DXV17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 844
Federal Circuit and Family Court of Australia
(DIVISION 2)
DXV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 844
File number: MLG 1903 of 2017 Judgment of: JUDGE FORBES Date of judgment: 28 October 2022 Catchwords: MIGRATION – Protection – Safe Haven Enterprise Visa - review by Immigration Assessment Authority – whether claims give rise to well-founded fear of persecution – whether IAA required to consider claims cumulatively – whether IAA failed to get or consider new information – relevance of representative not providing document – whether IAA failed to consider possibility of risk of harm notwithstanding non-acceptance of claims – whether IAA in any real doubt about findings – whether factual findings illogical or irrational – whether risks associated with return travel properly considered – reasonably foreseeable future Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Act 1958 (Cth), s 57, 58, 65, 473, 473DC, 473DD
Cases cited: AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
CED17 v Minister for Immigration and Border Protection [2018] FCA 877
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
DLC17 v Minister for Immigration and Border Protection [2018] FCA 1361
DPI17 v Minister for Home Affairs (2019) 269 FCR 134
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Home Affairs v DUA16 [2020] HCA 46
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (2020) 93 FCR 220
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Thanh Phat Ma v Billings (1996) 71 FCR 431
Division: Division 2 General Federal Law Number of paragraphs: 173 Date of hearing: 20 December 2021 Place: Melbourne Counsel for the Applicant: Mr Murphy Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr Barrington Solicitor for the Respondent: The Australian Government Solicitor ORDERS
MLG 1903 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
28 october 2022
THE COURT ORDERS THAT:
1.The application for judicial review filed on 1 September 2017 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed at $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA AT MELBOURNE
MLG 1903 of 2017
DXV17
ApplicantAnd
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second RespondentREASONS FOR JUDGMENT
TABLE OF CONTENTS
Orders
Introduction
Background
The Delegate’s Decision
Immigration Assessment Authority
Authority’s decision on review
Application for judicial review
Final Hearing
Ground One
Applicant’s Submissions
Minister’s SubmissionsConsideration
Ground Six
Applicant’s Submissions
Minister’s Submissions
Consideration
Ground Seven
Applicant’s Submissions
Minister’s SubmissionsConsideration
Ground Eight
Applicant’s Submissions
Minister’s SubmissionsConsideration
Ground Nine
Applicant’s Submissions
Minister’s SubmissionsConsideration
Disposition
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
This proceeding concerns an application seeking judicial review of a decision made by the Immigration Assessment Authority (IAA) dated 4 August 2017. The decision of the IAA affirmed a decision of the Minister’s delegate not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The following background is derived from the detailed outlines of submission filed by each of the parties prior to the Hearing. Unless otherwise stated, the following matters are common ground.
The applicant claims to be a Shia Hazara from Afghanistan.
The applicant first arrived to Australia at Christmas Island on 14 December 2012. The applicant was 19 years of age when he arrived. He took part in an entry interview on 28 December 2012.
On 29 March 2016 the Department of Immigration and Border Protection (the Department) invited the applicant to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV).[1]
[1] Court Book (“CB”), p 30
On 24 August 2016, the applicant applied for the SHEV. In support of his application, the applicant provided the Department with identification documents and a statutory declaration dated 22 August 2016. He was assisted by a migration agent during this process.
In his statutory declaration, the applicant informed the Department that he was a Shia Muslim born in Wakil Khiel Khudaidad in the Jaghori District of the Ghazni Province.[2] The applicant claimed that his parents were both deceased and that he had two brothers, each of whom had been granted refugee or permanent protection in Europe.
[2] CB, p 72
The applicant said that he had lived with his uncle and family in Afghanistan and that he had attended school until the end of year 6. After selling a shop and land owned by his deceased parents, he used some of the proceeds and money given to him by his uncle to buy a car which he used as a taxi. For about 3 years he drove the taxi around Ghazni province, including between Jaghori and Ghazni city when required.
The applicant said that Shia Muslims were often targeted and persecuted by the Taliban. He claims that the Taliban would often stop his taxi and proceed to question him and passengers or search the car.
The applicant claimed that on one occasion, a prominent “Taliban commander” by the name of Mullah Kamran intercepted him whilst he was driving his taxi in Qarabagh and a Taleb placed a parcel inside the boot of the applicant’s car. The applicant was allegedly told the parcel contained poison and he claimed to have been directed by Mullah Kamran to place the poison in one of the Jaghori school wells within three days. The Taliban commander warned the applicant that he would be killed if he disobeyed this order. The applicant did not comply with the Taliban’s ultimatum and claims that he buried the parcel.
After this threat, the applicant fled Afghanistan by road to Pakistan, by air to Indonesia and then by boat to Australia.
After his arrival to Australia, the applicant said he learned through an uncle that members of the Taliban were enquiring about him and his whereabouts by showing other taxi drivers his photograph. The applicant claims to fear that he is “still sought by the Taliban” and therefore cannot relocate back to Afghanistan.
On 26 October 2016, the Minister invited the applicant to attend an interview with the delegate.[3] The applicant was present for the purposes of this interview.
[3] CB, p 91
After the interview was conducted, the Minister invited the applicant’s representative to provide post-interview submissions by 30 November 2016. The specific requests made to the applicant were twofold:
‘Address in your post-interview submission in relation to [the applicant] any reasons why it would not be reasonable, in the sense of practical, for [the applicant] to relocate to Kabul’; and
‘Respond to country information (below) that Commander/Mullah Kamran, associated with the Hakkani Network, was killed in Quetta Pakistan in November 2012. There are also reports that a Mullah Kamran, the Taleban shadow governor for Kandahar, was killed in 2008’.[4]
[4] CB, p 105-106
On 24 November 2016, the applicant appointed a solicitor from Carina Ford Immigration Lawyers.[5] The applicant’s representative sought and was granted an extension of time until 16 December 2016 to respond to the Department’s request for post-interview submissions.
[5] CB, p 107 - 109
On 15 December 2016, in response to the request for submissions, the applicant’s representative queried whether the requested information “falls within the definition of relevant information that is required to be put to the Applicant in accordance with the requirements of ss. 57 and 58.”[6] The applicant’s representative put the Department on notice that if it was inclined to adversely rely on the information provided, it should issue a request in the form of a s 57 notice and invite the applicant to comment upon it in the format required by the legislation.
[6] CB, p 110
On 23 December 2016 a second statutory declaration and further supporting documents were provided to the Delegate on behalf of the applicant. In an email to the Department the applicant’s representative asserts that in light of the supplementary information provided by the applicant, if the Minister was of the view that it cannot make a positive finding, the applicant should be afforded a second opportunity to be interviewed in order to address the new material.[7]
[7] CB, p 120
In his further statutory declaration, the applicant revealed that he had previously misinformed the Department.[8] He admitted, for example, that whilst he had previously informed the Department that his mother and father were dead, they were in fact alive and living in Jaghori. The applicant also disclosed for the first time that he had other siblings, including a sister who lived in Kabul with her husband and two children.
[8] CB, p 150
The applicant also disclosed information which pertained to his father who worked for the non‑government organisation CARE as an office cleaner/helper for many years. The applicant said his father travelled all over Jaghori as well as to Ghazni for work but ceased his employment with CARE in 2013. The applicant claims that although his father never had problems himself whilst working for CARE, “he would have been killed” by the Taliban if he continued to work for the organisation.[9]
[9] CB, p 154
Correcting his previous evidence the applicant also revealed that when he was relatively young he had been sent by his father to live with an aunt in Iran. His father considered it to be too unsafe for him to reside in Afghanistan.[10] The applicant remained there for 6 years before returning to Wakil Khiel at the end of 2011. After his return to Afghanistan the applicant worked with his uncle in a shop for a short while, before buying a taxi and working as a taxi driver until he fled to Australia.
