and took account of country information in doing so. Further, it considered that it was implausible that the first applicant’s in-laws would not have been aware of her religious practice in the nine month period of her residing with them in Karachi: Reasons, [63]-[69]. As to the suggested claim to fear harm from her in-laws, the Tribunal did not accept that her in-laws were unaware of her religious beliefs and practices while residing with them in Karachi from September 2011 until June 2012. Nor did it accept that the family of her husband would not notice that the first applicant practiced her faith at this time or that she associated with Shia Muslims during her time in Karachi. The Tribunal found that although her in-laws may not have been supportive of her religious beliefs and practices, it did not accept that this meant they had threatened the first applicant, washed their hands of her, would force her to re-convert to Sunni Muslim or lend support to her brothers in seeking to harm her.
The Tribunal noted that: (a) the financial support which had been lent by the first applicant’s brother-in-law had been proffered in full knowledge of her religious beliefs and practice; (b) the first applicant had not been forced to reconvert to Sunni Islam during the period of her residence in Karachi; (c) it did not accept that the first applicant’s conversion to Shia Islam had been a reason for any supposed withdrawal of financial support.
The cumulative effect of those considerations may be seen as supporting a conclusion that the Tribunal had a number of reasons why it rejected the first applicant’s claim to fear harm from her in-laws. The Tribunal’s consideration of the first applicant’s conversion to Shia Islam, country information and the apparent fear of harm from her brothers and in-laws were amongst the several considerations which led the Tribunal to its ultimate conclusion to not accept that the first applicant’s in-laws wished to harm her because of her conversion to Shia Islam, or that they would require her to reconvert to Sunni Islam and that she had concocted such claims so as to strengthen her claim for a Protection visa. Having regard to the several bases upon which the Tribunal had rejected the first applicant’s evidence and claims, the rejection of her claim to fear harm from her in-laws on the basis that there had been a significant escalation of her claims was not material to the Tribunal’s ultimate decision. It was certainly not an essential step in the conclusion rejecting the claim to fear of harm from her in-laws.
Ground 1 is rejected.
Ground 2 – failure to take account of a relevant consideration
Ground 2, as set out in the further amended application, reads:
The Tribunal failed to take into account a relevant consideration, constructively failed to exercise jurisdiction and/or denied the applicant procedural fairness.
Consider relevant information.Particulars
1.The applicant claimed that after she had moved to live with her husband’s family in Karachi, her brother found out that she was practising the Shia faith. She claimed that from then on, “some people would chase me whenever I would leave home”: 178.
2.This claim was directly related to the applicant’s expressed fear of harm from fundamentalist groups acting at the direction of her brothers.
3.The Tribunal does not, in terms, deal with this evidence.
4.The allegation that the applicant was chased whenever she left the house was information that supported her claim that her brothers had sufficient influence and control to direct that harm be cause to her in Karachi.
5.It also addressed events anterior to the event alleged to have prompted the applicant’s departure from Pakistan (being the alleged confrontation involving six men). It was evidence that, if believed strengthened the probability of the later event occurring.
6.The Tribunal concluded that:
a. the brothers did not harm the applicant while she lived in Karachi; and
b. the applicant’s claim that her brother’s would seek to harm her away from her family home is ‘not supported by evidence’ and is ‘conjecture’ on the part of the applicant: [CB 57, 292].
7.If the applicant’s evidence about being chased each time she left the house had been accepted, these findings would not have been open to the Tribunal. By failing to engage with this evidence, the Tribunal failed to take into account relevant information
consider relevant information.
8.The failure to make positive findings of fact on these matters, which may have resulted in a different conclusion being reached on the ultimate question, was a constructive failure by the Tribunal to exercise jurisdiction and a denial of procedural fairness.
The substantive complaint raised by Ground 2 was that the Tribunal had failed to deal with an integer of a claim made by the first applicant that, from the time her brother had discovered her conversion to Shia Islam, she had been chased whenever she had left the house.
The Minister submitted that the Tribunal had rejected the factual premise upon which this complaint rested; namely, that the first applicant’s brothers could cause her harm via their intermediaries.
