EGA18 v Minister for Immigration

[2020] FCCA 2404

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGA18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2404

Catchwords:
MIGRATION – Application for judicial review – safe haven enterprise visa – Immigration Assessment Authority – no matters of principle – application dismissed.  

Legislation:

Migration Act 1958 (Cth), pt.7AA, s.473DC

Cases cited:

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1

FOA18 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCA 815

ASB17 v Minister for Home Affairs [2019] FCAFC 38

BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079

SG17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCAFC 29

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12;

258 FCR 551

FSG17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCAFC 29

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580

DPI17 v Minister for Home Affairs[2019] FCAFC 43

Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210;  (2017) 253 FCR 475

BJK17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCAFC 171

DPV18 v Minister For Home Affairs & Anor [2019] FCCA 2762

BLU18 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCA 706

FND17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCA 1369

DIN16 v Minister for Home Affairs [2020] FCA 406

BMA16 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCA 1938

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

ETA067 v The Republic of Nauru [2018] HCA 46

BUD17 v Minister for Home Affairs [2018] FCAFC 140

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 117

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCAFC 117

Minister for Aboriginal AffairsvPeko- Wallsend Ltd [1986] HCA 40; (1986)

162 CLR 24

M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

Applicant: EGA18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2457 of 2018

Judgment of: Judge Riethmuller

Hearing date: 21 May 2020

Date of Last Submission: 28 May 2020

Delivered at: Melbourne

Delivered on: 28 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Hammond

Solicitors for the Applicant: King & Wood Mallesons

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2457 of 2018

EGA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 20 July 2018 affirming a decision of the Minister not to grant the applicant a Safe Haven Enterprise Visa (‘protection visa’). 

Background

1. The applicant arrived in Australia in March 2013 as an unauthorised maritime arrival. He applied for the protection visa in May 2016. In August 2017, the applicant participated in an interview as part of the application process. The delegate refused his application in September 2017. 

2. The matter was referred to the IAA on 27 September 2017. The applicant’s representatives made submissions to the IAA and provided new information to the IAA on 18 October 2017.  On 20 July 2018, the IAA decided to affirm the delegate’s decision to refuse applicant a protection visa. 

Delegate’s decision

1. The proceedings before the delegate are conveniently summarised by Counsel for the Minister (at paragraph [3.3] of the Written Submissions for the First Respondent) as follows: 

   3.3 On 22 September 2017, the delegate refused the SHEV. There are several aspects of the decision that are relevant in light of the way the applicant now puts the argument:

   3.3.1. The applicant claimed to be a Shia Muslim from Upper Kurram in the Kurram Agency. He was a Pashtun and belonged to the Turi tribe.

   3.3.2. The applicant had a significant educational background and worked as a teacher. The fact of the applicant working as a teacher did not otherwise feature as part of the applicant’s claims.

   3.3.3. The applicant also claimed to be a good cricket player, who had played at a representative level.

   3.3.4. The applicant claimed to have made a speech at a Parents Day celebration in which he said that the Taliban were enemies of Shia Muslims and were responsible for what was happening in Parachinar.

   3.3.5 After that Parents Day celebration, the applicant claimed that friends had told him that he was in danger, and he then started to consider leaving the country.

   3.3.6. The applicant claimed that he could not live safely elsewhere in Pakistan because he was Shia, “an active teacher and a famous cricketer”. He claimed his life was in danger and he was on a list of targets.

   3.3.7. The delegate accepted that the applicant was a well-known cricket player in the Upper Kurram, but that this profile did not extend to other parts of Pakistan.

   3.3.8. The delegate accepted that the applicant was a teacher.  It also accepted that he had spoken out against the Taliban at the Parents Day celebration.

   3.3.9. The delegate found that the applicant was at real risk of harm “on account of his race and religion in Upper Kurram.” The delegate found this real risk “exists irrespective of his profile as a teacher and well-known cricketer”.

   3.3.10. However, the delegate did not accept that the applicant’s profile as a cricketer extended beyond the Upper Kurram. It did not extend to other parts of the country. The delegate did not accept that the applicant could be at risk of harm in Islamabad or Rawalpindi. The delegate also found that it would be reasonable for the applicant to relocate to Islamabad or Rawalpindi.

   3.3.11. The delegate found that the applicant did not meet the criteria for complementary protection, for essentially the same reasons. He was therefore refused a SHEV.

   (Footnotes omitted)

IAA decision

1. In its decision, the IAA accepted for consideration new information that had been provided by the applicant: see paragraphs [12]-[16]. 

2. The IAA set out a summary of the applicant’s claims for protection, saying (at paragraph [17]):

   17. The applicant’s claims can be summarised as follows:

   ·He is from the village of Alam Sher in Upper Kurram agency in the Federally Administered Tribal Areas (FATA) of Pakistan. His wife, parents, and a number of his siblings continue to reside in Alam Sher.

   ·He is a Shia Muslim from the Turi Pashtun tribe.

   ·He holds a Bachelor of Education, a Master of Arts in Urdu language, and a Master of Education.

   ·He was employed as a teacher at a private school in Parachinar in Upper Kurram Agency from approximately 2001 to 2004. From approximately 2004 until the end of December 2012 he was employed at the government high school in Yardah, close to Parachinar.  He taught Urdu language and social studies.

   ·The people in the village in which he lived and the schools at which he taught were also Turi.

   ·He was a very well-known cricketer in Kurram Agency. Prior to 2007, when the security situation in Kurram Agency deteriorated, he played cricket in a number of cities and places in Pakistan. He did not play cricket outside Kurram Agency after 2007, but continued to play cricket inside Kurram Agency until his departure from Pakistan. He captained a cricket team for 12 or 13 years and was recognised as best player in Kurram Agency on a number of occasions.

   ·The Taliban persecuted people in his area. They were not allowed to freely practise their Shia religion.

   ·At a school Parents Day event in 2010 he spoke about the Taliban in critical terms, blaming them for the situation in Parachinar and describing the Taliban as the enemies of Shia Islam. After this his friends and relatives told him that his life was in danger.

   ·He decided to leave Pakistan but found it difficult to leave FATA. He finally managed to leave in early 2013.

   ·He fears that if he returns to Pakistan he will be harmed in sectarian attacks targeting Shia Muslims, which occur in cities across Pakistan. A number of bombings have occurred recently. He will be recognised as a well-known cricketer and popular or active teacher in any city in Pakistan. He will also be easily identified wherever he goes as a Shia Muslim, and/or a member of the Shia Turi tribe, and/or a person from Parachinar, Kurram Agency, including because of his Shia name and other information recorded on his national identity card. These matters increase the risk that he will be targeted in attacks.

   ·He fears harm not only from the Taliban but also from other Sunni extremist groups, including Islamic State and Jamaat-ul-Ahrar.

   It would not be reasonable for him to relocate to another city in Pakistan because:

   ·He would have difficulty finding employment due to the age of his educational qualifications, the academic grades he achieved, his age, his limited IT skills, quotas restricting the number of people employed from other areas, discrimination due to his Pashtun ethnicity, Shia Turi identity and place of origin.