[10] CB, p 155
In response to the Department’s invitation to submit information relevant to Mullah Kamran and whether the commander was alive at the time the applicant claims to have encountered him, the applicant’s representative provided an abundance of country information. The material provided by the representative extended beyond the Department’s specific request and addressed targeted violence by the Taliban generally and the deteriorating situation in Kabul, and Afghanistan more broadly. The representative also relied on country information relevant to individuals of Hazara ethnicity and returned asylum seekers from the West.
The applicant claims to fear harm on several bases. He fears retribution from the Taliban by virtue of failing to follow their ultimatum to poison a school well and he fears harm by reason of his Hazara ethnicity and his Shia religious beliefs. He also fears harm because of his imputed adoption of pro-government and pro-Western values and because of his father’s work for an international organisation. The applicant claimed to fear not only the Taliban, but also DAESH and other affiliated groups who uphold similar anti-Government and extremist ideologies within Afghanistan.
The Delegates’s Decision
On 9 January 2017, a delegate of the Minister refused to grant the applicant’s visa.[11]
[11] CB, p 167 - 186
In its decision record, the delegate was satisfied that the applicant’s identity is consistent with that as claimed, specifically that he is a Shia Muslim of Hazara ethnicity. In relation to the applicant’s credibility pertaining to his father working for CARE, the delegate concluded that this claim should be accepted and was satisfied that the applicant’s father worked for the organisation in the role and period as claimed.[12]
[12] CB, p 172
Given that the applicant returned from Iran towards the end of 2011, and fled Afghanistan in June 2012, the delegate found that the applicant could have only driven a taxi for a period of about six months, contrary to the applicant’s original contention that he had been a taxi driver for some three or four years. Nevertheless, the delegate accepted that “the applicant drove a taxi for the six-month period claimed, along dangerous roads upon which he was occasionally stopped, questioned and searched by the Taliban” and that he was fearful in undertaking this role.[13]
[13] Ibid
The delegate Minister did not accept the applicant’s assertion that he had no option but to continue being a taxi driver in order to provide for his family. The delegate found there to be considerable evidence to the contrary, including that the applicant’s family had funds readily available, in the sum of $17,000 USD to cover his trip to Australia.[14] The delegate found that the applicant’s family was in a good economic position at the time.
[14] CB, p 173
The delegate did not accept that the applicant left Jaghori because he felt threatened by Mullah Kamran, nor did the delegate accept that Mullah Kamran had instructed the applicant to poison a well in a Jaghori school. The claim was rejected for a number of different factors including “the applicant’s doubtful credibility, his other motivations for leaving a job he was fearful of, his relative means, the inconsistencies in the details provided, and the implausibility of the claim in light of country information”.[15]
[15] CB, p 175
With respect to the refugee criterion, the delegate considered the applicant’s claimed grounds of fear and ultimately found his chances of harm to be remote. In its assessment, the delegate considered country information pertaining to Jaghori’s security situation, evidence of Hazara returnees from the West, evidence regarding failed asylum seekers, safety of access to Jaghori and any potential future volatility. In totality, and considered cumulatively, the delegate concluded that the applicant’s claimed grounds do not “amount to a real chance that the applicant will face persecution if he is returned to Afghanistan”.[16]
[16] CB, p 184
The Minister made its finding in relation to the applicant’s complementary protection criterion for the same reasons as articulated in the delegate’s refugee criterion.
Immigration Assessment Authority (IAA)
On 12 January 2017 the IAA sent the applicant a letter informing him that the matter had been referred to the IAA for review.[17]
[17] CB, p 187
On 2 February 2017 the applicant’s representative provided the IAA with a written submission and an explanation for new information. In particular, the applicant submitted that the delegate had failed to properly consider his inability to safely relocate to Jaghori.
On 20 February 2017 the IAA invited the applicant to provide further information in writing by 6 March 2017. Specifically, the applicant was invited to comment on certain adverse country information relating to the infrequency of future attacks upon Shia Muslims and to the safety of internal relocation to the city of Mazar e Sharif.[18]
[18] CB, p 225 - 228
On 6 March 2017 the applicant’s solicitor responded to the invitation and put forward country information pertaining to the applicant’s chance of future harm posed by the Islamic State as well as the Taliban. The applicant submitted that he still faces a risk of future harm as a Shia Muslim in Afghanistan.[19] With respect to the delegate’s suggestion that the applicant could relocate to Mazar e Sharif as a ‘safe alternative’, the representative presented country information which challenged that proposition, arguing that the applicant would still be at risk if he returned to Mazar e Sharif.[20]
[19] CB, p 231 - 238
[20] Ibid
On 21 March 2017, 15 days after the IAA’s nominated deadline to provide comment, the applicant’s representative provided yet further country information which related to recent attacks for which ISIS claimed responsibility. The applicant submitted that the IAA ought to take the information into account by virtue of s 473DD of the Act[21] because the information had only been published after the delegate’s decision and there were exceptional circumstances (relating to the fluidity of the security situation in Afghanistan and his ability to return to Kabul).
[21] CB, p 239 - 247
Authority’s decision on review
On 4 August 2017, the IAA affirmed the delegate’s decision.[22]
[22] CB, p 249 - 268
The IAA did not consider that the applicant would face a real chance of serious or significant harm by reason of his status as a Shia Hazara returnee/asylum seeker from the West[23], imputed pro-government profile arising from his father’s former employment[24], his former employment as a taxi driver[25] or possible future employment as a taxi driver.[26]
[23] CB, p 261 [23]
[24] CB, p 258 [16]
[25] CB, p 260 [21]
[26] CB, p 263 [30]
Based on country information, the IAA was not satisfied that the applicant had a well-founded claim to fear harm in Jaghori by reason of being a western returnee or a Shia Muslim.[27] The information relied on by the IAA was that “there have been a low number of security incidents and insurgent activity within Hazara dominated Jaghori”.[28] In its entirety, there was no recent evidence or country information which pointed towards Shia Hazaras or returnees being targeted in Jaghori.[29]
[27] CB, p 261
[28] Ibid
[29] Ibid
Further, the IAA found that although there was a Taliban presence in Jaghori and Ghazni at the time, country information did not indicate that schools or educational institutions were being targeted.[30] Moreover, since May 2012, when the schools in Ghazni reopened, also being the time that the applicant was allegedly asked to poison a well, there were no reported attacks on schools. Whilst the IAA accepted that the applicant was stopped by the Taliban on a number of occasions, the IAA did not accept that the Taliban had asked him to poison a school well, or that the Taliban would be interested in persecuting the applicant for disobeying their orders upon his return.[31]
[30] CB, p 260
[31] Ibid
The Authority accepted that on the occasions where the applicant’s route had been intercepted, the Taliban may have paid attention to the applicant’s details. However, the IAA observed that the applicant was never harmed or threatened during such occurrences which would indicate that he was not of interest to the Taliban.[32] Further, given that the applicant had been away from Jaghori since 2012, the IAA found that the passage of time would mitigate any real chance of harm once he returns.
[32] Ibid
The IAA determined that the applicant’s fear of being targeted by the Taliban by reason of his father’s former employment was not well-founded. The IAA accepted that the applicant’s father worked for CARE for over 12 years, but noted that his father never faced any problems with the Taliban whilst he was employed for the organisation.[33] In reaching its conclusion, the IAA considered country information relating to the “Taliban’s strategy in recent years with their activities becoming more focused on targeting employees of the Afghan government and foreign troops rather than NGO staff”.[34] As a result of the Taliban’s changed attitude towards NGO’s, in conjunction with the fact that the applicant’s father and his immediate family were never harmed or threatened by the Taliban, the IAA concluded that the applicant would not be at risk of harm upon his return because of his father’s former employment.
[33] CB, p 258
[34] CB, p 258
The IAA also considered the applicant’s employment prospects, and found that he could return to work as a taxi driver in order to subsist, or he could gain employment in other areas relevant to his skillset, such as in stone cutting or tiling.[35]
[35] CB, p 263
On the refugee criterion, the IAA ultimately held that the applicant could reside in Jaghori without fear of harm and that he would be able to make a sufficient living as a taxi driver to subsist.