It was common ground that the Tribunal was required to deal with the first applicant’s claims and their component integers: Htun v Minister for Immigration and Multicultural Affairs.[61] It was also accepted that a failure to consider an integer of a claim was to be distinguished from errant fact finding.[62] In particular, an administrative decision-maker is subject to a mandatory obligation to consider every claim (and accordingly each integer of that claim).[63] Contrastingly, it is not required to refer to every piece of evidence which is before it.[64] The nature of the distinction between an administrative decision-maker’s obligation to deal with a claim and its component integers and its consideration of the evidence was usefully discussed by the Full Court in Minister for Immigration and Border Protection v SZSRS.[65]
[61] (2001) 233 FCR 136, [42] (Allsop J, Spender and Merkel JJ agreeing).
[62] Ibid.
[63]Minister for Aboriginal Affairs v Peko-Wallsend (186) 162 CLR 24, 39 (Mason J); see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.
[64] Tran v Minister for Multicultural and Indigenous Affairs [2004] FCAFC 297, [6].
[65] [2014] FCAFC 16, [53]-[54] (Katzmann, Griffiths and Wigney J).
Counsel for the applicant correctly submitted that a Tribunal need not refer to every item of evidence but that a failure to refer to an important piece of evidence may indicate that it had not been considered.[66] It was further submitted that if a Tribunal failed to consider evidence which might have had a bearing on the outcome of the review and which was not so insignificant that it could not have had a material bearing on the decision, such failure would amount to a failure to conduct the review in a manner required by the Act and may properly be characterised as jurisdictional error.[67]
[66] SZSRS, supra [2014] FCAFC 16, [27].
[67]SZSRS v Minister for Immigration and Border Protection, [2013] FCCA 1858, [15] (Cameron J).
As counsel for the applicants submitted, “[t]he expression ‘integers of a claim’ denotes those of the alleged facts which, if the Tribunal were satisfied exist, ought to lead the Tribunal to conclude that the applicant has satisfied the criteria for the granting of a Protection visa.”[68]
[68]SZURJ v Minister for Immigration and Border Protection (2016) 312 FLR 345, [19]; SZURJ v Minister for Immigration [2016] FCCA 1771, [19].
In Minister for Immigration and Citizenship v SZRKT[69] Robertson J stated that merely to ignore relevant material did not of itself amount to jurisdictional error and whether it would do so would depend in part upon the cogency of the material said to have been advanced by way of claim or integer and about which complaint is being made.[70]
[69] [2013] 212 FCA 317, [111]-[115], [122].
[70]See also CNN16 v Minister for Immigration and Border Protection [2018] FCA 1526, [26] (Colvin J), [122]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, [62] (Griffiths, Perry and Bromich JJ).
In SZSRS, the Full Court accepted that an applicant seeking judicial review bore the onus of proving that the subject integer had not been considered, that the Tribunal was not bound to refer to every item of evidence and that a failure to do so did not necessarily mean that it had not been so considered.[71] Their Honours identified that the question of failure to address an integer of a claim depended upon two matters: (1) the significance of the fact that the decision-maker’s reasons contained no reference to the evidence in issue; (2) the significance of that evidence. Katzmann, Griffiths and Wigney JJ stated:
The Tribunal is required by s 430 to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a Court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review.[72]
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all.[73] The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight.[74]
See also SZLPH v Minister for Immigration and Border Protection;[75] AVS16 v Minister for Immigration and Border Protection.[76]
[71] [2014] FCAFC 16, [27], [43].
[72]Citing Yusuf, supra (2001) 180 ALR 1; SZMDS, supra (2010) 240 CLR 611; SZJSS, supra (2010) 243 CLR 164and SZGUR.
[73] Citing SZGUR, [31].
[74] Citing MZYTS, [52].
[75] [2018] FCAFC 145, [35]-[36] (Besanko, Gleeson and Burley JJ).
[76] [2018] FCAFC 141, [24]-[26] (White, Wigney and Colvin JJ).