   ·His limited physical strength and low weight as a result of his gastrointestinal problems affects his ability to work.

   ·He suffers from mental health problems. His mental health will deteriorate if he returns to Pakistan and he will be unable to work.

   ·Relocation to Islamabad, a city where there is a Sunni population, there is some support for IS, and the Taliban are present, would exacerbate his mental health problems.

   ·He will not be able to access adequate medical treatment in Pakistan as there are very limited mental health and other health services in Pakistan.

   ·He may experience discrimination in Pakistan as a result of the stigma associated with mental illness in Pakistan.

   ·He has no family or other friends who will be able to provide support or assistance to him in Islamabad.

3. The IAA accepted that the applicant was a teacher and a recognised sportsperson in his local area. The IAA also accepted that he had made comments that were critical of the Taliban at a speech he made at his school, in front of the staff, students and parents. However, the IAA found the evidence of the applicant alleging that he received many threats after this event “lacked detail”:  see paragraph [22] of the decision.  Ultimately, the IAA found (at paragraphs [24]-[25]): 

   24. Given that the applicant claims to have made his comments about the Taliban in the context of a speech made at a school attended by Turi students in Upper Kurram Agency, a Shia Turi area, to students and their parents, I find it difficult to accept the applicant’s comments would have become known to the Taliban. Further, having regard to the history of conflict in Kurram Agency, I consider it highly likely that the views the applicant claims to have expressed in relation to the Taliban would have been widely held within the Shia Turi community in Kurram Agency. The Taliban and other Sunni extremist groups openly express anti-Shia views and target Shias in violent attacks. The statement that they are the enemies of Shia Islam and were responsible for the conditions in Kurram Agency would not appear to have been particularly controversial or inflammatory. While I accept that the Taliban have targeted Shia Muslims, including Turi Shia Muslims, in attacks, I consider it highly unlikely that the comments the applicant claims to have made in a Turi school in Upper Kurram Agency would have attracted any particular adverse attention from the Taliban, even if they had become known to them.

   25. The delegate did not make a finding as to whether or not the applicant was in fact threatened by, or of any adverse interest to the Taliban as a result of the comments he made in the 2010 speech. After considering the evidence before me, I do not accept that the Taliban became aware of the comments made the applicant in the 2010 speech. I do not accept that the Taliban threatened the applicant, or his wife, for this or any other reason. Neither do I accept that any of the applicant’s friends or relatives told him that the Taliban had threatened him or wished to kill him, or that the applicant believed he was of any particular adverse interest to the Taliban because of his speech. Even if were to accept that the Taliban did become aware of his comments, and I do not accept that that they did, I do not consider the applicant’s comments, given their nature, would have attracted the attention of the Taliban.

4. The IAA considered a letter that purported to be from the Principal of the school at which the applicant said he had taught. The IAA however placed no weight on the letter, noting that it lacked formal indicators of genuineness (such as a letterhead and contact details for the principal) and also lacked details of the purported threats (see paragraph [27] of the decision): 

   27. The content and date of this document suggest that it was prepared for the purpose of supporting the applicant’s claims for protection. It does not include any detail of the threat or threats referred to, including their number, date, or manner of delivery. It is evident that any threat must have been made prior to the applicant’s departure from Pakistan in early 2013, that is, at least three years prior to the date of the letter. The applicant has not otherwise claimed that he was threatened by any person or group because of his involvement, or perceived involvement, in teaching girls or promoting the education of girls. In view of the issues discussed, I place no weight on this document as evidence that the applicant was threatened by any person or group because he was perceived to be involved in teaching or promoting the education of girls. I do not accept that the applicant was threatened for this reason, or that he was of any adverse interest to any group or person on this basis, at the time he left Pakistan.

5. As the IAA ultimately rejected the claim that the applicant had received threats, it did not accept that the Taliban had known about, or reacted to, the speech that the applicant said he had given, saying (at paragraph [28]): 

   28. The information before me indicates that Sunni militants have occasionally targeted Shia teachers in attacks in Sindh, Balochistan and Khyber Pakhtunkhwa Provinces, and have attacked some Shia schools, including in Khyber Pakhtunkhwa Province (FN omitted).  In terms of attacks on Shia teachers and schools in Kurram Agency, there is one report before me of an attack on a school ground during a soccer game in a Shia area of Kurram Agency in 2015 in which one person was killed and several others injured. The applicant did not claim that he was threatened or harmed by the Taliban or any other Sunni militants for any reason other than his claims that he was threatened or warned because of his anti-Taliban comments in a speech in 2010, which I have not accepted. I do not accept that the Taliban had any particular adverse interest in the applicant for any reason related to his employment as a teacher at the time he left Pakistan.

6. Whilst the IAA accepted that the applicant was a cricketer known in his local area, they did not accept that he was well-known outside of that area, nor that he was of adverse interest because of his profile as a sportsperson: see paragraphs [29]-[30] of the decision.

7. The IAA also considered the applicant’s psychiatrist report, which was provided to the IAA as new information under pt.7AA of the Migration Act 1958 (Cth) (‘the Act’), and accepted by the IAA as such. However, the IAA concluded (at paragraphs [41]-[47] of the decision):

   41. The author’s diagnosis refers to the applicant’s experience of ‘multiple horrific incidents and threats to his life’. His diagnosis appears to be based largely on the account of events provided to him by the applicant. He refers in his diagnosis to traumatic incidents that were not mentioned in the delegate’s decision, in the applicant’s SHEV application, SHEV interview, or post-SHEV interview submission to the delegate. I note that, for the reasons discussed above, I have not accepted that the applicant received, or was told of, any threats in Pakistan.

   42. The applicant told the author of the report that he had witnessed a suicide attack in Parachinar in around 2011 or 2012 in which 40 or 50 people were killed. He said he recalled being surrounded by dismembered body parts. He said he had seen bodies of persons killed and displayed by the Taliban. He said a missile had struck a neighbouring home and in the aftermath of this attack, he had carried his dead neighbour’s severed torso. The applicant told the author of the report that he had not mentioned these incidents before because he avoided talking or thinking about these events.

   43. The author of the report found that the applicant had a strong urge to avoid talking about these events as doing so could trigger reliving his experiences. He suggested that the extent to which the applicant avoids talking about his experiences has impaired his ability to communicate his symptoms and condition to others. He suggested that this was common in sufferers of PTSD. He suggested that the applicant’s avoidance of thinking about these experiences limits his awareness of the extent to which he suffers from symptoms related to PTSD. I find it somewhat difficult to accept that the applicant’s desire to avoid mentioning these specific events has prevented him from discussing his symptoms, or his mentioning these incidents or his experiences even in general terms.