On the complementary protection criterion, the IAA referred to its findings on the refugee criterion[36] and did not consider it necessary to deliberate upon any potential relocation to Kabul or Mazar e Sharif.
[36] CB, p 264 at [36]
Application for judicial review
On 1 September 2017, the applicant applied to this Court for judicial review of the IAA’s decision and identified five grounds for review. The applicant also filed an affidavit on 1 September 2017 in support of his application for review, which annexed a copy of the IAA’s decision and reasons.
On 15 May 2018 a Registrar of this court made orders to prepare the matter for final hearing including that the applicant file and serve any amended application, court book materials and written submissions. The Minister was directed to file and serve a Court Book in electronic and hard copy format and was afforded an opportunity to file and serve written submissions.
On 29 November 2021, shortly before the hearing, the applicant filed an amended application. The amended application for review contained five grounds, as follows (particulars omitted):
1. The second respondent failed to consider the applicant's claims by failing to consider the integers of the applicant's claims cumulatively.
[Former grounds 2-5 abandoned]
6. The Immigration Assessment Authority (IAA) erred jurisdictionally by failing to consider, or unreasonably failing to exercise, the power in s 473DC to get ‘new information’, namely the expert opinion of Professor William Maley.
7. The IAA misunderstood, or failed to complete, the statutory task required of it in that it did not consider the consequences that flowed from the possibility, which was not dismissed by the IAA, that:
(a) the Applicant had been ordered by the Taliban to poison school water; and/or
(b) the Taliban had been asking taxi drivers for the Applicant by name since his departure from Afghanistan.
8. In the alternative to ground 7, if the IAA did positively find that the Applicant had not been ordered by the Taliban to poison school water, that was an illogical or irrational finding on a critical question of fact.
9. As to the critical question of the safety or otherwise of the Applicant’s means of return to Jaghori, the IAA:
(a) asked itself the wrong question; and/or
(b) made an illogical or irrational finding of fact.
An outline of submissions and an affidavit were also filed by the applicant on 29 November 2021. An affidavit of the applicant’s solicitor attached a four page report by Professor William Maley dated 16 March 2017 which was titled ‘On the Return of Hazaras to Afghanistan’.
The Minister filed a court book on 30 May 2018 and an outline of submissions on 13 December 2021 in accordance with Court orders.
FINAL HEARING
The matter came before me for hearing on 20 December 2021, via Microsoft Teams. Mr Murphy of counsel appeared for the applicant and the Minister was represented by Mr Barrington of counsel.
The affidavit of the applicant’s solicitor dated 29 November 2021 which attached the report of Professor Maley was not opposed by the Minister and has been received into evidence. Counsel for the applicant accepted that the Court should limit the use of the affidavit only to the issue of materiality which related to ground 6.
Ground 1
Ground one asserts a failure by the Authority to consider the applicant’s claims for protection cumulatively.
The Minister accepts that the applicant’s claims were not considered cumulatively, but submits that in the circumstances of this case it was not required to do so.
Applicant’s submissions
The applicant submits that where, as here, an applicant for a protection visa claims to fear harm on a number of bases there will be error on the part of the decision-maker if it considers the grounds for a well-founded fear of persecution individually, but not cumulatively. In the present case the applicant contends that while the Authority turned its mind to each of the applicant’s individual claims, its reasons (unlike the delegate’s reasons[37]) did not evince a cumulative consideration of them.
[37] CB, p 184
Counsel for the applicant contends that the claims were put cumulatively, including as to complementary protection. However, it is submitted that the text and structure of the Authority’s reasons disclose only a discrete consideration and rejection of each claim. For example, the applicant says that the Authority’s approach is revealed by the way it included a separate section for the assessment of each claim but no final section containing a cumulative assessment.
The applicant submits that it was incumbent on the Authority to consider each of the claims cumulatively because each claim incrementally increased the applicant’s risk of harm. In oral submissions, Mr Murphy for the applicant submitted that the law directs attention to consideration of the factual claims, each of which might not individually give rise to a risk of harm but, when taken as a whole, might do so.
Put another way, the applicant submits that the decision-maker is required to look to the factual substratum and integers of each individual claim to determine whether they accrete to an overall risk of harm. The applicant contends that there are a number of matters which when compounded evince an incrementally increased risk of harm. In this respect, the applicant points to the Authority’s findings that the applicant’s father worked with an international organisation for 12 years, that people associated with international organisations had been targeted by the Taliban in the past, that the applicant had been stopped by the Taliban on a number of occasions while working as a taxi driver, that the Taliban may have noted his details, that he was likely to work again as a taxi driver if returned to Afghanistan and that there had been kidnapping and killing of Shia Hazaras on the roads in and around Ghazni.
Is also submitted that the Authority’s failure to consider the applicant’s claims cumulatively was material error because if those claims had been considered in that manner there is a realistic possibility that the Authority might have reached a different decision.[38]
[38] SZMTA (2019) 264 CLR 421; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Minister’s submissions
It is put against the applicant that the basis of Ground 1 is contrary to authority binding on this Court. As stated above, while the Minister concedes that the Authority did not consider the applicant’s claims cumulatively, it submits that in the circumstances of this case the Authority was not required to do so.
In Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 the Full Court (Gilmour, Markovic and O’Callaghan JJ) stated at [34] that:
“It seems to us that as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise to a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result….”[39]
[39] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
In DDK16 the Full Court noted that counsel for the visa applicant ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country.
The Minister submits that this is the very reason which determines ground one against the applicant. Here, as is effectively conceded by the applicant, the Authority considered and dismissed each of the individual claims and made findings that they would not lead to a risk of persecution if the applicant were to return to Afghanistan.
As to the applicant’s submission that the Authority should have directed itself to the factual substratum and integers of each claim in order to assess incremental risk, the Minister submits that approach is untenable and was specifically rejected by Justice Steward in CED17 v Minister for Immigration and Border Protection [2018] FCA 877.
In CED17 the visa applicant argued that even though the Authority was not satisfied that each individual claim did not give rise to a real chance of harm, the Authority was required to consider “the specific findings which underlay these conclusions in a cumulative way”. That submission did not find favour with the court. His Honour Justice Steward found that what had to be considered was the “claims or bases” for establishing the existence of a well-founded fear of persecution, not the “individual specific findings about historical events”.[40]
[40] CED17 v Minister for Immigration and Border Protection [2018] FCA 877 at [24]-[25]
Consideration
A failure to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ can amount to a constructive failure to exercise jurisdiction[41].
[41] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].
The fast track review process undertaken by the Authority is limited in scope, as discussed in relation to ground 6 below. The obligation of the Authority is to review a decision referred to it by the Minister[42], normally on the papers without an oral hearing. The Authority is required to direct itself to each of the claims advanced by the applicant on the basis of the material or evidence before it[43]. The Authority is not required to consider a case that is not expressly made or an unarticulated claim that does not arise clearly on the materials before it[44].
[42] s 473CC
[43] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2 ) [2004] FCAFC 263 at [58]
[44] NABE (No 2) at [61]
Where multiple claims for protection are made it may be possible for some or all of them in combination to incrementally increase the applicants’ fear of persecution. In an appropriate case, where the evidence squarely demands it or it is apparent on the face of the materials, the Authority may consider it appropriate to cumulatively consider its findings in relation to each of the applicant’s claims as part of the process of determining whether there is a well-founded fear of persecution.
Although the delegate undertook a cumulative assessment of the applicant’s claims, it does not follow that the Authority was required to approach the review in the same manner. The IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied[45].
[45] Plaintiff M174 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]
In the present case the applicant was represented throughout and claims were made and advanced in support of his asserted fear of persecution. The Authority understood each of the claims made and its task of review. As the decision record reveals, each of the claims raised by the applicant was considered comprehensively by the Authority. It rejected each of the individual claims and made findings that they would not lead to a risk of persecution if the applicant were to return to Afghanistan.