The applicants submitted that two integers of the first applicant’s claim to fear harm were that: (1) her brothers were members of a fundamentalist group who had the capacity to cause her harm; (2) there had been incidents which confirmed her fear of harm, including being chased when she had left her house and in being confronted by a group of six men (and which was said to be the catalyst for her decision to leave Pakistan). The applicants accepted that the first of those integers had been dealt with by the Tribunal but submitted that the second had merely been recorded but not addressed.
The applicants further submitted that the second integer of the claim to fear harm was squarely identified by the Tribunal and had clearly been made by the first applicant in her first formal statement, the whole of which had been set out by the Tribunal in its Reasons at [22]. The applicants complained that while the Tribunal had set out the first applicant’s statement in full, there had been no independent critical consideration of the second integer of her claim.
It was accepted that the Tribunal had addressed the allegation that the first applicant had been confronted by a group of men as she had claimed. In its Reasons at [50], the Tribunal said:
The applicant stated that one occasion she was approached be men who claimed that they had been sent by her brothers to watch her and that they knew what she was doing. The applicant claimed that if she would not stop they would kill her. The Tribunal expressed its surprise that the applicant would be warned in this manner, if the brothers wanted to kill her because of her support of the Shia faith. The Tribunal also question how the applicant could be identified by these men in this manner, as told by her brothers. The applicant stated that her brothers had access to networks of people. The Tribunal expressed significant concern such that they could get people to identify and follow the applicant so far from their home region. The Tribunal also questioned how these men knew she had converted to Shia when her in-laws did not, despite her living with them. The applicant stated that she was told that her brothers could do anything at any time. The Tribunal questioned the genuineness of the claim that she was threatened in Karachi by these men, noting that it had significant concerns with her claim that her brothers had such influence in Karachi.
These reasons indicate recognition that the first applicant’s evidence on the issued being discussed were considered by the Tribunal to be internally inconsistent.
The gravamen of the applicant’s complaint of a failure to consider this integer of her claim was that the Tribunal had not otherwise addressed the claim that she had been chased each time she had left her house. It was then said that, if this integer had been considered and accepted, it would have been more likely that the Tribunal would have accepted the first applicant’s claim to having been confronted by a group of six men rather than to have rejected it.
The Minister correctly observed that the applicants’ written submissions had put it that the Tribunal had not ‘in terms’ dealt with the claim that after moving in with her in-laws in Karachi people had chased the first applicant whenever she had left the home and that this claim was “directly related to the [first] applicant’s expressed fear of harm from fundamentalist groups acting at the direction of her brothers.”
The Minister submitted that the Tribunal had rejected the factual premise upon which this complaint rested; namely, that the first applicant’s brothers could cause her harm via means of intermediaries. The Minister correctly submitted that, where reasons were otherwise comprehensive, the court should not too readily draw an inference that an issue has not been considered and further, that it may be unnecessary for an administrative decision-maker to expressly consider an issue either on the basis that it had been subsumed in a finding of greater generality or because it rested upon a factual premise which had been rejected: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[77] There the Full Court stated:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Full Court’s statement above has been accepted and applied on many occasions.[78]
[77] (2003) 236 FCR 593, [47], (French, Sackville and Hely JJ)
[78]See, for example, Minister for Immigration and Border Protection v SZMTA; CQZ v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, [13], [104].
Upon those principles, the Minister submitted that the Tribunal at [42]-[57] analysed and rejected the first applicant’s claim to fear harm from fundamentalist groups acting at the behest of her brothers. In doing so the Tribunal expressed its significant concern in accepting aspects of the first applicant’s evidence and found that her evidence had been exaggerated. The Tribunal found it difficult to accept that the first applicant’s brothers had the capacity to influence others to harm her and did not accept that her brothers had or would seek to use networks of persons to harm her in Pakistan. The Tribunal had regard to country information in making its assessment of that claim: see in particular, Reasons, [44]-[47], [55], [57].