   44. The applicant’s claims for protection in Australia centre on his fear of harm from the Taliban in Pakistan. As discussed, he received the assistance of his then legal representative in preparing his SHEV application and making a submission to the delegate following the SHEV interview.  His representative also attended the SHEV interview. I consider that the applicant would have been aware of the importance of providing a complete account of his experiences involving the Taliban, and any harm he experienced in Pakistan, when putting forward his claims for protection. I therefore find it very difficult to accept that the applicant would have withheld information about these claimed incidents in the context of his application for protection, notwithstanding their traumatic nature, or the trauma he claims to have experienced as a result, had they in fact been experienced by the applicant. The applicant was asked to describe any harm he experienced in Pakistan in his SHEV application. As discussed, he referred to being told that his life was in danger because the Taliban had heard of his speech at school. He also referred generally to the Taliban killing innocent civilians in his area in the period from 2007 to 2013. During the SHEV interview, the delegate asked the applicant whether anyone he knew in Kurram Agency was harmed. The applicant said that a professor was killed in a very bad way, he was cut and then killed. I find it surprising that the applicant was able to refer to these events, but could not, due to his mental health conditions, refer to the events he mentioned in the interview with the psychiatrist. I note that in the entry interview, when discussing his reasons for leaving Pakistan, the applicant stated that nothing had happened to him in Pakistan, other than the claimed warning that the Taliban would kill him because of his anti-Taliban speech. When asked if there were any other reasons for leaving Pakistan, he said that Shia Muslims in every city in Pakistan were being targeted. I am not persuaded that the applicant did not mention these events in his SHEV application, SHEV interview, post-SHEV interview submission to the delegate, or entry interview for any reason related to his mental health.

   45. The applicant told the psychiatrist that Pashtun culture placed a high value on bravery. Discussing traumas such as he experienced was frowned on as it may appear weak. For this reason, he did not discuss the specific traumatic experiences he suffered with his friends. I have some doubt as to whether these matters would have prevented the applicant from describing his experience of trauma in the context of his application for protection, a context in which the applicant’s experiences would not have been discussed with other persons of his own culture, his experiences could be described in writing, and in which he was assisted by his legal representative. I note that the applicant was prescribed Escitalopram in May 2017, indicating that he was able to discuss some mental health concerns with his doctor at this time.  As discussed, the applicant demonstrated a willingness to discuss his health during the SHEV interview, and provided sensitive medical information to the delegate, including about his experience of headaches and stress related to his gastrointestinal problems and use of Escitalopram, in a post-SHEV interview submission to the delegate. I do not accept that the applicant did not refer to the trauma he claims to have experienced as a result of traumatic events in Pakistan, or to these events themselves, because of any emphasis placed on bravery or strength in Pashtun culture.

   46. The matters discussed lead me to question the veracity of the statements made by the applicant to the author of the psychiatric report concerning his involvement in and witnessing of traumatic incidents in Pakistan. I note also that the psychiatric report indicates that the applicant told the author that after he gave the anti-Taliban speech in Pakistan, his closest school friend, a Sunni Muslim, telephoned him and told him that he was on the Taliban’s list of people who were to be killed. This account is quite different to that given by the applicant in his SHEV application and the SHEV interview. For the reasons discussed, I have not accepted that any of the applicant’s friends or relatives told him that the Taliban had threatened him or wished to kill him because of his speech, however I consider this further and quite significant variation in the applicant’s account of this claimed event casts additional doubt on the credibility of the information provided by the applicant to the author of the report.

   47. I am not satisfied that the applicant provided an honest account of his experiences or fears to the author of the psychiatric report, notwithstanding the author’s assessment that the history provided by the applicant was credible. I note that while the author of the report is expert in his field, he did not have access to all of the information that is before me. I do not accept that the applicant witnessed or experienced the traumatic incidents referred to in the psychiatrist’s report, that he experienced trauma as a result of those incidents, or that he received any threats to his life. As mentioned, I have not accepted that the applicant was threatened for any reason prior to his departure from Pakistan. Neither do I accept that the applicant believed himself to be the specific target of the Taliban.

1. Despite the difficulties with the specifics of the applicant’s case, the IAA concluded that, as he was a Shia Muslim, he would be at serious risk of harm if he returned to his home area:  see paragraph [61] of the decision.  However, the IAA also concluded that he would be reasonably able to relocate to Islamabad: see paragraphs [84]-[93].

Grounds for review

1. The applicant’s case was presented in a way that made an enormous number of references to small details of the evidence before the IAA, making  the submissions redolent of a case for merits review. In these reasons I have, as best I am able, sought to identify the judicial review arguments from the morass of materials referred to in the particulars and submissions.

2. The applicant raises three grounds for judicial review, however grounds 1 and 2 are, in substance, alternative statements of the same substantive complaint.  It is therefore convenient to deal with those grounds together.

Grounds 1 and 2

1. Grounds 1 and 2 of the Application are set out in the follow terms: 

   1. The IAA fell into jurisdictional error by acting unreasonably in the exercise of its discretion, or alternatively, constructively failing to exercise its jurisdiction, in failing to consider the exercise of its powers under s 473DC(3) of the Migration Act 1958 (Cth) to conduct an interview with the Applicant.

   a. At [31] of his submissions to the IAA, the Applicant expressly requested that the IAA “consider the exercise of its discretion under section 473DC(3)(b) to allow for an interview to be conducted in person”.

   b. The IAA made no reference to this request in its decision, nor did it refer to any consideration about the exercise of its discretion under section 473DC(3)(b) to allow for an interview. In the circumstances of this case, the inference is available that no such consideration was given.

   c. The IAA decision made a number of material conclusions about the Applicant’s mental health, an issue that was not before the Delegate for determination. The IAA’s conclusions concerning the Applicant’s mental health were central to the IAA’s conclusion that the Applicant could safely and reasonably relocate to Islamabad.

   Several of those conclusions related to matters on which it was unreasonable not to afford the Applicant an opportunity to comment, including:

   • “I do not therefore accept that the applicant’s perception of such a threat will cause his mental health to deteriorate on his return to Pakistan” (CB 285 at [82]);

   • “I am not satisfied that the applicant’s mental health will deteriorate for any reason on his return to Pakistan” (CB 285 at [83]);

   • “the applicant’s mental health problems and symptoms are long standing… the applicant was able to work and otherwise engage in life without specialist mental health treatment prior to October 2017” (CB 284 at [78]);

   • “I am not satisfied that the applicant’s mental or physical health conditions have prevented him, or currently prevent him, from working as an Uber driver, or playing cricket” (CB 279 at [57]);

   • “I am not satisfied that the applicant’s mental or other health issues will prevent him from securing suitable employment in Pakistan such that his capacity to subsist will not be threatened” (CB 286 at [84]); and

   • “I am not satisfied that he would experience any harm in Islamabad as a result of discriminatory treatment related to his mental health” (CB 286 at [87]).

   d. The IAA made several adverse credibility findings, which were material to the IAA’s ultimate conclusions and some of which were contrary to findings made by the Delegate. In all the circumstances, it was unreasonable not to afford the Applicant an opportunity to comment on them. Those findings included:

   • “Neither do I accept that any of the applicant’s friends or relatives told him that the Taliban had threatened him or wished to kill him” (CB 271 at [25]): this claim had been expressly accepted by the Delegate (CB 180-1);

   • “I place no weight on this document [CB 105] as evidence that the applicant was threatened by any person or group because of his involvement, or perceived involvement, in teaching girls or promoting the education of girls” (CB 272 at [27]): no such credibility finding was made by the Delegate, who accepted the Applicant’s claims about his employment as a teacher, both during the protection visa interview (Macdonald Affidavit at page 31.01-03) and in his decision (CB 180); and

   • “I am not satisfied that the applicant provided an honest account of his experiences or fears to the author of the psychiatric report … I do not accept that the applicant witnessed or experienced the traumatic incidents referred to in the psychiatrist’s report, that he experienced trauma as a result of those incidents, or that he received any threats to his life” (CB 277 at [47]): this was at odds with the Delegate’s finding that the Applicant’s account was credible (CB 180, 181, 182), and relied on supposed inconsistencies which were not supported by the documents before the IAA.

   e. The concerns of the IAA on these matters were peculiarly amenable to resolution by the Applicant at an interview, at which the IAA could have taken into account demeanour based considerations.

