Eas16 v Minister for Immigration

[2020] FCCA 2545

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAS16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2545

Catchwords:
MIGRATION – Application for Protection visa – claims of irrationality and unreasonableness not made out – no failure on the part of the Tribunal to correctly consider what constituted a well-founded fear of persecution – no jurisdictional error established – application dismissed.  

Legislation:

Migration Act 1958 (Cth), s.65.

Cases cited:

BJI17 v Minister for Home Affairs [2020] FCAFC 58.

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.

Minister for Immigration and Border Protection v Pandey [2014] FCA 640.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR

379.

Applicant: EAS16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2797 of 2016

Judgment of: Judge Egan

Hearing date: 9 September 2020

Date of Last Submission: 9 September 2020

Delivered at: Brisbane

Delivered on: 11 September 2020

REPRESENTATION

Solicitors for the Applicant: Mr D Harvey of David Harvey Law

Solicitors for the First  Respondent: Mr S Cummings of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Amended Application filed on 17 August 2020 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 2797 of 2016

EAS16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Pakistan who arrived in Australia on 9 August 2012 as an unauthorised maritime arrival. On 27 September 2012, the applicant participated in an entry interview.

2. On 9 December 2012, the applicant applied for a Protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’).

3. On 22 September 2014, a delegate of the Minister refused to grant the visa application, after which the applicant sought review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’).

4. The applicant appeared before the Tribunal at a review hearing conducted on 21 September 2016, at which time he was represented by a migration agent. The applicant was also assisted by an interpreter fluent in the Pashto/Pushtu and English languages.

5. On 30 November 2016, the Tribunal affirmed the decision of the delegate.

6. On 22 December 2016, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing before the Court, the applicant relied upon the grounds for review as set out in an Amended Application for Review filed on 17 August 2020. The grounds relied upon by the applicant were as follows:

   “Grounds of application

   Real Chance of Persecution

   4. On review, the Second Respondent also failed to take into account the relevant aspects of the country information with respect to Shias in Pakistan.

   5. The Second Respondent relied on the DFAT Thematic Report: Shias in Pakistan (15 January 2016) (“the DFAT Report”).

   6. The DFAT Report and other reports confirmed the continuation of violence perpetrated by Sunni against Shia Muslims. However, the Second Respondent focused on the momentary reduction in violent attacks against Shia.

   7. The legal test for determining if a well-founded fear of persecution exists, is if there is a real chance of the person being persecuted, consistent with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

   8. In that High Court decision, their Honours found that a real chance is one that is not remote even if there is less than a fifty percent chance of the persecution happening.

   9. The Second Respondent ignored Chan as the correct approach to determining a well-founded fear of persecution. The First Respondent had stated that in the present case, there was a real chance of serious harm. Furthermore the Tribunal conceded as follows:

   … that violent conflict between Shia Turi/ Bangash and Sunni Bangash in Kurram Agency has occurred sporadically since the 1970s, but more recently members of the Afghan Taliban have regularly sought passage through Kurram following the arrival in Afghanistan of NATO forces in 2001. As noted above, the most recent period of conflict began in 2007. The devastating effects of this conflict on the Shia residents of [Town A] has been widely reported, with the Shia population subjected to frequent suicide bombings and targeted attacks on the Shia community.

   10. The Second Respondent’s failure to make a finding other than that there is a real chance of harm can only be seen as irrational, and is therefore erroneous at law.

   Meaning of Persecution

   11. The Second Respondent was erroneous in finding that, because the Applicant was not particularly known to the perpetrators of violence, the Applicant could not have been persecuted.

   12. In the High Court in Chan, McHugh J. stated:

   The term “persecuted” is not defined by the Refugees Convention or the Protocol … And … it is not necessary, however, the conduct complained of should be directed against the person as an individual. She may be ‘persecuted’ because she is a member of a group which is subject to systematic harassment… Nor is it a necessary element of ‘persecution’ that the individual be a victim of a series of acts. A single act of oppression may suffice.

   The threat need not be the product of any policy of the government… It may be enough … that the government is unable to protect the person in question from persecution.

   Likelihood

   13. In the same case Dawson J. stated:

   … a fear can be well-founded without any certainty, or even probability, that it will be realized. … A real chance is one that it not remote, regardless of whether it is less or more than 50 per cent.

   14. In the publication: Guide to Refugee Law: Chapter 3 – Administrative Appeals Tribunal Dec 2019 it is stated that ‘Unlikely’ is not the correct test.

   15. In Chan, also, McHugh J. stated:

   A fear may be well-founded for the purpose of the Convention even though persecution is unlikely to occur.