As the Full Court stated in DDK16, as a matter of inexorable logic where each of an applicant’s claims have been considered and rejected, no amount of cumulative consideration is capable of producing a different result.
Although each claim and its integers must be properly considered in the review process, there is no obligation for the Authority to forensically disassemble each of the individual claims into a minutiae of historical events and incidents with a view to then reassembling any facts which have not been expressly rejected to assess whether some combination of them might accrete to an increased risk of harm. That approach was rejected by Steward J in CED17. I would add that such an approach would also be at odds with the limited review undertaken by the Authority under Part 7AA.
Having regard to the above, I do not find Ground 1 to be made out. By reason of the Authority’s rejection or non-satisfaction of each of the applicant’s claims as a basis for the existence of a well-founded fear of persecution, the Authority was not required to undertake a cumulative analysis where it was not capable of producing a different result. The Authority did not fail to perform its duty to conduct a review and there is no jurisdictional error.
Ground 6
By this ground the applicant contends that the Authority fell into jurisdictional error by failing to consider, or unreasonably failing to exercise, its discretion under s 473DC to get “new information”, namely the expert opinion of Professor William Maley dated 16 March 2017.
Applicant’s submissions
The applicant submits that the existence of this expert opinion was made known to the Authority and referred to in the applicant’s written submissions in support of the visa application, but the opinion itself was apparently unintentionally not provided to the delegate or the Authority by the applicant’s representative.
The applicant submits that the Maley report was referred to and parts of its content paraphrased in the body of the applicant’s submission dated 23 December 2016.[46] The applicant contends that the information contained in the Maley report was centrally relevant to the Authority’s decision-making, in particular Professor Maley’s projections about the future situation in Afghanistan which ran contrary to the Authority’s assumption of relative stability. It is submitted that the Maley opinion spoke to an “extremely fluid” situation in Afghanistan which, if it had been taken into account, might have caused the Authority to reach a different decision on the review.
[46] CB, p 129 [39] and footnote 11
Section 473DC(1) deals with the Authority getting ‘new information’ and relevantly provides that the Authority may get any documents or information that was not before the delegate when the delegate made the decision under s 65, and that the Authority considers may be relevant. Section 473DC(2) makes clear that the Authority does not have a duty to get, request or accept, any new information, whether requested to do so by the applicant or in any other circumstances. However, by section 473DC(3) the Authority may invite a person, orally or in writing, to provide further information.
The applicant submits that the discretion in section 473DC must be exercised reasonably[47] and that in certain circumstances a failure to obtain further information may be a transgression of the reasonableness condition which is implied into both the power to get new information and the duty to conduct a review.
[47] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 [21]
In the context of the current application, the applicant submits that the power to get new information was considered by the Authority at some length and noted in its reasons[48], albeit not in respect of the Maley opinion. The Authority did exercise power to admit new information in relation to some material and not in relation to others. The applicant contends that the potential exercise of the power in relation to the Maley report was either overlooked or not considered at all, an inference which he says is reinforced by the fact that the Maley report was not mentioned in the Authority’s decision. Either way it is said that the failure to consider exercising the power to get the Maley opinion was material because if the power had been considered it might realistically have been exercised, which would then have resulted in the Authority getting the Maley report, considering it under s 473DD(a) and possibly reaching a different decision on the review. The essence of this submission is that the Authority simply glossed over the review material, including the new information, and failed to get what should have been obvious to it as important material necessary to make the correct decision.
[48] Paragraphs [5]-[7] of the Authority’s reasons, CB p 254
In his oral submissions, Counsel for the applicant identified a number of occasions where the Maley Report featured to some degree in the applicant’s written submission dated 23 December 2016 and in the response to invitation to comment dated 6 March 2017. The report was relied upon multiple times, including extracts, not just footnotes. It was submitted that it should have been obvious from the applicant’s submissions that the Maley opinion was at least 3 pages in length and that it was of some substance. Counsel contends that it should also have been obvious to the Authority that the information was recent and specific and that obtaining the opinion from the applicant would have required little more than an email to him or his representative.
The alternative submission put on this ground is that if the Authority did consider the power to get the Maley opinion but decided not to exercise it, it acted in a legally unreasonable manner. In support of this submission, the applicant submits that the exercise of discretion not to get the Maley report (if such discretion were exercised in that manner) was unreasonable having regard to the following matters:
(a)the information was obviously from a reputable source;
(b)the information was recent and specific;
(c)getting the information would not have delayed the Authority as it had already requested other information in writing from the applicant;
(d)it should have been apparent to the Authority that a failure to provide the information by the applicant’s representatives was an error having regard to the way the report had been cited in submissions; and
(e)the information contained within the report was centrally relevant to the Authority’s reasoning, in particular about the future situation in Afghanistan.
The applicant submits that if the unreasonableness is conceptualised as unreasonableness in the duty to conduct the review than there is no requirement to show materiality. Alternatively, if the unreasonableness is conceptualised as unreasonableness in the non-exercise of power, the failure should be regarded as material because, had it been exercised, the Authority might have considered the Maley opinion and it might have reached a different decision on the review.
Minister’s submissions
Unsurprisingly, the Minister points to section 473DC(2) and submits it is clear that the Authority does not have a duty to get new information, whether requested to do so by the applicant or in any other circumstances. Furthermore, section 473DD sets out limitations on the Authority considering “new information”, including that it must not do so unless it is satisfied there are “exceptional circumstances to justify considering the new information”. The Minister also submits that with respect to such procedural powers, the authority has no obligation to provide reasons for its determination as to whether or not to exercise its discretionary power.[49]
[49] BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [40]
The Minister submits in essence that the applicant’s ground is based on a flawed premise – namely that the Authority overlooked the Maley opinion or did not consider it at all. The Minister submits that the Court should not conclude that relevant factors were ignored simply by pointing out that they were not mentioned by the Authority. Moreover, no inference should be drawn that the Authority did not consider exercising its power to get the Maley report.
The Minister submits that it is equally open to infer that the Authority did consider whether it should exercise the discretion to get the Maley opinion, but declined to do so having regard to the fact that:
(a)the applicant had referred to the Maley report (both by paraphrasing and quoting relevant passages from it) in 3 separate submissions, but did not, on any occasion, separately provide a copy of the opinion; and
(b)in each of the applicant’s submissions, the Maley report was but one of a very large number of items or extracts of country information which also had not been separately provided to the Authority.
The Minister submits that in those circumstances it was open to the Authority to conclude that the non-provision of the report by the applicant’s representative was deliberate. That is, in the relevant circumstances it could not have been apparent to the Authority that the applicant’s representative intended to provide a copy of the report but had inadvertently failed to do so.
The Minister submits in any event that if the Authority failed to consider exercising its power under s 473DC to get the Maley report, that failure was not legally unreasonable. Having regard to the relevant facts and matters falling for consideration in the exercise of the particular statutory power[50], a conclusion of unreasonableness should not be drawn because:
(a)there was no reason for the Authority to consider that there had been an oversight by the applicant’s representative in not providing the Maley opinion;
(b)there was no request by the applicant for the Authority to get and consider the Maley opinion or to consider it beyond the passages referred to in the submissions; and
(c)save for the extracts from the report cited in the applicant’s submissions and the title of the report being “On the Return of Hazaras to Afghanistan” and without any other information about the content of the opinion, the Authority could not reasonably assess how specific or relevant the balance of the opinion would be to its task on review.
[50] Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at [26]
The Minister distinguishes the present case from DPI17 v Minister for Home Affairs[51] and Minister for Home Affairs v DUA16[52]. Here the Authority did not make a different finding on demeanour to the delegate and the Authority was not aware and could not have known that the applicant had intended to provide the Maley opinion but failed to do so. It is submitted that all that getting the Maley opinion would have done is to add one more item of country information to the abundance of material already before the Authority. For all the above reasons, the Minister submits that the Authority’s failure to exercise its discretion to get the Maley opinion was not legally unreasonable.
