Eyv18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FCA 255
•20 March 2024
FEDERAL COURT OF AUSTRALIA
EYV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 255
Appeal from: EYV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1450 File number(s): NSD 708 of 2020 Judgment of: WIGNEY J Date of judgment: 20 March 2024 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – where Federal Circuit Court dismissed appeal of Administrative Appeals Tribunal’s decision to affirm refusal of protection visa – whether primary judge erred in finding that Tribunal’s decision complied with s 425(1) of the Migration Act 1958 (Cth) – duty to notify applicants of dispositive issues arising in relation to decision under review – whether refusal of application was by reference to issues not considered dispositive – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 425, 438 Cases cited: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398
SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 46 Date of hearing: 12 April 2023 Counsel for appellant: Mr D Godwin Solicitor for appellant: Malik Lawyers Counsel for first respondent: Mr T Reilly Solicitor for first respondent: Australian Government Solicitor ORDERS
NSD 708 of 2020 BETWEEN: EYV18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
The appellant, a citizen of Pakistan, applied for a protection visa. A delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, refused that application, a decision which was affirmed on review by the second respondent, the Administrative Appeals Tribunal. The appellant unsuccessfully challenged the Tribunal’s decision in judicial review proceedings in the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia): EYV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1450 (J or Judgment). The appellant appealed to this Court from the Circuit Court’s dismissal of his application.
The issue raised by the appeal is narrow in scope. In the Circuit Court, the appellant contended that the Tribunal made a jurisdictional error because it failed to give him a fair hearing in accordance with s 425 of the Migration Act 1958 (Cth). That was said to be because the Tribunal did not notify the appellant that it might make an adverse finding in respect of one of his factual claims in circumstances where the delegate had accepted that claim. The primary judge rejected that contention on the basis that the Tribunal had put questions to the appellant regarding the plausibility of the claim in question. The Tribunal therefore did not fail to put the appellant on notice that the claim was in issue. The question for resolution by this Court is whether the primary judge erred in so concluding.
Visa application and refusal by the delegate
Given the narrow scope of the issue raised by the appeal, it is unnecessary to discuss the criteria for the grant of a protection visa, or to describe at length the procedural background to the appellant’s visa application. It is necessary to provide only a relatively short summary of the appellant’s claims which were said to entitle him to the grant of a protection visa.
The appellant originally lived with his family in a village named Ningolai in the Swat district of the Khyber Pakhtunkhwa province in Pakistan. From about 2006, however, he lived in Peshawar, though he regularly returned to his village, at least up until 2009 and 2010 when the events that formed the basis of his protection visa application occurred.
The appellant claimed that his uncle was killed and his father was seriously injured by the Taliban at their family home in February 2009. This Taliban “attack” was said to have been provoked by the fact that the appellant and his father were members of the Awami National Party and by his father’s actions in publicly denouncing the Taliban and organising their neighbours to report the presence of Taliban members to the Pakistani army.
According to the appellant, in 2010, his cousins identified the Taliban members who were responsible for the attack. The Taliban members were local villagers. The appellant’s cousins informed him of their names and the appellant provided those names to the “Village Defence Committee” (VDC). The VDC then informed the Pakistani army. The appellant then attended three of the Taliban members’ houses with the army and the army destroyed their houses using explosives. Those events were said to form the main basis of the appellant’s fears that he would be targeted by the Taliban if he returned to Pakistan.
The appellant said that after those events he returned to his home village less frequently. When he did visit, he undertook safety precautions, such as not informing others of his return and staying inside the family home.
In September 2012, the appellant’s family received a threatening letter from the Taliban. The letter stated that the Taliban sought revenge for the appellant having assisted the army in 2010. Despite receiving that threatening letter, the appellant’s family continued to reside at the family home in Ningolai.
The appellant arrived in Australia on a student visa in July 2013. He lodged an application for a protection visa on 9 October 2014. He was interviewed by the delegate on 13 May 2015.