   16. The Second Respondent, in noting any reduction in anti-Shia violence was making an estimation as to likelihood of anti-Shia violence and was therefore erroneous in law.”

   [Town name omitted]

7. At [4] – [18] inclusive, the Tribunal relevantly set out the law applicable to applications for a protection visa having regard to the refugee and complimentary protection criteria.

Grounds for Review

1. The lawyer on behalf of the applicant submitted that the grounds for review were of two parts. Grounds 4, 5 and 6 (First Claim) were said to relate to claims that the decision of the Tribunal was in error on irrationality and unreasonableness grounds, whereas Grounds 7 – 16 inclusive (Second Claim) related to the claim that the Tribunal had applied the incorrect test when considering what constituted a well-founded fear of persecution.

2. As to the First Claim, it was submitted that the Tribunal’s recording of instances of violence and hostilities at paragraphs [31, [32], [33], [34], [37], [38] and [47] of its reasons was inconsistent with its findings at [92] and [93] of its reasons, which findings were respectively as follows:

   “[92] Having considered all of the applicant's claims separately and cumulatively, the tribunal does not accept that he faces a real chance of serious harm for reasons of his ethnicity, religion, actual or imputed political opinion, membership of any particular social group or any other Convention-ground if he were to return to Pakistan. The tribunal therefore does not accept that the applicant faces a well-founded fear of persecution.

   [93] Having also considered the applicant's claims both separately and cumulatively under the complementary protection criteria, the tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm.”

3. It was submitted on behalf of the applicant that there was evidence of significant violence having been perpetrated upon people of the applicant’s tribe, as well as against Shia Muslims of which the applicant was one. It was submitted that though the Tribunal had accepted that violence had occurred, and that such violence had been widespread, the Tribunal had failed to have due regard to the extent of such violence and that, therefore, its findings adverse to the applicant’s claims were irrational or unreasonable. The Court was referred to the contents of [47] of the reasons of the Tribunal in support of such submission. Paragraph [47] of the reasons of the Tribunal provided as follows:

   “[47] The tribunal notes that violent conflict between Shia Turi/ Bangash and Sunni Bangash in Kurram Agency has occurred sporadically since the 1970s, but more recently members of the Afghan Taliban have regularly sought passage through Kurram following the arrival in Afghanistan of NATO forces in 2001. As noted above, the most recent period of conflict began in 2007. The devastating effects of this conflict on the Shia residents of [Town A] has been widely reported, with the Shia population subjected to frequent suicide bombings and targeted attacks on the Shia community.”

   There is no merit to such claims.

4. First, at [19] – [45] inclusive of its reasons, the Tribunal considered evidence of bombings, deaths and persecution of Shia Muslims leading up to the time of the applicant’s departure from Pakistan in 2012. The Tribunal there had regard to the sectarian nature of violence suffered by Shia Muslims, as well as general violence and unrest within the country.

5. At [46] of its reasons, the Tribunal recorded that it had considered the applicant’s future risk of harm on the basis of his religion, ethnicity, particular social group membership and political opinion arising out of his profile as a Shia Muslim Turi from [Town A].

6. At [47] – [57] inclusive of the reasons of the Tribunal, the Tribunal noted the prevalence of violence and unrest within Pakistan up until 2012, but it also noted extensive evidence contained in numerous country information reports, including DFAT reports, which indicated that since 2012 there had been a trend of decreased violence. By way of example, at [53] and [55] of its reasons, the Tribunal respectively found as follows:

   “[53] In 2016, PIPS reported that the overall number of incidents of violence decreased by 48% from 2014 to 2015 along with a 34% decrease in overall fatalities. According to information provided by PIPS, there were only three reported acts of communal sectarian (i.e. Shia-Sunni) violence in 2014 resulting in two deaths, which represents a sharp decline from the 264 sectarian clashes and 178 deaths recorded in 2010. The trend of decreased violence appears to be continuing in 2016. The general situation and information contained in some of the above reports have informed DFAT's assessment, discussed with the applicant, that Shias face a low risk of sectarian violence in Pakistan.

   …

   [55] Information contained in the most recent DFAT report on Shias in Pakistan (January 2016) was also put to the applicant at hearing including that:

   ·According to the FATA Research Centre ('FRC'), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015.

   ·DFAT understands the [Road A] Road remains open and there have been no major security incidents on the road in 2015.

   ·Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in [Town A] highlights a degree of vulnerability in these security measures.

   ·More than 3,700 families returned to their places of origin in 2014, including [Town A] and surrounding villages in [Area A]. This represents approximately25 per cent of those formerly displaced - most of who were reportedly Sunnis from [Area B]. Returns to Kurram and Orakzai Agencies recommenced on 1 October2015 following a nine-month suspension because of ongoing military operations. From October – November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, [Town B] and Islamabad where they have established family and community networks.