[51] (2019) 269 FCR 134
[52] [2020] HCA 46
Consideration
The various powers conferred upon the IAA by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness[53].
[53] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
As to legal unreasonableness in the context of section 473DC the applicant appropriately drew the Court’s attention to the decision of the High Court in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 where at [21] the plurality said:
“Whether or not the decision of the authority was reached in breach of the reasonableness condition implied into its procedural duty and powers would turn, on either analysis, on whether the decision-making course in fact adopted by the Authority in the circumstances known to it was open to a reasonable member of the Authority cognisant of the statutory obligation of the Authority ordinarily to conduct its reviews without accepting or requesting new information or interviewing the referred applicant, cognisant of its powers to get new information in an interview with the referred applicant and to consider that information, and mindful of the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both “efficient” and “quick”.[54]
[54] DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 at [21]
While there is little room for doubt that the power in s 473DC must be exercised reasonably[55], reasonableness is invariably fact dependent and requires evaluation of the evidence[56]. Moreover, reasonableness is shaped by statutory context, a context which in my opinion weighs against the applicant in relation to this ground. Analysis of legal unreasonableness in a case like this is not through a broad “natural justice lens”.[57]
[55] Plaintiff M174 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21] (Gageler, Keane and Nettle JJ)
[56] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [84] (Nettle and Gordon JJ)
[57] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 [69],[72] (Reeves, Robertson and Rangiah JJ)
While section 473DC(1) confers a discretion upon the Authority to get any documents or information that was not before the delegate when the delegate made the decision and that the Authority considers may be relevant, sub-section (2) makes plain that the Authority does not have a duty to do so, whether requested to do so by the applicant or in any other circumstances. The Authority is also constrained from considering new information unless it is satisfied that there are “exceptional circumstances to justify considering the new information”.
The absence of a duty to seek out “new information” (s 473(2)), the targeted discretion to get it in certain circumstances (s 473DC(1), (3)) and the tight constraint on the use of new information save for exceptional circumstances (s 473DD) are consistent with the statutory obligation for the Authority to ordinarily conduct its review without accepting or requesting new information or interviewing the applicant. It is also consistent with the statutory exhortation to the Authority to pursue the objective of providing a mechanism of limited review that is both “efficient” and “quick”[58].
[58] DVO16 v Minister for Immigration and Border Protection [2021] HCA 12
The decision record at [5]-[7] reveals that the power to get new information was considered by the Authority. The applicant is correct to observe that the Authority did not expressly deal with that power in respect of the Maley opinion, but I agree with the Minister that no inference should be drawn that the Authority completely overlooked Maley or did not in fact turn its mind to getting the opinion.
Implicit in the applicant’s argument under Ground 6 is a broad submission that the Maley opinion was so self-evidently important that it should have been blindingly obvious to the Authority that the applicant’s representative had inadvertently not provided it and/or that the Authority needed to consider it in full before being able to properly review the delegate’s decision. Although it is understandable with the benefit of hindsight to now see that the Maley opinion accurately forecasted ongoing instability in Afghanistan, at the time of the review and in the context of the review being undertaken by the Authority, the importance of the Maley opinion was not as obvious as the applicant contends.
I accept that the content of the Maley opinion received particular attention in the applicant’s submissions. It was referred to on numerous occasions across 3 written submissions, its content was paraphrased and extracts were footnoted. However, the Maley opinion sat within an abundance of other country information provided by the applicant, parts of which were more or less extensively quoted and relied upon and footnoted than Maley. Some of this new information was provided to the Authority and some of it was not.
The fact is the Maley opinion was not provided to the Authority by the applicant’s representative when it could have been. There is no evidence that the report or opinion of Professor Maley was specifically commissioned for the applicant so as to distinguish it from or elevate its importance above other country information. The applicant’s solicitor deposes that there is no record of the Maley opinion having been sent to either the delegate or the Authority, but she does not depose to that being the result of any mistake or inadvertence.
In all the circumstances, it was open to the Authority to conclude that the applicant had provided in his submissions the documents and information he wanted the Authority to consider, including relevant extracts from the Maley opinion. There was in my view no reason for the Authority to have inferred that the applicant’s representatives had intended but inadvertently neglected to provide the entire report.
The absence of any mention of the Maley opinion in the Authority’s consideration of its discretion to get new information does not give rise to an inference that the Authority failed to consider exercising its power to obtain it. Respectfully, the importance of the Maley opinion as an item of country information was not so obvious as to give rise to such an inference. The applicant has not identified jurisdictional error.
Moreover, if the Authority did consider the power to get the Maley opinion but decided not to exercise the discretion, that discretion did not miscarry having regard to the statutory context in which it was exercised.
Ground 6 should be dismissed.
Ground 7
The applicant asserts that the IAA misunderstood, or failed to complete, the statutory task required of it in that it did not consider the consequences that flowed from the possibility that:
(a)the applicant had been ordered by the Taliban to poison school water; and/or
(b)the Taliban had been asking taxi drivers about the applicant by name since his departure from Afghanistan.
Applicant’s submissions
Relying upon Minister for Immigration and Multicultural Affairs v Rajalingam (2020) 93 FCR 220, the applicant submits that in the context of the real chance/risk test posed by s 36 of the Act, although the decision-maker might find that alleged past events have not occurred, the chance that they might have occurred could provide a rational founding for finding that the applicant has a well-founded fear of persecution. Put differently, “there are circumstances in which the [decision-maker] must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur”.[59] This is the so-called “What if I am wrong?” test.
[59] Rajalingam at [60]
In the present case, the applicant notes that the Authority had “concerns” about the applicant’s claim of having been instructed by Mullah Kamran to poison school water. However, the applicant contends that although the Authority “did not accept” that claim and was “not satisfied” of it, the Authority did not dismiss the claim or find that it was fabricated. The applicant submits that although the Authority did not accept the affirmative case put by him, it did not positively reject the claim and was thereby required to consider what flowed from the possibility that it might be true.
The applicant also submits that where, as here, multiple past events are relied upon, the claims give rise to compounding probabilities. The applicant contends that a decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect[60].
[60] Thanh Phat Ma v Billings (1996) 71 FCR 431 at 436 (per Drummond J)
Here, the applicant points to the language of the decision-maker which he says does not convey a positive rejection of his claims that the Taliban asked him to poison a school well or that the Taliban were asking other taxi drivers about him by name after his departure from Afghanistan. The applicant submits that there is a world of difference between the Authority “not accepting” a claim and rejecting it, particularly as it was open to the Tribunal to use the stronger language if it had wished to be emphatic in its finding.
The applicant submits that the compounding probability of his claims possibly being true is a relevant matter in determining whether the applicant had a well-founded fear of persecution. It is submitted that by not actively engaging in a “what if I am wrong?” analysis the Authority should be taken to have misunderstood, or to have failed to complete, the statutory task required of it. The applicant submits that the absence of this analysis is a material error because, when combined with the general risk profile for Shia Hazaras in Afghanistan, the possibility that a person was specifically threatened by the Taliban (and the Taliban’s ongoing interest in that person) may realistically have affected the outcome of the review.
Minister’s submissions
The Minister does not contest the applicant’s statement of principle in relation to this ground.
The Minister submits that the only question for the Court is whether the Authority was in any real doubt about its findings in relation to the applicant’s claims. On that question, the Minister submits that when read fairly and as a whole, the Authority’s findings do not indicate that it entertained any real doubt as to its findings of fact and that the findings are not as equivocal as contended for by the applicant.