I agree that the Tribunal was clearly aware that this was claim made by the first applicant. The Tribunal referred to the issue in the manner set out at [99] above. However, in circumstances where the Tribunal had examined and rejected the first applicant’s claims as to the extent of their influence in fundamentalist groups and its Reasons were otherwise comprehensive, it was not required to deal ‘in terms’ with the claim to being chased when she had left the house of her in-laws in Karachi. In my view, to the extent that the Tribunal might have dealt more fully with the issue, the cogency of this evidence was such that it was not required to address it further having regard to the more detailed basis on which it considered and rejected the anterior question of whether the first applicant’s brothers had the level of involvement in fundamentalist groups which she claimed and, by extension the capacity from Lahore to retain and enlist the support of men in Karachi to carry out such a killing. Having rejected the premise on which the claim was made, the necessity to consider the issue further fell away.
Ground 2 is rejected.
Ground 3 – failure to consider integer of claim – living in the West
Ground 3, as set out in the further amended application, reads:
The Tribunal failed to consider an integer of the applicant’s claim, constructively failed to exercise jurisdiction and/or denied the applicant procedural fairness.
1.The applicant claimed to fear harm from her brother’s, or actors under their control, because her husband lives in the West and/or because she has lived in the West for the past six years: [39], [243]. That claim to fear harm because the applicant is a member of a particular social group, being:
a.persons who have lived in the West; and/or
b.persons who have returned from the West.
2. The applicant advanced this as a separate ground on which she feared harm. It constitutes a separate claim, or an integer of a claim.
3.The Tribunal does not consider this integer of the applicant’s case, and thereby erred. By failing to consider the integer of the applicant’s case, the Tribunal also constructively failed to exercise jurisdiction and failed to afford the applicant procedural fairness.
Ground 3 represented a variation on the matters raised by Ground 2 inasmuch as they depended upon the first applicant’s fear of harm from her brothers and their supposed capacity to enlist others to cause her harm but raised an issue whether their motivation to cause such harm was because the first applicant had spent time in the West.
The applicants submitted that the first applicant’s claim to fear harm from her brothers or others under their control on the basis that her brothers did not accept her move to a western country for a period of six years. The first applicant’s claim was said to be that she was a member of a particular social group, being persons who had lived in (and who had returned from) the West and that as this had been advanced as a separate ground on which she feared harm “it constitutes a separate claim, or an integer of a claim” which the Tribunal was thus required to consider.
It was complained that while the Tribunal had identified this claim it had not addressed it. Attention was drawn to the Reasons at [57]-[58] where, it was said, the closest that the Tribunal had gone to addressing this issue was in stating that “The Tribunal does not accept that the applicant’s brothers would travel to Karachi to perpetrate violence against the applicant because . . . she has gone to Australia.” It was submitted that this passing reference to having gone to Australia was an insufficient consideration of this integer. Then it was said that the Tribunal had reached its ultimate conclusion at [58] that having considered the country information and evidence, it did not consider the first applicant faced a real chance of serious harm from her brothers, but that it had done so without making any reference to the fear of harm based upon her having left for a western country.
The Minister posed as an open question whether this suggested issue rose to the level of being an integer of a claim in this case. The Minister observed that this ‘claim’ was only referred to once in the first applicant’s second statement. There was force in that observation.
Upon the principles addressed at [92]-[96], [103] above, I consider that the first applicant grounded her application for a Protection visa upon a claim that she held a well-founded fear of harm[79] by reason of the harm which she believed she would suffer as a result of the disclosure of her conversion from Sunni to Shia Islam. In turn, the most obvious, or clearly articulated, integers of that claim were the fear of harm from her brothers and a corresponding fear of harm from her in-laws. Beneath those integers were a number of evidentiary bases upon which the first applicant sought to establish that those integers of her claim would be made out. At an evidentiary level, for example, the first applicant stated that her brothers were closely involved in fundamentalist organisations. As to this, the Tribunal examined country information which put that evidence in question. She also stated that her brothers had informed her in-laws that they could do to her whatever they wanted. While the distinction between integers and evidence may on occasions be blurred, I would regard these to be matters of evidence. Similarly, I would regard the evidence of Honour Killings as going to prove the integers of her claim to fear harm. By extension, in the way that the first applicant’s evidence was adduced, I regard the claim to fear of harm by reason of having lived in the West as being supportive of the integers identified above. I entertain doubt whether the evidence in the first applicant’s claim that she faced a real threat of harm by reason of being a person who had lived in the West as rising to the level of being an integer of her claim.