   2. In the alternative to ground 1, if the Court considers that the IAA did consider the exercise of it powers under s 473DC(3) of the Migration Act, then the IAA fell into jurisdictional error by reason of a legally unreasonable decision to exercise its discretion not to conduct an interview with the Applicant.

2. In support of these grounds, the applicant says, (in the particulars) that he had expressly requested that the IAA exercise its discretion to interview him in person under s.473DC(3)(b) of the Act (see paragraph [31] of his submissions to the IAA). The applicant submits that the IAA did not exercise its discretion to invite him to an interview and did not provide its reasons for declining to do so in its decision. As a result the applicant argues that it can be inferred that the IAA did not consider inviting him to provide new information by way of an oral interview. The applicant points to a number of circumstances relevant to the IAA’s exercise of discretion under the section.

3. The applicant identifies that the IAA decision makes a number of findings with respect to the applicant’s mental health and that his mental health was not an issue that was before the delegate.  The applicant notes that the IAA made a number of findings rejecting aspects of his claim relating to mental health:

   a)The IAA rejected the argument that his mental health would deteriorate if he returned to Pakistan: paragraphs [82] – [83];

   b)The IAA rejected claims that the applicant’s mental health would prevent him from working: see pararaphs [57], [78], and [84]; and

   c)The IAA did not accept that he would experience harm as a result of discrimination: see paragraph [87].

4. The applicant also points to the following adverse credibility findings by the IAA, which were contrary to findings by the delegate: 

   a)the IAA rejected the applicant’s evidence that his friends and relatives had told him of the Taliban’s threats (at paragraph [25]), which had been accepted by the delegate (Court Book (‘CB’) page 180);

   b)the IAA rejected the alleged letter from the principal (at paragraph [27] of the decision), whereas the delegate appears to have generally accepted the applicant’s evidence as to his employment as a teacher; and

   c)the IAA rejected the applicant’s evidence with respect to the events he was said to have witnessed or experienced that supported the psychiatric report (see paragraph [27]), which the applicant argues was at odds with the delegate’s finding which the applicant says relied upon claimed inconsistencies that he argues are not supported by the documents before the IAA.

5. In the submissions to the IAA, the applicant’s representative said (at CB page 222) that:

   4. … Mr Ali presented to me as underweight and his appearance and demeanour suggested that he may be unwell (the enclosed photograph, taken on 18 October 2017, is provided to demonstrate his physical appearance). In the circumstances, [Those circumstances also include my previous knowledge from working with this caseload that there is a high rate of mental illness for persons from Kurram Agency – please see footnotes 4 & 5]. my advice to Mr Ali included seeing a psychiatrist, and I assisted him to do so.

6. At the end of lengthy submissions, which were clearly not from a pro forma, but carefully addressed to the particular circumstances of the applicant’s case, the applicant’s solicitor says:

   31. We submit that the IAA should consider the exercise of its discretion under section 473DC(3)(b) to allow for an interview to be conducted in person. Mr Ali demonstrates traits that lend weight to his claims that can be observed in person such as his weight, the sunken and bloodshot eyes, his dry and creased skin, tense posture, etc.

7. The IAA addressed each of the requests set out in the solicitor’s submissions for the applicant to provide new information at paragraphs [5] to [16] of the decision.  The IAA allowed some new information and rejected other pieces of new information. Paragraphs [6] to [11] of the decision dealt with the applicant’s expert evidence in relation to his mental health and the diagnoses of Post Traumatic Stress Disorder (‘PTSD’) and Major Depressive Disorder. However, the IAA does not mention the request of the applicant to give oral evidence, the solicitor’s observations of the applicant’s demeanour, nor the recent photograph that was provided of the applicant.

8. The IAA is generally required to conduct the reviews on the papers only, but has a discretion to take oral evidence if it so decides. There is no obligation on the IAA to provide reasons for deciding whether or not to invite an applicant to provide new information orally: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at paragraph [16] (consistently with the approach taken in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1). However, in the absence of written reasons as to why the IAA did not receive oral evidence from the applicant, a challenge to the conduct of the review by the IAA may rely upon inferences that can be drawn from the circumstances of the case and the decision made, to demonstrate that the IAA either failed to consider exercising its discretion or exercised it in a way that was legally unreasonable.

9. In FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815 (‘FOA18’) White J drew the inference that the IAA had not considered the applicant's request to provide oral information, as the IAA had considered various aspects of the submissions, but not noted the relevant request, saying at paragraph [46]:

   46. Proof that the IAA member did not consider exercising the power in s 473DC(3) is essential for a claim that the omission to do so was unreasonable: ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [46]‑[49]. Counsel for the applicant contended that the failure by the IAA member to make any reference to s 473DC(3), let alone to make any mention of having considered the exercise of the power, was sufficient to indicate that it had not been considered. There may be cases in which the mere absence of reference by an IAA member to consideration of s 473DC(3) will be sufficient to support an inference that the power was not considered. Whether that be so does not need to be considered as, in my view, an implication arises from the IAA’s reasons in the present case that it was not considered. With respect to the information before the IAA, the member said:

   [3]    I have had regard to the material given by the Secretary under s.473CB of [the Act].

   [4]    On 4 July 2018 the applicant’s representative provided a submission without argument in support of the applicant’s claims that he was kidnapped by the Taliban primarily as a result of his Shia religion.  The submission also contains argument (sic) about the delegate’s finding that he could safely relocate to Islamabad or Rawalpindi.  I have had regard to these arguments in this decision.  I do not consider that the submission contains any new information. 

   47.    These paragraphs suggest that the IAA member was taking some care to indicate the material which had been considered and the propriety of doing so.  Given this evident care, had the IAA member adverted to the question of whether to invite the applicant to give oral evidence on the issue concerning his kidnapping, it is natural to expect that it would have been mentioned in this context.  That being so, an inference fairly arises from its absence that it was not considered: cf ASB17 at [46]‑[49].