The Authority identified that it had “concerns” regarding the applicant’s claim to have been given a parcel containing poison and the order that he contaminate a school well. Considering that claim, the Authority referred to country information regarding, among other things, the prevalence of school poisonings in Ghazni, the Taliban’s reported changes in attitude toward schools and the Taliban’s level of influence in the Jaghori area. But ultimately the Authority said that it did not accept that the Taliban would have asked the applicant to undertake such an attack in Jaghori and was not satisfied that the applicant was ordered by the Taliban to poison a school well or that he would be of interest because of his failure to do so. In its reasons the Authority expressly noted that it had not accepted the poisoning claim.[61]
[61] CB, p 260 [21]
The Minister submits that where a decision-maker is not in any real doubt that its findings as to past events were correct, it is not required to consider the possibility that it was wrong when applying the real chance test. The Minister submits that the Authority’s findings of non‑acceptance and non-satisfaction about the applicant’s claims were expressed in clear terms and were not equivocal. In the Minister’s submission there is no relevant difference between the finding made by the Authority in those terms and an express rejection.[62] In either case, read in its terms, the Authority’s reasons do not leave room for any suggestion of doubt.
[62] DLC17 v Minister for Immigration and Border Protection [2018] FCA 1361
Consideration
It can be accepted as common ground that the Authority would only need to consider whether its findings were wrong if it had a “real doubt” about the correctness of its findings on material questions of fact. While the issue of whether the Authority had such a doubt can only be derived from the language and context of its reasons, the Court should not readily impute to the Authority any lack of conviction or confidence in its findings.
In MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 the Full Court discussed the relevance of past persecution to the determination of the real chance of future persecution. In so doing the Full Court at [95]-[96] distilled the principled approach to this ground:
In Minister for Immigration and Multicultural Affairs v Rajalingam(1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision-making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution. His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:
(a)There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.
(b)In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.
(c)Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.
(d)There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.
(e)Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to “impute” to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well-founded. To do so would be to engage in merits review.
(f)In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal’s own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.
As to the last of these principles, Justice Sackville in Rajalingam said (at [67]):
… Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal’s] own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the [Tribunal’s] reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution.
(emphasis added)
In its reasons the Authority used a variety of expressions to communicate its findings in relation to the poisoning claim and the claim that the Taliban had been asking other taxi drivers about him. At a headline level the Authority identified that it had “concerns” about the applicant’s narrative when considered in the context of country information. The applicant is correct that the Authority did not base those concerns on an express finding as to his credit, nor should the expression of “concern” be taken as a finding that the applicant’s claim was a fabrication.
However, in discussing each of the specific claims the Authority went beyond a general expression of concern and either “did not accept” or was “not satisfied” about the applicant’s narrative. I accept that this language speaks to a lesser degree of certainty than outright rejection and it might suggest a finding of improbability or implausibility rather than impossibility. For example, in finding that it “did not accept that the Taliban would have asked the applicant to undertake such an attack in Jaghori where they had no influence when they had ample opportunity to attack other schools against which they had made threats”[63], the Authority seems to conclude that such an ultimatum in Jaghori was improbable or most unlikely rather than impossible.
[63] CB, p 260 [20]
Where the Authority is uncertain as to whether an alleged event occurred, or finds that, although the probabilities and possibilities were against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in the process of considering whether the applicant has a well‑founded fear of persecution. Accordingly, the issue here is the degree of confidence the Authority had in its findings, in circumstances where the Authority has not made that clear in its reasons.
In making findings of fact the Authority will invariably have to engage in an assessment and weighing of all the evidence. It is a matter for the Authority to evaluate the evidence of the applicant and all the other evidence and material placed before it. Unless there is no evidence to support a claim or the Authority has evidence which enables a positive finding that a claim is false or has been fabricated, findings will usually be conveyed in measured language which by inference acknowledges that they are the product of a weighing and assessment of the available evidence. The “non-acceptance” of a claim or the Authority’s “non-satisfaction” about a claim, after a lengthy discussion about the evidence in favour of and against that claim, is an example of that process. Absolute certainty or conviction about a finding of fact is rarely expressed emphatically, probably because a decision-maker does not often reach that height of confidence.
As the Minister submitted, and I accept, there is no principle which requires the Authority to express its findings in a manner that makes explicit its degree of conviction or confidence that its findings are correct. Furthermore, a Court exercising powers of judicial review should not impute a lack of conviction or confidence to the decision-maker. The question comes down to whether a fair reading of the Authority’s reasons as a whole exposes any real doubt about its critical findings of fact.
In my view, the finding by the Authority about the poisoning incident was not attended by “real doubt” such as to require the Authority to consider the possibility that it did occur in assessing whether the applicant faced a real risk of persecution. Fairly read, the Authority did not express any hesitancy or uncertainty or qualification about its finding. Nor did the Authority find that the claim was “unlikely” or simply that the balance of probabilities were against it, language the Authority could have adopted if it harboured real reservations or a lack of confidence.
The decision of the Authority should not be read over-finely, or with an eye too keenly attuned to the perception of error. A common sense approach as to what the Tribunal was saying is called for.[64] At [20] the Authority found that it “did not accept” the applicant’s claim and in [21] again repeated it had “not accepted” the claimed incident. The use of that language in and of itself does not give rise to an inference that the Authority had real doubt about its finding.
[64] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited in Rajalingam at [67]
A fair and holistic reading of the Authority’s reasons does not permit a conclusion that the Authority had a real doubt about the correctness of its findings on the material questions of fact. Accordingly, any failure to consider the possibilities that the alleged events might have occurred does not in the circumstances of this case reveal jurisdictional error.
Ground 7 should be dismissed.
Ground 8
At [20] the Authority said “Given the situation in Ghazni I do not accept that the Taliban would have asked the applicant to undertake such an attack in Jaghori where they had no influence when they had ample opportunity to attack other schools against which they had made threats”.
By ground 8, which is posited as an alternative to ground 7, the applicant argues that the Authority’s findings regarding the poisoning request were illogical or irrational.
Applicant’s submissions
The applicant submits that if the Authority did positively find that no ultimatum was issued by Mullah Kamran requiring the applicant to poison a school well, that was an illogical or irrational finding because it was not open on the evidence and was not based on findings of fact or inferences supported by the evidence.
Similar to his submissions in relation to Ground 7, the applicant submits that the Authority’s finding did not rely on its assessment of the applicant’s credibility or demeanour, nor did it rely on inconsistencies in his account or on the inherent implausibility of his account. Rather, it is submitted that the Authority’s finding was based solely on its assessment of how the Taliban was likely to have prioritised its attacks at the relevant time.
The applicant submits that the Authority’s finding should be seen to be illogical or irrational for two reasons.
First, it is submitted that the Authority’s finding proceeds upon an unstated assumption that the Taliban would only seek to undertake attacks in places where they had influence. It is submitted that there was no basis for this assumption in logic or in the country information. It is submitted that the country information before the Authority supported a conclusion that the Taliban and other anti-government groups were seeking to make inroads into areas where they had not previously held sway or which had previously been regarded as “usually relatively safe”. It is submitted that as a matter of logic, the making of inroads into other areas necessarily involves at some point the initiation of steps in places beyond those in which influence is already exerted.
Secondly, the applicant submits that the Authority’s fact-finding process was irrational because it considered the claim regarding the poisoning ultimatum separately and distinctly from the claim that the Taliban had been asking other taxi drivers about the applicant after his departure from Afghanistan. In circumstances where the latter claim (i.e. taxi drivers being quizzed about the applicant) was not expressly rejected by the Authority and was thus possibly true, the applicant says the Authority should have taken that possibility as being logically probative of the poisoning claim. Put another way, in circumstances where the Authority accepted that the Taliban may have recorded the applicant’s details, and did not expressly reject that the Taliban had continued to ask about him, the possibility that the applicant had been personally given an ultimatum by a senior Taliban figure could realistically have made a difference to the outcome of the review, and was thus a material error.
Minister’s submissions
The Minister does not contest the relevant principles articulated in the applicant’s outline of submissions[65], however the Minister submits that the bar for finding error is high and that the conclusion of irrationality is not open.