[79]And an equivalent claim for complementary protection on the basis that there were substantial grounds for believing that there was a real risk of the first applicant suffering significant harm.
Irrespective of whether the reference to having lived in the West constituted an integer of her claim, the Minister submitted that the Tribunal had addressed the issue adequately. To give context to that submission, attention was drawn to the content of the first applicant’s second statement from which it was plain that the issue of being a person who had travelled to a Western country arose squarely in connection with the alleged shame that was felt by her brothers. The evidence as to having lived in a Western country fell under the heading My fears of returning to Pakistan and were placed in the context of evidence that the first applicant’s brothers would consider that a female converting to Shia Islam as bringing shame upon them and for that reason she would not be safe anywhere in Pakistan.
It may be accepted that, apart from having set out the statement at length, the Reasons gave but passing reference to the implications of the first applicant having lived in the West. Within the Reasons at [54]-[57], the Tribunal had dealt with the treatment which the first applicant said she had received from her brothers in her family home and then with her decision to move to Karachi. The Tribunal at [57] specifically addressed and rejected the claim that the brothers would travel from Lahore to Karachi to perpetrate violence against the first applicant, including because she had travelled to Australia or for reasons of honour. To the extent that the first applicant had lived in Australia, the implications of her having done so may be understood as reinforcing the ill-will which her brothers were said to harbour against her or the shame which they may have felt.
In all the circumstances, the Tribunals failure to deal in any detail with the fact of the first applicant having travelled to the West can fairly be considered to be subsumed in its treatment and rejection of the other evidence and its use of country information relating to her brothers and their apparent involvement in fundamentalist organisations. As stated, the Reasons were otherwise comprehensive in their treatment of the first applicant’s claim to fear harm from her brothers. The claim was not of such cogency that a failure to deal with it more fully meant that the decision was affected by an error which should be characterised as being jurisdictional.
Ground 3 is rejected.
Ground 4 – failure to consider integer of claim – removal of children
Ground 4, as set out in the further amended application, reads:
The Tribunal failed to consider an integer of the applicant’s claim, constructively failed to exercise jurisdiction and/or denied the applicant procedural fairness.
1.During the applicant’s interview with the Tribunal, the applicant alleged that her brother-in-law had threatened to take away her children: see 01.08.20. The treat to separate the applicant from her children constitutes a separate integer of the applicant’s claim, because it is a claim to fear serious harm or significant harm, which, in combination with one or more meaningful subsets of the relevant alleged facts, was capable of leading the tribunal to conclude the applicant had satisfied the criteria for the granting of the visa.
2.The applicant’s allegation that her brother’s family would take away her children is not referred to in the decision. The Tribunal did not consider whether the threat was made, the likelihood that any threat would be carried into effect nor whether, if the threat was carried into effect, the applicant would suffer serious harm or significant harm as a result. The Tribunal did not consider this integer of the applicant’s claim.
In support of Ground 4, the applicants relied upon an affidavit sworn by their solicitor to which had been exhibited a transcript of the first applicant’s evidence at the Tribunal hearing. In the course of that evidence, the first applicant stated as follows:
Is there anything else you want me to take into account or consider?
. . .
Th-the only thing I would like to mention is that, ahh, my kids they get good education and, and they live well, not like me spend life in immigration.
. . .
So the thing is I don’t want to lose them, cause if I, ahh I think if I go back maybe I’ll lose them, they may take my kids aways or they maybe lose me or . . .
Why would they take your kids away?
. . .
So thing is that cause my brother-in-law has threatened, add [inaudible] told my husband that if he doesn’t come back to, ah, come back then we will, take the kids, ahh just bring the kids with you, and come back.
So why didn’t you put this in your written application?
This is what I’, saying [inaudible] err, because of protection, I cant remember all the thing that now are just what in my mind so I just [inaudible]
Is there anything else you want to say on behalf of your husband or your children in relation to their . . .
So the only thing is, the only worry is for me is for my kids so they become ahh, they become good citizens and and and educated.