10. In ASB17 v Minister for Home Affairs [2019] FCAFC 38 the IAA had simply recorded that ‘No further information was obtained or received’: see paragraph [48]. The Full Court found that this was sufficient in the context of the case as the word ‘obtained’ suggested that the IAA had turned their mind to the discretion in s.473DC and the IAA’s reasons were otherwise silent on the issue

11. The present case has many similarities to that of FOA18 in that the IAA has considered all of the requests by the applicant (through his solicitor) to provide new information (save for the request to give oral evidence) and gave detailed reasons with respect to each. The submissions were carefully drawn by the solicitor and related to the particular circumstances of the applicant. The submissions were not a bare request for the applicant to be interviewed, but a carefully drawn document with references to the applicant’s demeanour (as observed by the solicitor) which was such as to lead to a photograph of the applicant being provided to the IAA, together with medical reports as to his mental health. All of these matters tend toward an inference that the IAA did not consider exercising the discretion to obtain new information from the applicant by way of an oral hearing. 

12. However, for the applicant to succeed, the failure of the IAA to consider giving him the opportunity to provide oral evidence must have been legally unreasonable (see FOA18 at paragraph [61]), and in this sense White J said that the ‘cases in which it is found tend to be exceptional’: see paragraph [62].

13. It is important to recognise that the process, enacted by Parliament in Part 7AA of the Act, is not identical to that which would be adopted by a court hearing a case. It is, of course, open to Parliament to design such a process as it considers appropriate for the purpose of administrative decision-making.

14. As O’Bryan J said in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 (as approved by the Full Court in SG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29):

    [31] On a number of occasions, the Court has considered whether a failure by the Authority to seek additional information from a visa applicant when conducting a review is unreasonable in the legal sense. Each case turns on its own facts. However, it is possible to distil the following principles from the decisions.

    (a) The legislative scheme of review established by Part 7AA (review by the Authority) differs from the legislative scheme of review established by Part 7 (review by the Administrative Appeals Tribunal). In particular, under Part 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. However, those principles are not directly applicable to a review under Part 7AA given the different statutory requirements for the review. Part 7AA of the Act is an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority”: DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551 at [69] (DGZ16).

    (b) As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration & Border Protection [2018] FCAFC 222 at [74] .

    (c) However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. An example is afforded by Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was “necessary in order to complete the review”: DGZ16 at [70].

    (d) Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17) . In that case, the delegate had made a positive assessment of the appellant’s demeanour at the interview and the delegate’s acceptance of certain claims by the delegate was based primarily on the delegate’s assessment of the appellant’s demeanour (DPI17 at [46]). Further, during the course of the delegate’s interview with the applicant, the delegate indicated that certain discrepancies in the applicant’s evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate’s positive assessment of the applicant’s demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant’s evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).

15. Importantly, in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 (‘DGZ16’) the Full Court said, at [72]:

    72. In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

    See also FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 at [60] (‘FSG17’).

1. In DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 the Full Court (endorsed the observation of Lee J in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [17]), said that:

   74. … if the IAA were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be that the IAA would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the fast track review process.

2. However, DGZ16 and FSG17 should not be taken ‘as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material’: see DPI17 v Minister for Home Affairs[2019] FCAFC 43 (‘DPI17’) at [41].

3. The facts in Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (‘CRY16’) are most unusual: the decision turned upon a point (whether relocation of the applicant to a particular area was reasonable) that had never been an issue prior to the IAA decision.  Thus, in CRY16 it is apparent why it was legally unreasonable not to invite the applicant to provide ‘new information’, as the applicant had never provided information on this point. 

4. Other examples before the Full Court appear in BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 at [44] and in DPV18 v Minister For Home Affairs & Anor [2019] FCCA 2762, where the IAA relied upon country information that was only published after the submissions of the applicant were sent to the IAA.

5. In DPI17 there was an important concession made by Counsel for the Minister, that the IAA had failed to consider exercising its discretion under s.473DC of the Act: see paragraph [44]. The core factual issue was whether or not the applicant had been sexually assaulted. The IAA came to a different conclusion to that of the delegate in circumstances where the delegate had specifically relied upon the applicant's demeanour in accepting the applicant's evidence, despite there being discrepancies in the evidence given. There are two important aspects to the reasons that are set out in paragraph 46:

   […]

   (3) … if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.

   […]

   (5) … some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. … while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.

6. The earlier point, as Burley J sets out in BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706 at [46], was significant as it denied the IAA the capacity to critically analyse the credibility issues on the papers. Griffiths J, in FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2019] FCA 1369 (‘FND17’) identifies that there is a difference between the ability to carefully analyse the evidence given on a recording, from which the IAA can make its own conclusions on the weight to be afforded to the evidence, and credibility findings resting heavily upon observations of demeanour: at paragraph [40]. On the latter point, Griffiths J in FND17 at [37] explains that the conduct of the delegate in DPI17, that is, saying to the applicant that the inconsistencies were not major, ‘presumably influenced the applicant in not addressing the issue’ in post-interview submissions on that point (see also DIN16 v Minister for Home Affairs [2020] FCA 406 per Markovic J at paragraph [56] (‘DIN16’)). 

7. It is important to take care when reading DPI17, as it is not authority for the proposition that the IAA ought to consider requesting further information orally from every applicant where the IAA comes to a different view as to their credibility to that reached by the delegate.  The delegate in DPI17 identified the body language and oral delivery of the applicant as important factors in deciding to accept his credibility and the delegate told the applicant that his credibility was accepted despite inconsistencies, and did not set out the reasoning in this regard in the decision. 

8. In BMA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1938 (‘BMA16’) Snaden J was not satisfied that the IAA had acted in a way that was legally unreasonable in not seeking further information, his Honour said:

   28. I accept, as counsel for the appellant urged, that there are circumstances inherent in this case that incline (or might incline) in favour of an exercise of the discretion for which s 473DC of the Act provides. Chief amongst those are that the appellant was unrepresented at the Delegate Interview, that new information might have assisted the appellant to avoid the adverse credibility findings that the Authority made, and that an exercise of the discretion would likely not have involved any great burden upon the Authority. The potentially significant consequence for the appellant—resulting, as it did, in the rejection of his Visa Application—is another such circumstance.

   29.    I do not, however, accept that those considerations are sufficient to clear the high hurdle that the appellant must clear in order to succeed on this ground. There are other factors that make clear that the Authority’s failure in this case to get or consider getting new information was within a course that was reasonably open to it (that is to say, was not a course attended by legal unreasonableness). Plainly, the Authority was obliged to consider the Visa Application afresh and come to its own view as to whether or not the Delegate’s Decision should be affirmed on its merits. The credibility of the claims advanced by the appellant was relevant to that end. By the time that the Visa Application had progressed to the IAA Review stage, the appellant had made two statements about the events and circumstances that he said warranted its success. The Authority was under no statutory obligation to give the appellant notice that it was inclined not to accept certain parts of his narrative: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551, 569 [72] (Reeves, Robertson and Rangiah JJ). Nor was it obliged to get, request or accept any new information (whether at the appellant’s request or otherwise). It was obliged to discharge its function in a manner consistent with the statutory objective of providing a mechanism of limited review that (amongst other things) was efficient and quick: the Act, s 473FA(1).

   30.    Those circumstances acknowledged, it cannot be said that the Authority had only one course reasonably open to it in the present case (namely, to invite the appellant to submit new information). Of course, it was open to the Authority to adopt that course had it been minded to; but its failure to do so does not bespeak legal unreasonableness and the decision that it thereafter made cannot be impugned as the product of jurisdictional error.