   ·According to the South Asian Terrorism Portal (SATP), there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight.

   ·FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.

   ·DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb.

   ·DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.”

   [Town names omitted]

7. At [58] – [65] inclusive of the reasons of the Tribunal, the Tribunal recorded the applicant’s responses to what was said to be a trend of decreased violence and greater stability in Pakistan. It could not be said that the Tribunal failed to provide the applicant with an opportunity to fully address all claims made by him, or that the Tribunal had not considered such claims.

8. At [67] – [72] of its reasons, it was clear that the Tribunal had weighed up the conflicting evidence before it. At [70] – [73], when analysing the risk of harm to the applicant should he be returned to Pakistan, the Tribunal found as follows:

   “[70] As noted in its above findings, the tribunal accepts that the applicant and various members of his family (including his uncle, cousins and brother) have either witnessed or been the victims of violence against Shias in [Town A] and in [Town B]. However, the tribunal has not accepted that the applicant or any members of his family were personally targeted during these attacks and on the evidence before it including country information discussed with the applicant and set out in this decision, the tribunal does not accept that any of these incidents give the applicant a profile that would give rise to either a real chance of serious harm, or a real risk of significant harm if he were to return to [Town A]. In this regard, the tribunal notes that the applicant has not referred to his family members in [Town A] having faced any harm since the applicant's departure from Pakistan. According to his evidence, nothing has happened to his family but they are in fear because you never know what will happen. He referred to a lot of stress and fearing he could die anytime in a bomb blast.

   [71] On the evidence before it, the tribunal does not accept that the applicant faces a real chance of serious harm at the hands of militants including the TTP, Sipah e Sahiba (SSP) and Lashkar-e-Jhangvi (LeJ) if he returns to Kurram Agency for reasons of his Shia religion, Turi ethnicity or tribe, origins from [Town A], any actual or imputed political opinion in opposition to extremists/militant groups arising out of those factors, or a combination of any of these characteristics. The tribunal does not accept that the applicant's membership of the particular social group comprised of 'young Shia Muslims from [Town A]' increases the chance of serious harm to a real one given that, as noted at the hearing, the information before it does not indicate that members of such a group are specifically targeted by any of the groups feared by the applicant.

   [72] On the country information and evidence before it, the tribunal also does not accept that the applicant faces a real risk of significant harm from militant groups due to his profile as a young Turi Shia Muslim from [Town A] or any actual or perceived opinions arising out of that profile.

   [73] The tribunal has considered the risk of harm faced by the applicant due to generalised violence in Kurram Agency. Having regard to the country information discussed above, while a level of generalised violence exists in Kurram Agency, the tribunal does not accept that it is such that the applicant faces a real chance of serious harm due to his religion, tribe, political opinion, membership of a particular social group or any Convention reason as a result. Having regard to the country information the tribunal also does not accept that the level of generalised violence in Kurram Agency is such that the applicant faces a real risk of significant harm.”

   [Town names omitted]

9. The Tribunal was entitled to have significant regard to the contents of country information when arriving at its decision. In doing so, it was entitled to find that the level of violence had substantially decreased, and that there was a stabilisation of living circumstances in Pakistan. The Tribunal noted that the applicant had not referred to any violence or threats having been inflicted upon, or made to, any family member who had lived in [Town A] since the time of his departure. The Tribunal also had regard to the applicant not having any profile which would adversely bring him to the attention of either the authorities or those groups opposed to Shia Muslims. It also had regard to the issue of generalised violence in Kurram Agency, and whether or not there was a real chance of the applicant suffering serious harm as a result, finding that there was no such chance.

10. On the question of future risk of harm, the Tribunal was entitled to find, at [92] – [95] inclusive, as follows:

    “[92] Having considered all of the applicant's claims separately and cumulatively, the tribunal does not accept that he faces a real chance of serious harm for reasons of his ethnicity, religion, actual or imputed political opinion, membership of any particular social group or any other Convention-ground if he were to return to Pakistan. The tribunal therefore does not accept that the applicant faces a well-founded fear of persecution.

    [93] Having also considered the applicant's claims both separately and cumulatively under the complementary protection criteria, the tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm.

    [93] Having also considered the applicant's claims both separately and cumulatively under the complementary protection criteria, the tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm.

    [94] For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    [95] Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”

1. It has been accepted that the weight and accuracy given to country information is very much a matter for the relevant decision maker. In BJI17 v Minister for Home Affairs [2020] FCAFC 58 at [39], the Full Court (Greenwood, McKerracher and Burley JJ), when considering whether a decision maker was legally unreasonable or not in its assessment of country information, approved the decision of the Full Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [1] where it was said:

   [1] [2004] FCAFC 10 at [11].