Because I, I must say I’m concerned about this new claim of yours about your family in-laws because they’re the ones you lived with for 9 months and you practised as a Shia Muslim while living there. I find it strange you’re now saying that they’re being so umm violent or being threatening toward you . . .
The brother in-law is the one who supported you to come to Australia and so forth and now you’re saying there’s such threats from him umm I find that really quite [inaudible]
. . .
So the thing is that, [inaudible] the violence has been happening and the thing is that my family doesn’t like the Shia’s
Your, sorry your two brothers don’t like the Shia’s
Because your, your parents
He’s not happy, but ahh he’s not that extremist, my father
The Minister accepted that in the course of that interview the first applicant’s evidence above was that her brothers had threatened to take her children away.
Again, it was posed as an open question whether the evidence rose to the level of a free standing integer of the first applicant’s claim to fear harm by reason of her religious conversion. Further, it was said that the ‘claim’ was made belatedly in the course of the hearing and without any evidence beyond that which was set out in the transcript reproduced above.
It was objected that the tender of an extract of the transcript of the hearing presented an incomplete picture of the manner in which the matter had proceeded before the Tribunal. The objection was resolved on the basis that an audio recording of the whole of the transcript was tendered.
The Minister was correct to submit that the evidence given during that interview was the only evidence of a threat – again from her brothers – that the children would be taken away. Analysis of the course of that evidence is instructive. The evidence was only given in the context of an enquiry by the Tribunal whether there was anything further which the first applicant wanted to add. Her immediate response was that she wanted her children to receive a good education. And having said that, the first applicant then made a qualified statement that “if I go back maybe I’ll lose them, they may take my kids away or they may lose me.” The first applicant was asked to explain why this claim had not been made in the original application. She ultimately reiterated that she wanted her children to obtain a good education.
Upon the basis of that evidence, the first applicant did not clearly articulate any claim that she had actually received a threat that her children would be taken away. The highest that this evidence rose was to a fear that ‘maybe’ this would occur.
The claim to fear harm based on the alleged or perceived threat of the two children being taken away had not been raised by the original claim or the first applicant’s statement of claim or, as importantly, in the statutory declaration which had been made shortly before the application for a merits review by the Tribunal.
I consider that the above evidence did not rise to the level of a clearly articulated claim.
Nonetheless, it was put that the Tribunal had been obliged to deal with the claim once it had been put.
The applicants submitted that the claim to fear harm on the basis that the first applicant’s brothers had threatened to take away her children had not been dealt with by the Tribunal. It was said that the closest the Tribunal had come to addressing this claim was in the Reasons at [111]-[114] where the Tribunal made general observations in rejection of the claims to protection made on behalf of the children.
The Minister pointed to the Reasons at [112] where the Tribunal noted that only the first applicant had provided any evidence in relation to the issue. In particular, the second applicant had not given evidence that he feared that he or the children would suffer serious harm because of their association with the first applicant. Nor, therefore, did he give any evidence supporting a claim to fear or the actual making of threats that the children would be taken away.
If there was an integer of the claim to fear harm on the basis that the children might be taken away, it rested on the first applicant’s evidence that she wanted a good education for her children and that when asked if she had anything to add volunteered that maybe they would be taken away. Evidence of that kind was lacking in cogency and a failure to have dealt with it more fully would not support a conclusion of jurisdictional error. Otherwise, I conclude that the Tribunal’s consideration of this issue can fairly be considered to be subsumed in its treatment and rejection of the claim to fear harm from the first applicant’s brothers. As noted above at [11], the second applicant’s claim for protection did not advance a distinct claim to fear harm. The evidence adduced by the first applicant that ‘maybe’ her children would by taken by her brothers or others was so lacking in cogency that the Tribunal was not required to address it distinctly.
Ground 4 is rejected.
Conclusion
For the foregoing reasons, the further amended application should be dismissed.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 28 February 2019
[37] [2010] HCA 16; (2010) 240 CLR 611.
[38] [2015] FCA 1089; (2015) 233 FCR 451 at [22].
[42] [2016] FCA 516 .
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