9. I turn then to consider the use that the IAA has made of the evidence before it. There are two areas identified by Counsel for the applicant:

   a)Findings as to the applicant’s credibility; and

   b)Findings as to the applicant’s mental health.

10. Counsel for the applicant points to findings of the delegate where:

    a)The delegate described the applicant’s account (at CB pages 180-181) as:

    … At interview the applicant provided a credible account of the views he expressed about the Taliban in Upper Kurram and the warnings he received… (emphasis added)

    b)The delegate expressed no concerns about the alleged reference from the school principal, accepting the applicant’s account of his employment as ‘credible’ (at CB page 180) saying:

    … With his application he provided a number of certificates and references to support this claim and at interview provided a credible account of his employment…

    c)The delegate told the applicant at an interview that (at T31.01):

    Okay. So I, from what you’ve told me today. I’d accept that you would have difficulties in your home area because you’re a teacher, you’re well known, you’ve taught girls and that you’re a well-regarded cricketer.

    What, for me in consideration, is it, it appears to me that, and this is what I’m asking if you wish to comment, asking allowing you to comment on

    These appear to be things localised to Kurram Agency […]

11. The applicant also sets out in detail arguments against the fact finding of the IAA at paragraphs [20] and [21] of the Outline of Argument filed on 7 May 2020, however all of those points appear to effectively pursue merits review of the IAA’s decision.

12. A credible account will usually be one that is in accord with the surrounding evidence. In less common cases, such as DPI17, what leads to the acceptance of an account is the impact of the demeanour of the witness when giving the evidence. I do not accept that the mere statement by the delegate in this case, that the applicant had given a ‘credible’ account in various respects, demonstrates that the demeanour of the applicant in giving evidence was a central factor in the case, in the way demeanour was at the forefront of the assessment of the evidence in DPI17. Of course, the fact that it is possible that a witness’s demeanour may ultimately persuade review panel does not mean that the IAA must provide an opportunity to give oral evidence in every case – such a course would undermine the clear statutory intent as to the nature of the process under this part of the Act. It is when demeanour is central to the findings of the delegate that the IAA must consider an oral hearing.

13. The statement by the delegate during the interview about what would be accepted was in the context of querying whether the applicant would be known outside of his region, but nonetheless indicated an acceptance that he would have difficulties in his home area.    

14. Counsel for the Minister notes that many of the claims made by the applicant, which were accepted by the delegate, were also accepted by the IAA, for example, that the applicant was a well-known cricketer in his local area and a teacher.  It was also accepted by the delegate that he had given a speech criticising the Taliban at a school event. The difference in findings between the delegate and the IAA was that the delegate did not accept that the applicant had a profile outside of his local area (the Kurram Agency), and did not accept that the applicant had been threatened by the Taliban. However, the reason for the applicant’s ‘difficulties’ was always fears of harm from the Taliban.

15. The main focus of the delegate’s decision was whether it was reasonable for the applicant to relocate, based upon an acceptance of a real risk of harm in the applicant’s home area. Indeed, this was the only issue after page 30 of the transcript of the interview with the delegate.  A review of the applicant’s solicitor’s submissions to the IAA shows that the case was approached on the basis that the real issue related to relocation, not the risk to the applicant in his home area (CB pages 221-231). There does not appear to be any statement in the documents sent from the IAA that it was open to the IAA to reject matters that the delegate may have accepted or indicated they would accept at an interview. 

16. In a sense, the facts of this case are factually opposite to the circumstances considered in CRY16: relocation was at issue before the delegate, whereas risk of harm was the decisive issue before the IAA. However, risk to the applicant in his home area always had to be a central issue in this case, not one that arose only on particular findings of the delegate or the IAA, unlike in CRY16 where relocation only arose before the IAA. 

17. The facts of the present case are, however, circumstances of the type contemplated by the rational given in para [46](5) of DPI17, as explained by Griffiths J in FND17 at paragraph [37] and Markovic J in DIN16 at paragraph [56]. However, the circumstances here are without any significant reliance upon demeanour. Moreover, the matters in dispute had been the subject of evidence by the applicant in his statement before the delegate’s interview (at CB page 93) and for most of the first 29 pages of the transcript of the delegate’s interview. In this respect the case is similar to that considered by Snaden J in BMA16.  I am persuaded, as Snaden J found in BMA16, that whilst it would have been open to the IAA to invite the applicant to an oral interview, it was not the only course that was reasonably open to the IAA on the facts of this case.  Ultimately I am not persuaded that the course adopted by the IAA was legally unreasonable in this respect.  In coming to its conclusions the IAA relied upon surrounding facts and circumstances relating to the applicant’s behaviour. Demeanour of the applicant was never central in the way that it was in DPI17.

18. The applicant also argues that the IAA erred in not offering him an opportunity to give oral evidence as a result of issues arising out of the evidence surrounding his claim to suffer mental illness.  The IAA did accept the medical reports going to the Applicant’s mental health as new information, but did not accept that his mental health was as severe as set out in the reports, nor that it would deteriorate if the applicant returned to Pakistan.

19. The IAA discussed the applicant’s mental health issues at length from paragraphs [31] to [57] of the decision. It is difficult to argue that the IAA needed oral evidence from the applicant in order to test the psychiatrist’s professional observations of the applicant at the time of his interview with the applicant. 

20. The IAA did not reject the psychiatrist’s evidence as to his observations, but relied upon other evidence to conclude that the degree of functioning of the applicant was greater than that reported to the psychiatrist.  In these circumstances it is difficult to see how it could be said to be legally unreasonable to fail to provide the applicant with an oral interview in order to consider what he said about the matters he told the psychiatrist.  If this were a basis for requiring an oral interview, then any applicant who provides the IAA with an opinion relying, at least in part, upon the their version to the professional, would require an oral interview.

21. I therefore find that the applicant has not made out either of these grounds.

Ground 3

1. Ground 3 is set out in the following terms:

   3. The IAA failed to properly consider all material provided to it, and therefore failed to perform its statutory task under s 473DB of the Migration Act.

   a. At CB 271 (at [25]), in stating that “[t]he delegate did not make a finding as to whether or not the applicant was in fact threatened by, or of adverse interest to the Taliban” and in concluding that “[n]either do I accept that any of the applicant’s friends or relatives told him that the Taliban had threatened him or wished to kill him”, the IAA failed to consider the following comments or findings by the Delegate that:

   • “the Taliban or other Sunni militants did not have an ongoing adverse interest in him” (emphasis added) (CB 184);

   • “the applicant provided a credible account of the views he expressed about the Taliban in Upper Kurram and the warnings he received” (CB 181);

   • “I have accepted that the applicant expressed anti-Taliban views in 2010 and was warned by friends and relatives that the Taliban would kill him” (CB 184); and

   • “I’d accept that you would have difficulties in your home area because you’re a teacher, you’re well known, you’ve taught girls and that you’re a well regarded cricketer” (Macdonald Affidavit, page 31.01-03).