On 21 January 2016, the delegate refused the appellant’s protection visa application. The delegate accepted some elements of the appellant’s claims, including his claims concerning the event in February 2009 during which his uncle was killed and his father was injured, and his claim that he had passed on information regarding the Taliban members who were suspected of having been involved in that event. The delegate did not, however, accept the balance of the appellant’s claims. In particular, the delegate did not accept that: the appellant was a “target of the Taliban” for the reasons he had outlined; he or his family had received a threatening letter from the Taliban; he had witnessed the destruction of the houses of the suspected Taliban members; the houses of the Taliban members were destroyed for the reasons the appellant had claimed; the appellant was identified by the Taliban as having assisted the army; the appellant left Pakistan as he feared for his life; and that he was an active member of the Awami National Party.
The delegate found that the appellant’s testimony regarding his claims surrounding his provision of information to the army was “unconvincing and implausible”. The delegate concluded that the appellant was of no interest to the Taliban in Ningolai and Peshawar.
Having rejected the central factual elements of the appellant’s claims, the delegate was not satisfied that the appellant satisfied the criteria for the grant of a protection visa.
Merits Review in the Tribunal
The appellant applied for a review of the delegate’s decision by the Tribunal. The Tribunal conducted a hearing on 7 August 2018. During that hearing, the Tribunal member questioned the appellant fairly comprehensively concerning his claims, including his claim that his cousin had compiled a list of Taliban members who were suspected of having been involved in the events of February 2009, his claim that he had given that information to the VDC, which had in turn passed that information on to the army, and his claim that he subsequently accompanied members of the army when the Taliban members’ houses were destroyed.
In a decision published on 10 September 2018, the Tribunal affirmed the delegate’s decision: (Decision Record or DR).
The Tribunal accepted very few of the appellant’s factual claims beyond the claim that the appellant and his father were members of the Swat Valley chapter of the Awami National Party and that the appellant’s father had been injured and his uncle killed in an attack on the family home in February 2009: DR [31].
The Tribunal found that the appellant’s evidence about his cousin compiling a list of the Taliban members who were suspected of being involved in the events of February 2009 and his evidence about being asked to accompany the army on its “demolition mission” was “somewhat vague and ultimately somewhat implausible”: DR [33]. While the Tribunal did not categorically reject those claims, it ultimately concluded that it was “not able to rely on [the appellant’s] account of his having a significant role in the authorities’ action against the Taliban”: DR [33] (emphasis added). That finding essentially flowed from the fact that the Tribunal did not believe that the “purported” Taliban letter received by the appellant’s family was genuine, mainly because there was no evidence that his family had taken any “self-protecting action” upon supposedly receiving it and had not reported the letter to either the VDC or other authorities: DR [33]. The appellant’s family, including the appellant’s wife and child, had continued to reside at the in the same house without suffering any harm: DR [31] and [33].
The Tribunal also found that the appellant’s involvement with the Awami National Party was not such as to make him a target or to give rise to any risk of him being seriously harmed in the area where he had resided in Pakistan: DR [34]. Moreover, the Tribunal found that the appellant’s evidence at the Tribunal hearing constituted “overwhelming evidence of the availability of effective state protection for [the appellant], his wife, his son, his siblings and his parents” in Pakistan: DR [35].
The Tribunal was accordingly not satisfied that the appellant was a person in respect of whom Australia had protection obligations such as to support the grant of a protection visa: DR [37] and [42].
Judicial Review in the Circuit Court
The appellant applied for judicial review of the Tribunal’s decision in the Circuit Court. The appellant’s application contained one ground of review, that ground being that the Tribunal “fell into jurisdictional error in failing to give the [appellant] a fair hearing in accordance with s 425 of [the Act]”.
Section 425(1) of the Act provides as follows:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The appellant relied on two particulars in respect of his claim that he was denied a fair hearing. Given the narrow focus of the appellant’s ground of appeal in this Court, it is only necessary to consider one of those particulars. That particular was that an “adverse finding” was not “put to” him “for comment” and he was therefore not provided with “an opportunity to be heard”. The adverse finding that the appellant contended was not put to him concerned his claim that he had passed on information concerning the Taliban to the VDC. The appellant claimed that the Tribunal had rejected that claim because it found that his evidence in that regard was “somewhat vague and ultimately somewhat implausible”. The appellant submitted that the Tribunal was required to put that adverse finding to him for comment because the delegate had accepted that claim.