   “[39] The appellants also say that where a challenge is made to a decision on the ground of unreasonableness, the process of supervisory review of the “legal reasonableness” of the decision is “inevitably fact dependent” (Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”), Allsop CJ, Robertson and Mortimer JJ at [48]), and testing whether the ground is made out involves “scrutiny of the factual circumstances in which the power comes to be exercised”:  Singh at [48].  As to the proper approach to determining whether a decision is properly characterised as “a legally unreasonable decision”, see the observations of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [51]‑[60].  The appellants also say that the “combination” of CRI026 and Singh, requires the Court to scrutinize the factual circumstances upon which the power has been exercised (for example, the factors going to relocation), to test “for reliability”.  The ultimate proposition each appellant advances is this:  “a decision to relocate an applicant can only be reasonably made if that decision is made with regard to reliable information” and “consideration of unreliable information is unreasonable”.  It is important to note that the appellants accept the force of, and do not seek to call into question, the observations of Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] which is in these terms:

   Reliance on ‘country information’

   The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well‑founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

2. In finding that there was not a real chance of the applicant suffering serious harm if returned to Pakistan, and that there was not a real risk of the applicant suffering significant harm, the Tribunal had properly exercised its jurisdiction. It had considered the articulated claims made to it, and it arrived at a considered decision after weighing up all of the evidence before it. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions on the same or similar facts. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

   “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

3. On the question of whether irrationality or illogicality has been established or not, the Court adopts what was said in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] where the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:

   “[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “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 as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

   54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

   55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

   [61] For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”

4. On the question of whether the Tribunal’s decision was legally unreasonable or not, the Court adopts what was said by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] as follows:

   “[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh).  The relevant principles may be summarised as follows: 

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably:  Li at [29], [63], [88]; Singh at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process.  Or it can be a conclusion reached without necessarily identifying another jurisdictional error:  Li at [27]-[28], [72]; Singh at [44].  In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45].  The intelligible justification must lie within the reasons given by the decision-maker:  Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48].  In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case.  A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review:  Li at [100]-[102].

   (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence.  It may decide in an appropriate case that “enough is enough”: Li at [82].  The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker:  Li at [30], [66]; Singh at [47].  The test of legal unreasonableness is stringent: Li at [113].

   [42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable.  Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”

5. There is no basis for a finding that the Tribunal acted irrationally or unreasonably so as to constitute jurisdictional error in arriving at its decision.

6. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

7. The First Claim is without merit.

8. As to the Second Claim, the Tribunal at [12] of its reasons adopted a test for what constituted a well-founded fear of persecution which was consonant with the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The Tribunal said:

   “[12] Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of being persecuted for a Convention stipulated reason. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”

9. Its correct adoption of the Chan test was also reflected at [78] of its reasons where it said:

   “[78] … For the same reasons the tribunal does not accept that any reports of Daesh support or activity in Pakistan increases the risk of significant harm to the applicant to one that is real, rather than remote. …”

10. It was submitted on behalf of the applicant that the Tribunal had ignored the Chan test. Such submission was unwarranted.

11. The Tribunal was entitled to have regard to the contents of DFAT reports and other country information, as it did, for the purpose of arriving at its decision. At [49] – [53] inclusive, the Tribunal found that there had been a significant reduction in hostilities/violence since the time of the applicant’s departure, and it noted that the country information had expressed conclusions to that effect in percentage terms – such country information recording reductions in sectarian violence and terror attacks as being between 75% - 34% relative to previous years.

12. A Tribunal is entitled to have regard to compiled data relating to the ongoing prevalence of hostilities/attacks/bombings in any one country or part of a country when arriving at a decision as to whether an applicant would face a real chance of suffering serious harm if returned to their country of origin. Such data assists the Tribunal in its deliberations. It is able to be used for the purposes of comparison between what might have been the situation in-country at the time of an applicant’s departure as opposed to the in-country situation at the time of Tribunal hearing.

13. The Tribunal did not consider the country information other than for the purpose of its arriving at its decision as to whether any risk to the applicant of serious or significant harm if returned to Pakistan was either real or remote. So much was reflected in paragraph [12] of the reasons of the Tribunal.

14. It made findings adverse to the applicant, as it was entitled to do. There is no merit to the Second Claim.

15. The Tribunal did not err in its consideration of what constituted a well-founded fear of persecution.

16. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

17. The Amended Application for Review is dismissed.

18. The Court will hear the parties as to costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 11 September 2020