   b. In concluding, at CB 271 (at [25]), that “I do not accept that the Taliban threatened the applicant, or his wife, for this or any other reason”, and at CB 272 (at [27]), that no weight should be placed on the document at CB 105 “as evidence that the applicant was threatened by any person or group because he was perceived to be involved in teaching or promoting the education of girls” (including because of concerns about the authenticity of that document (at [26])), the IAA failed to consider:

   • the resignation letter of the Applicant’s wife (CB 104), in which she explained that she “can’t continue my service due to some security threats from the terrorists, as they are against female education. In addition to, they have threatened me to shoot, if I continue my service [sic]”;

   • the comments made by the Applicant during his protection visa interview (Macdonald Affidavit, page 21.04-05, page 26.02-04, page 34.41-43) including that his wife’s problems were “because of” him;

   • the fact that the signature which appears on the document at CB 105 also appears on other documents the authenticity of which was not questioned (see CB 31, 103, 116);

   • the comments made by the Delegate during the Applicant’s protection visa interview that “I’d accept that you would have difficulties in your home area because you’re a teacher, you’re well known, you’ve taught girls and that you’re a well-regarded cricketer” (Macdonald Affidavit, page 31.01-03); and

   • the Delegate’s finding that “[w]ith his application [the Applicant] provided a number of certificates and references to support this claim and at interview provided a credible account of his employment” (CB 180).

   c. In stating at CB 278 (at [55]) that “[t]he psychiatric report of 18 October [2017] does not refer to a recent deterioration in the applicant’s condition”, the IAA failed to consider the following indications in that report that there had in fact been a recent deterioration in the Applicant’s mental health condition:

   • the Applicant had had two car accidents in April and September 2017 (CB 214, at [15]);

   • the Applicant had played cricket in Australia only “up until the past year” (CB 214, at [18]);

   • the Applicant had started taking escitalopram, an anti-depressant, since around May 2017 (CB 215, at [22], [24]);

   • the Applicant first saw a psychiatrist in October 2017 (CB 215, at [22]); and

   • the Applicant had started smoking and drinking alcohol in the previous six months (CB 215, at [25]).

   d. In relying at CB 271 (at [22]) on “the fact that the applicant continued to work as a teacher in Kurram Agency until shortly before his departure from Pakistan”, the IAA failed to consider the Applicant’s attempts to leave the country earlier, as described or referred to in:

   • the Applicant’s arrival interview (CB 23);

   • a visa obtained by the Applicant for Thailand in 2012 (CB 159);

   • the Delegate’s decision record (CB 178-9); and

   • the Applicant’s protection visa interview (Macdonald Affidavit, page 24.47- 25.16).

   e. In concluding at CB 272 (at [28]) that “I do not accept that the Taliban had any particular adverse interest in the applicant for any reason related to his employment as a teacher” (having referred to a paucity of evidence of Sunni attacks on Shia teachers), the IAA failed to consider the Applicant’s reference during his protection visa interview (Macdonald Affidavit at page 25.27-40) to a teacher known to him who was killed by Sunni militants.

   f. In concluding at CB 276 (at 44) that “I therefore find it very difficult to accept that the applicant would have withheld information about these claimed incidents in the context of his application for protection … had they in fact been experienced by the applicant”, at CB 276-7 (at [46]) that “[t]his account is quite different to that given by the applicant in his SHEV application and the SHEV interview”, and at CB 277 (at [47]) that “I am not satisfied that the applicant provided an honest account of his experiences or fears to the author of the psychiatric report … I do not accept that the applicant witnessed or experienced the traumatic incidents referred to in the psychiatrist’s report, that he experienced trauma as a result of those incidents, or that he received any threats to his life”, the IAA failed to consider the Applicant’s:

   • witness statement accompanying his visa application (at CB 93 (at [7])) stating that “I am nog [sic] going into detail from 2007 to 2013 what been happened in Parachinar area. You are well aware of that. Taliban terrorist were responsible for killing innocent civilian mostly Shia community members”;

   • comments during his protection visa interview, including as to fighting in his local area, regular heavy gun fires, extended school closures and pressure to be involved in fighting (Macdonald Affidavit at page 28.07-29.17); and

   • comments during his protection visa interview concerning people he knew being killed (Macdonald Affidavit at page 25.27-40).

   g. In raising concerns about apparent inconsistencies or lack of detail in the Applicant’s account of his experiences in Pakistan, including at CB 270-1 (at [21]), CB 271 (at [22]) and CB 276-7 (at [46]-[47]), the IAA failed to consider the Applicant’s psychiatrist’s finding (CB 216 at [35]) that the Applicant was “highly distressed and distant (less focussed) when discussing the horrific events that he had experienced. He was less coherent during the most horrific parts of his story, and these required some clarification, which increased his distress”.

1. This ground is in the style of a complaint that the decision was without regard to all of the significant evidence within the reports, or that the conclusions of the IAA is either illogical or legally unreasonable: see  Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 per Robertson J; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (‘MZYTS’); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174.

2. In ETA067 v The Republic of Nauru [2018] HCA 46, Bell, Keane and Gordon JJ explained (at [13]-[14]) that a decision maker does not have to refer to every piece of evidence in their reasons for decision, saying:

   13.    The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

   14.    Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.

3. Whilst a decision maker does not have to refer to every piece of evidence, and can prefer some evidence over other evidence, the Full Court in MZYTS pointed out:

   49.    The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

   50.    ... In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

4. When a decision maker refers to a lengthy document this indicates consideration of its contents, but does not necessarily determine the issue, as some parts may be of such significance as to require specific reference or discussion: see generally BUD17 v Minister for Home Affairs [2018] FCAFC 140 (‘BUD17’) at paragraph [62].

5. The legal consequences flowing from a finding that the Second Respondent failed to consider a document, or a critical part of a document will, as the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at paragraph [77], ‘depend on the circumstances of the case and the nature of the document’, noting the statement of Mason J in Minister for Aboriginal AffairsvPeko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [40], that there is not error where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. In order to carry out this task, it is necessary, as the Full Court set out in BUD17 at [65], to consider:

   (1)     the cogency of the evidentiary material; and

   (2)   the place of that material in the assessment of the review applicant’s claims.

6. Counsel addressed the extensive particulars under three headings.

Particulars (b), (d) and (e)

1. In these particulars the applicant challenges the findings of the IAA where it rejected the claim that the Taliban threatened the applicant or his wife (at paragraph [25] of the decision).  The IAA’s reasons for this finding and the evidence provided by the way of documents are set out in paragraphs [19] to [28] of the decision. 

2. The applicant argues that the evidence of his wife temporarily resigning from her position as a teacher was significant and should have been referred to by the IAA.  The applicant’s wife resigned ‘temporarily’ in 2013, three years after the incident that is relied upon by the applicant and the year after he had left Pakistan. The applicant’s wife had remained in Pakistan and is not an applicant for a visa in Australia. I am not persuaded that this evidence was of such importance that its absence from the IAA’s reasons demonstrates error. In any event, having rejected the applicant’s claims of being threatened, any alleged threat to his wife (leading only to temporary resignation) would not alter the outcome of the application.