[65] Applicant’s Outline at [54]
The Minister contends that the Authority’s finding that the Taliban would not seek to attack schools in Ghazni was based on cogent and accepted country information, supported at least in part by the submissions of the applicant’s representative. In the present case, at [20] of its reasons, the Authority plainly considered country information and impliedly rejected a submission that the Taliban were taking an indiscriminate approach. The Authority’s conclusion that the Taliban would not ask the applicant to undertake an attack in Jaghori where they had no influence was not irrational, rather it involved reliance upon country information.
The second limb of the applicant’s irrationality submission (i.e. that the Authority engaged in a siloed approach to fact-finding) is also rejected by the Minister. The Minister submits that the applicant has misconstrued the Authority’s reasons in an important respect. Contrary to the submissions of the applicant, the Minister submits that the Authority did reject the claim that the Taliban had been asking other taxi drivers about him. It was submitted that the claim was expressly rejected at [20] of the reasons when the authority stated that it was not satisfied that the applicant “would be of interest to the Taliban on return for failure to comply with their orders”. The Minister submits that it was also rejected at a higher level of generality when the Authority noted that after the passage of nearly 5 years, it was not satisfied that the applicant would face a real chance of harm as a result of his previous work as a Shia Hazara taxi driver.
Consideration
It is not in doubt that a decision made by the Authority may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds[66].
[66] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40] (Gummow ACJ and Kiefel J), [102] (Crennan and Bell JJ)
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 that was before the decision-maker. While minds might differ as to whether the Authority came to the right conclusion, that does not mean that either the conclusion it reached or its process of reasoning was illogical.
In SZMDS at [130] Crennan and Bell JJ pointed out that “not every lapse in logic will give rise to jurisdictional error” and that a court should be slow to interfere. At [131] their Honours said of a complaint of illogicality or irrationality which is said to lie in the process of reasoning:
[T]he 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.
Similarly, in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47] Griffiths, Perry and Bromwich JJ observed that:
[F]or 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” (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J). 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 (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
Accordingly, while error may arise if findings or reasoning in the process of reaching a conclusion are illogical or irrational, the decisive test is whether there was no foundation for the conclusion reached or no logical connection between the evidence and the inferences or conclusions drawn.
At [20] of the reasons the Authority did not accept the claim regarding the poisoning ultimatum at least in part because of its finding, based on country information, that the Taliban had no influence in Jaghori and because the Taliban were more likely to prioritise and target other schools in the Northwest or north-east of Afghanistan against which they had made threats.
In reaching its finding not to accept the applicant’s claim, the Authority found that at the relevant time the Taliban had a very weak presence in Jaghori and little or no influence in the area. If that were the only basis for the finding, there might be some attraction in the applicant’s illogicality submission. Evidence that the Taliban is seeking to extend its reach does as a matter of logic leave open the possibility that certain activities will at some point be undertaken outside the current arc of influence.
But, the relevant question before the Authority was not whether the Taliban was seeking to extend its influence generally, rather it was whether the asserted claim by the applicant gave rise to real risk or chance of harm. Consideration of that question required an assessment of the nature of the claim itself (i.e. that a Taliban commander had issued a poisoning ultimatum) and the inherent credibility or likelihood of that claim in light of relevant evidence including country information. The issue for the Authority was whether an ultimatum to undertake a poisoning attack against a school in Jaghori at that time was credible or plausible.
The Authority took into account numerous elements of country information which led to its non-acceptance of the applicant’s claim, all of which in the aggregate stand as a logical and rational basis for its finding. It will be seen at [20] of the reasons that the Authority also considered:
(a)there was no evidence of any school well being poisoned in Jaghori or Ghazni;
(b)evidence of Taliban intimidation and threats of violence against schools, especially targeted girls education;
(c)threats against girls schools had mostly occurred in the Northwest or north-east of Afghanistan, but there was no evidence of actual attacks;
(d)the applicant stated that he had not been asked to poison the well of any particular school or type of school;
(e)there was evidence of a reported change in the Taliban’s attitude to education;
(f)when schools in Ghazni were closed in April 2012 due to a conflict with authorities over a motorcycle ban, schools in Jaghori had remained open; and
(g)there was no evidence that educational institutions including girls schools were being targeted in Jaghori (where the Taliban had no influence) or in Ghazni (whether the Taliban were active).
On the whole of that evidence it was open to the Authority to not accept the applicant’s claim that he had been asked by a Taliban commander to indiscriminately poison a school well. That finding was neither irrational nor illogical and it was based on a sound premise supported by country information. There was a clear logical connection between the evidence and the conclusion reached.
Nor do I accept the second limb of the applicant’s submission, namely that the Authority engaged in irrational and siloed decision-making by considering the Mullah Kamran poisoning ultimatum separately and distinctly from the claim that the Taliban had been asking other taxi drivers about the applicant after his departure from Afghanistan.
I do not accept the Minister’s submission that the Authority expressly rejected the applicant’s claim that the Taliban had been asking other taxi drivers about him. I agree that the specific claim itself was not rejected in discrete terms. However, by inference the claim seems to have been taken into account by the Authority and linked with the alleged poisoning claim in the process of reaching its finding that the applicant would not be of interest to the Taliban on return for any failure to comply with their orders.
As stated earlier, criticism may be directed to the decision-making process, but on judicial review the decisive test is whether there was a rational and logical foundation for the conclusion reached or a logical connection between the evidence and the inferences or conclusions drawn. The finding that the applicant would not be of interest to the Taliban on return for any failure to comply with their orders was not illogical or irrational, particularly having regard to the Authority’s other finding that after the passage of nearly 5 years (since he had been stopped on the roads) the applicant would not face a real chance of harm as a result of his previous work as a Shia Hazara taxi driver.
For the reasons set out above, I reject ground 8.
Ground 9
By ground 9, the applicant asserts illogicality or irrationality in the Authority’s findings of fact regarding the applicant’s means of return travel to Jaghori.
The Applicant’s submissions
Here the applicant makes two complaints. First, the applicant submits that the Authority only considered the risk on the roads at the time of its decision, and failed to undertake a predictive assessment as to future risk. Secondly, and in the alternative, the applicant submits that the Authority’s consideration of the risks of travelling by road or air was illogical because it was premised only on current circumstances.
The applicant submits that any proper consideration of a real risk or chance of harm requires a future assessment which, in turn, requires consideration of what has happened in the past. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [56] the High Court opined:
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide as to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty…..”
In the present case, the Authority was “satisfied that the applicant could reside in Jaghori safely”[67]. Having so found, the applicant properly submits that it was then necessary for the Authority to consider the potential exposure of the applicant to a real chance/risk of harm on his return journey to Jaghori from Australia (via Kabul). In that respect the Authority assessed two avenues - travel by road and by air - and given the absence of flights from Kabul to Jaghori, at least part of the return journey would involve travel by road.
[67] CB, p 261 [23]
As to travel by road, the Authority found that there were road routes from Kabul to Jaghori that were “considered secure” and “safe and open”[68]. However, the applicant submits that this finding was based on circumstances as they pertained at the time of the Authority’s decision, rather than at some time in the future when it might reasonably be foreseeable that the applicant would be returned.
[68] CB, p 262 [27]
The applicant points to various findings in the Authority’s reasons which acknowledge past or historic instability over time in the security situation regarding travel by road. For example, the Authority noted that Hazaras had been targeted on roads between Kabul and Hazarajat in 2015, although there was an absence of such targeting in 2016 and more recently. The Authority also acknowledged that two returnees from Australia had been targeted on roads when returning to Ghazni [which is on the way from Kabul to Jaghori] in 2014 but noted that there had been an absence of any further reports since that time. Similarly, the Authority accepted that roads had periodically been blocked due to conflicts, but in respect of the leg from Ghazni to Jaghori the roads were currently “considered secure” or “reported to be safe and open”, in part because of security operations performed by the Afghan National Security Forces in January and May 2016.[69]
[69] CB, p 262 [24]-[27]
The applicant submits that in its assessment of the risks attached to his potential return to Jaghori the Authority should be seen to have asked itself the wrong question. The proper question was not whether the roads were safe and secure at the time of the decision, but whether they would be so in the future at the time when the applicant might be returned.