The primary judge rejected the appellant’s contention that he was denied a fair hearing and dismissed his application with costs.
The primary judge accepted that where there are “specific aspects” of a claim which are “important to [a] decision” and “open to doubt,” the Tribunal “must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted” (J [19]), citing SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at [47]). His Honour held, however, that the Tribunal’s reasons and the transcript of the hearing demonstrated that the Tribunal had put questions to the applicant regarding the plausibility of his claim that he had passed on information concerning the Taliban to the VDC. The primary judge reasoned as follows in that regard (at J [18]):
…the Tribunal asked the [appellant] questions about if his cousins, who were responsible for gathering the information about the Taliban, were interviewed by the authorities and whether people in general, and the [appellant] in particular, were actually afraid to denounce the Taliban given it would have been obvious that the Taliban were behind the attacks. The Tribunal also put concerns to him that nobody appeared to be trying to harm him.
(Footnotes omitted)
The primary judge concluded that this line of questioning was sufficient to put the appellant on notice that his claim regarding the passing of information was an issue in the review (at J [19]):
The [appellant] was put on notice of the broad concerns the Tribunal had about his claims, which centred around the fact that his family had not been harmed despite remaining in the same province, and was afforded an opportunity to respond to these concerns. In those circumstances, it is plain that the [appellant] was properly afforded the opportunity to address a dispositive issue in the review.
(Footnotes omitted)
The Tribunal also addressed an issue that arose concerning the non-disclosure of a certificate which had been issued under s 438 of the Act. The Tribunal found that the non-disclosure of the certificate was immaterial and therefore did not give rise to any jurisdictional error. That finding is not challenged on appeal.
Ground of appeal and submissions
The appellant’s amended notice of appeal contained one ground of appeal, being that the primary judge erred in not finding that the Tribunal had failed to comply with s 425 of the Act and “should have found that the Tribunal failed to afford the applicant an opportunity to present evidence and arguments on the issue of whether the appellant provided information as to the identity of suspected Taliban to the VDC”.
The appellant submitted that it is apparent from the delegate’s decision record that the delegate accepted his claims that his cousins had informed him that they had obtained the names of the Taliban who had been involved in the February 2009 attack on his family and that he had passed that information onto the VDC, who had in turn liaised with the Pakistani army. In those circumstances, the appellant was entitled to assume that his claims in that regard were not in issue in the Tribunal. In the appellant’s submission, however, the Tribunal rejected his claim that he had passed on information concerning the Taliban to the VDC because it found that it was not able to rely on the appellant’s account of having had a significant role in the army’s action against the Taliban. The Tribunal had also not clearly raised with the appellant that it was contemplating taking a different view in respect of that issue. The appellant submitted that he was therefore deprived of an opportunity to present evidence and arguments in respect of that issue. The appellant submitted that this was the same sort of error as the error considered by the High Court in SZBEL.
In the appellant’s submission, the primary judge erred in concluding that the Tribunal had put questions to the appellant concerning the plausibility of his claims and had given him an opportunity to respond to those concerns. The Tribunal’s questioning of the appellant was, so it was submitted, “far too indirect”, general and “open-ended” to alert him that the issue whether he had passed on information concerning the Taliban to the VDC was “in play”.
Was the appellant afforded a fair hearing?
The appellant was not denied a fair hearing. The Tribunal did not, as the appellant contended, fail to put an adverse finding to the appellant or otherwise fail to afford him an opportunity to present evidence and arguments on any important or dispositive issue. The appellant was fairly put on notice by the Tribunal’s questioning that his claims, including his claim about passing information onto the VDC, were in issue. He was given every opportunity to say whatever he wanted to say in relation that issue.
The appellant’s primary submission was that his case was analogous to SZBEL. In SZBEL, the protection visa applicant had relied on three events which were said to support his claim that he feared persecution or that he would be seriously harmed if returned to Iran on account of his Christian faith. In refusing the applicant’s protection visa application, the Minister’s delegate referred to only one of those events, but nevertheless concluded that he was not satisfied that the applicant was a committed Christian. Nothing in the delegate’s reasons indicated that the other two events were in issue. On review in the Tribunal, the Tribunal did not identify those two events as important issues and did not challenge what the applicant said in relation to them. The Tribunal nevertheless found that the applicant’s claims, including his claims in respect of the two events that had not appeared to be in issue before the delegate, were not credible.