3. The IAA also took into account that the applicant had not left soon after the alleged threat in 2010, but 2 years later.  In the intervening period he continued to work and play cricket: Transcript at 17:38-40; IAA at [22] CB page 271. The applicant points to evidence, given at the interview with the delegate, to the effect that he had started to think about leaving the country but didn’t have opportunities to leave and had ‘tried a lot’.  None of this evidence is compelling in providing a reasonable explanation for why he would not have left sooner, had the threat he relied upon been a real threat of serious harm. That the IAA didn’t specifically recount this evidence is unsurprising.

4. The applicant argues that the IAA should not have rejected the letter purportedly from a school Principal. However, the IAA considered the letter in some detail, saying:

   26. The applicant provided with his SHEV application a document purporting to be a letter dated 30 May 2016 from the Principal of the high school at which he taught from approximately 2004 to 2012. The document is informal in appearance, having no letterhead or footer, nor any contact details for the purported author or the school of which he is said to be Principal. Under the signature on the letter is a stamp containing the words ‘Head Master, Govt: High School Yardah, Kurram Agency’. The letter indicates that the applicant was involved in promoting the education of boys and girls. As this was unacceptable to terrorists, who opposed the education of girls, terrorists threatened the applicant that he would lose his life. As a result, ‘the elites’ told the applicant to move abroad, hence he had sought asylum in Australia.

   27. The content and date of this document suggest that it was prepared for the purpose of supporting the applicant’s claims for protection. It does not include any detail of the threat or threats referred to, including their number, date, or manner of delivery. It is evident that any threat must have been made prior to the applicant’s departure from Pakistan in early 2013, that is, at least three years prior to the date of the letter. The applicant has not otherwise claimed that he was threatened by any person or group because of his involvement, or perceived involvement, in teaching girls or promoting the education of girls. In view of the issues discussed, I place no weight on this document as evidence that the applicant was threatened by any person or group because he was perceived to be involved in teaching or promoting the education of girls. I do not accept that the applicant was threatened for this reason, or that he was of any adverse interest to any group or person on this basis, at the time he left Pakistan.

5. The reasons given by the IAA for rejecting this letter are compelling.  The matters raised by the applicant in argument go to this issue, but none are significant in light of the reasons given by the IAA.  The evidence of the applicant that his wife was threatened years later has no bearing on this letter, nor does the apparent general acceptance of the delegate that the applicant had difficulties in his home area. That there were three other documents that appeared to be signed by the same person and supplied by the applicant adds little: there are two service certificates confirming employment at the school and a ‘Best Teacher Certificate’ (which is in somewhat unusual terms).  None of said documents overcome the concerns of the IAA. Again, the evidence is not so significant in the context of the decision as to lead to a finding of error simply because it was not discussed in the reasons for decision.

6. In substance these particulars seek a merits review of the IAA decision, which is not open in judicial review proceedings.

Particulars (a), (f), (g)

1. These particulars go to the IAA’s rejection of the claim that the applicant’s friends or relatives had told him of threats against him from the Taliban, finding that it did not accept that the applicant had been threatened by the Taliban: see paragraph [25] of thedecision. As the applicant acknowledged, the IAA relied upon the applicant’s conduct in remaining in Pakistan for a period after the alleged threats: see at paragraph [20] of the decision.

2. The applicant takes issue with the IAA’s conclusion that the version he gave as to how he was told of the threats differed between his written application and interview with the delegate, saying that the versions were consistent, however: 

   a)In his statement with his application the applicant recounted the speech he gave in 2010 and simply said that he was told that by ‘friends and family’ ‘that my life is in danger’: see CB page 94.

   b)In the interview, the applicant’s version (at T26.09) was that the Taliban, ‘have a list of those people and I'm on that list’ and that a ‘relative told me that they made a short list of people who are against their mission and your name is there.’

   c)The applicant recounted to his psychiatrist that, ‘he received a phone call from his closest school friend, a Sunni, from an unknown number, and his friend advised him that his name was on a list of people that the Taliban intended to killed’: at CB page 215.

3. It was clearly open to the IAA to make the findings that it did.

4. The applicant also complains that the IAA rejected the applicant’s claims as to additional violence that he made to his psychiatrist. The IAA rejected these claims as they had not been made earlier, and as a result found that they were not credible: see paragraphs [44] to [45] of the decision.  The applicant seeks to impinge the IAA’s findings by referring to the applicant’s comment that there had been general violence in the area (CB page 93 at paragraph [7]) and statements made in the delegate interview (at T28.07) when the applicant discussed calls for men to fight (which he did not answer) and his comments (at T25.27) that some other teachers were killed, although he was unable to give details, suggesting that the delegate undertake a google search. None of the matters identified are of such significance that it could be said that the IAA’s conclusions were illogical or legally unreasonable, nor are the matters of such significance that one would conclude that they were over-looked by the IAA simply because they are not quoted in the decision. 

5. The applicant also argues that the IAA ought to have placed weight upon the findings of the delegate.  As the review is a de novo review of the delegate’s decision it is not for the IAA to start from the position of accepting what the delegate has found and taking that into account in weighing the evidence see generally M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at paragraph [17]. If that were the approach, then every applicant before the IAA would be facing an onus of displacing the delegate’s findings rather than a fresh consideration of the facts. I reject this argument.

6. Finally, the applicant complains that the IAA rejected the psychiatrist’s findings.  The report was discussed at length in the IAA decision, and rejected as the IAA rejected the factual unpinning’s of the report.

Particular (c)

1. The applicant complains that the IAA observed that ‘[t]he psychiatric report of 18 October [2017] does not refer to a recent deterioration in the applicant’s condition’ (at paragraph [55]). The applicant argued that, ‘this finding failed to engage with the contents of the psychiatric report that referred to precisely such a deterioration’ (see applicant’s Outline at paragraph [58]). However, there is not a precise reference to such a deterioration in the report, rather (as set out earlier in the Outline at paragraph [31]) the applicant can only point to a ‘range of indications’ in the report. The conclusions of the psychiatrist were that:

   a)the applicant’s ‘ability to cope with these traumas was lost around the time that he discovered that his life was under direct threat as a result of speaking out against the Taliban’ (CB217 at [41]); and

   a)that, in the psychiatrist’s opinion the applicant’s ‘PTSD is currently perpetuated and exacerbated by the ongoing uncertainty in regarding his refugee status’: see CB page 218 at [49].

2. It was clearly open to the IAA to reach the conclusion that it did on the material before it after rejecting the applicant’s evidence as to the threats.  It was not necessary for the IAA to discuss in detail all of the contents of the report.

3. I am not persuaded that the applicant has pointed to any evidence or submission that is of such significance that its omission from the reasons of the IAA can lead to an inference of error on the part of the IAA. Nor am I persuaded that the findings of the IAA were not reasonably open to it on the evidence. 

4. I therefore find that this ground is not made out.

Conclusions

1. In this matter I am not persuaded that the applicant has made out a ground for judicial review. I therefore make orders dismissing the application. 

2. Costs should follow the event at the scale fee and I so order.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 28 August 2020