The applicant submits that the acknowledgement of past instability should properly have informed the Authority’s future assessment. Moreover, the applicant submits that the Authority should have made allowance for the risk of error based on the possibility that the future situation would not conform with the present, particularly having regard to past instability.
In the alternative, the applicant submits that rational and logical fact-finding required the Authority to consider whether the conditions that existed at the date of the decision (4 August 2017) would pertain at the point in time in the future when the applicant might foreseeably return. Here, the applicant contends that the Authority’s finding was devoid of any such future analysis and was made on the illogical assumption that the circumstances that existed at the time of the decision would exist at the time of the applicants return. The applicant submits that this approach can be seen to be in contrast to the delegate, who expressly considered whether the volatility of the situation in Afghanistan affected her findings. The applicant contends that to properly exercise jurisdiction the Authority was required to “assess the imponderables”[70] about the future as a required component of the assessment as to whether there was a real, as opposed to a remote, chance of persecution.
[70] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [43] per Allsop J
It is submitted that the Authority also fell into the same error in relation to its analysis of return travel by air. The Authority found that the applicant would not be restricted to road travel because of a new commercial air route between Kabul and Bamiyan which commenced in March 2016. But again the applicant submits that in the absence of any consideration of whether the flight route would remain open and operational in the future (given that another airline company had been grounded) this finding by the Authority was made on the illogical assumption that the circumstances that existed at the time of decision would pertain at the time of the applicant’s return.
For each of the above reasons, the applicant submits that the authority’s reasoning on the safety or otherwise of return travel to Jaghori was affected by jurisdictional error.
Minister submissions
The Minister accepts that the Authority’s consideration of the section 36(2) criteria required it to make an assessment about the risk of persecution in the “reasonably foreseeable future”. Citing Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60], the Minister submits that the “reasonably foreseeable future” is
“… something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork….”[71]
[71] Cited with approval in AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184 at [51] per Besanko, Middleton and Mortimer JJ
The Minister submits that the Authority expressly recognised its task as requiring it to consider a real chance or risk of harm to the applicant in Afghanistan “in the reasonably foreseeable future” including the viability of his relocation.[72] It is submitted that the Authority repeatedly applied that test throughout its decision-making. It is submitted that the text of the decision record including the Authority’s repeated use of predictive language such as “would” and “could” in each paragraph from [24]-[31][73] amply reveal that the Authority did not confine its consideration to present risks, but included a forward-looking assessment.
[72] CB, p 255 [6]
[73] Being the paragraphs in which the Authority specifically considered the applicant’s return to Jaghori
The Minister submits that the Authority was not required to speculate (in the realm of guesswork) about a decline of the safety or security of roads beyond the reasonably foreseeable future. Given the Authority did make a forward-looking assessment, there was no illogicality or irrationality in its consideration of the real chance or risk of harm to the applicant.
Consideration
I have already discussed the principles relevant to the courts review of findings which are alleged to be irrational, unreasonable or lacking in intelligible justification. The threshold for finding jurisdictional error is very high.
There can be no doubt that the Authority turned its mind to the risks of the applicant’s return journey to Jaghori separate from its consideration of whether the applicant could reside in Jaghori safely without facing a real chance/risk of harm. Consideration of the risks of a return to Jaghori by road and/or by air and the associated risks of the applicant using roads in and around Jaghori as part of his future employment as a taxi driver are dealt with at paragraphs [24] -[32] of the reasons.
Contrary to the submissions of the applicant, the Authority’s reasoning did not proceed on the basis that the applicant would be returning at the time of the decision rather than at some time in the future. The Authority’s analysis of the current safety and security situation should not be taken as the Authority asking itself the wrong question.
It is self-evident that the assessment in paragraphs [24] and following of the Authority’s reasons is directed to future events, albeit not framed by reference to any neatly-defined reasonably foreseeable future or horizon. There is no express indication in the reasons as to when the Authority anticipated that the applicant would undertake return travel, although one can infer from the language of the reasons an assumption the “reasonably foreseeable future” would involve travel within a timeframe which was reasonably proximate to the decision. Although the horizon may have been short, the Authority applied its mind to the future and it cannot be said that the Authority fell into error by asking itself the wrong question.
The more difficult question is whether the Authority rationally and logically engaged in an adequate consideration of future risk having regard to undeniable evidence of past instability. I agree with the applicant that the Authority appears to have proceeded on the basis that security conditions pertaining at the time of the decision would continue at least until the applicant’s anticipated return to Afghanistan (whenever that might be). The reasons do presume that “current” reports regarding the safety and availability of certain road and air routes will not materially change for the foreseeable future. The general tone of the Authority’s consideration is that the worst of the risks, instability and insecurity were in the past and that following clearance operations carried out by the Afghan National Security Forces and the introduction of a new commercial air operator, the current situation is likely to pertain to the future.
The applicant contends that such an assumption of stability for the reasonably foreseeable future is an illogical premise because it fails to properly have regard to a history of past instability and what should be seen as an unpredictable future. The applicant’s case on this ground is that it was irrational or illogical for the Authority not to have imputed the future with a greater level of uncertainty, instability and insecurity because, based on past instability, “current” conditions were unlikely to survive for long. It is submitted that the Authority’s reasons simply did not grapple with longer term volatility in the same way that the delegate did.
Consideration of alleged illogicality or irrationality in decision-making must be framed by the matter under consideration – here the risks of harm which might attend the applicant on a return journey to Jaghori from Australia via Kabul. The lens must be focussed on that event or process and the reasonably foreseeable timeframe within which that event or process was likely to occur. An assessment of risk which attends such a future event or process may be informed by past events, the current situation, a prediction about the past repeating itself and consideration about whether new circumstances or events might disrupt past predictions and establish new or different conditions. But the assessment must be made on probative material and not stray into mere speculation or guesswork.
The Authority was not oblivious to and took into account past instability and insecurity. In its reasons the Authority recognised that during 2015 Hazaras had been targeted in Pashtun areas on roads between Kabul and Hazarajat. As mentioned earlier, the Authority also identified past incidents on the roads around Jaghori including instances of returnees from Australia being targeted, that roads had been periodically blocked due to conflicts and that people had been kidnapped due to their connections with government or for financial gain.
The Authority also appropriately took into account more current conditions, based on country information, and noted how those conditions differed and had improved from the past. For example, there was no evidence of Hazaras being targeted on roads between Kabul and Hazarajat in 2016 or on the roads to Ghazni more recently. There had been no further reports of the targeting of returnees since 2014. Thousands of vehicles were using the Kabul-Kandahar highway on a daily basis between Ghazni city and the Hazara district on roads now reported to be safe. Various district roads were open and reported to be safe after clearance operations by security forces in January and May 2016.
Having regard to this probative material and without extending into guesswork, it was neither illogical nor irrational for the Authority to find that the applicant would not be harmed on the roads as a Shia Hazara whilst returning to Jaghori. Although minds will invariably differ when it comes to predictions about the future, it was in my view properly open to the Authority to find on the available evidence that the then current conditions (as to the availability and safety of both road and air travel) would continue at least over the period during which the applicant might be expected to undertake return travel. The Authority’s finding had a rational factual basis and its prediction about conditions in the reasonably foreseeable future was based on inferences fairly drawn from the evidence.
Ground 9 has not been made out and should be dismissed.
Disposition
For the reasons set out above, the applicant has not demonstrated that the decision of the Immigration Assessment Authority made on 4 August 2017 is affected by jurisdictional error.
The application for judicial review will be dismissed.
I will order that the applicant pay the Minister’s costs.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 28 October 2022
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