The High Court found that the applicant was denied procedural fairness because the Tribunal did not give the applicant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues in relation to the decision under review. The High Court reasoned as follows (at [35]):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The High Court did, however, make three other “general points”, two of which are relevant to this appeal. The first point was as follows (at [47]):
… there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
The second point was, in short, that “procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”: SZBEL at [48].
There are at least three reasons why the circumstances of this case are distinguishable from those considered in SZBEL and why the appellant’s contention that he was denied procedural fairness must be rejected.
First, the appellant relied heavily on the fact that the delegate had accepted his claim that he had given the VDC information concerning the Taliban members who were said to have been involved in the events of February 2009 that led to the death of his uncle and the injury of his father. The problem for the appellant, however, is that the delegate rejected virtually all of the appellant’s claims concerning the events that followed and found that the appellant was of no interest to the Taliban, even though he may have provided information to the VDC. The delegate’s reasoning and findings in that regard effectively put the appellant on notice that the plausibility and credibility of his claims concerning the events surrounding or following his provision of information to the VDC were in issue. In that context, the appellant’s claim that he had provided information to the VDC was not an important or dispositive issue. The Tribunal was not, in all the circumstances, obliged to tell the appellant that his claim that he gave information about the Taliban to the VDC was or may have been in issue.
Second, the appellant’s contention that he was denied procedural fairness was premised on the proposition that, while the delegate had accepted that he had provided information to the VDC, the Tribunal had rejected that claim. The problem for the appellant is that a fair reading of the Tribunal’s reasons provides no support for that premise or proposition. The Tribunal did not reject that claim. Like the delegate, the Tribunal rejected the appellant’s claims concerning what followed his provision of the information.
The Tribunal’s findings and reasoning concerning the appellant’s claims are primarily to be found in paragraph 33 of its Decision Record. That paragraph should be set out in full.
As noted, I find Mr Khan’s evidence about his cousins being able to make a list of the responsible Taliban members and his evidence about being asked to accompany the army on its demolition mission somewhat vague and ultimately somewhat implausible. This finding on its own is not enough to lead me to constructive disbelief that these events occurred, but I have considered it cumulatively along with Mr Khan’s evidence surrounding the alleged Taliban letter. Notwithstanding that it refers to events described in Mr Khan’s claims, and notwithstanding that it bears what looks like a stamp featuring a Taliban insignia, I do not believe that the purported Taliban letter is genuine. This is due to the complete lack of evidence of any self-protecting action on the part of those people who were living in the house, at the time of the letter’s alleged delivery, and who continued to live there at least for several more years and/or up to the present day. There is not even any evidence in this matter of the family having raised this letter and its threatening contents with the VDC or other authorities. Because I do not accept that the letter is genuine, I find I am not able to rely on Mr Khan’s account of his having had a significant role in the authorities’ action against the Taliban.
As can be seen, the critical finding by the Tribunal is that it did not accept that the appellant had a “significant role” in the army’s actions against the Taliban. That finding flowed from the Tribunal’s finding that the threatening letter that the appellant’s family had supposedly received from the Taliban was not genuine. That finding was in turn based on the fact that the appellant’s family had continued to live in their home in Ningolai, had taken no “self-protecting action” after supposedly receiving that letter and had not even raised the letter with the VDC or other authorities. Those findings effectively mirrored the findings that had been made by the delegate. There is nothing in the Tribunal’s reasoning to suggest that the Tribunal rejected the appellant’s specific claim that he had provided information to the VDC. Indeed, the indications are that, like the delegate, the Tribunal accepted that the appellant had provided information to the VDC, but found that the provision of information did not amount to a “significant role” in the events that followed and provided no basis for the appellant’s claims that he would be targeted by the Taliban. The facts and circumstances of this case are far removed from the facts and circumstances in SZBEL, where the Tribunal clearly rejected claims that had not been in issue before the delegate.
Third, and in any event, the Tribunal’s statements and questions during the hearing fairly put the appellant on notice that all the events which were said to support his claim that he would be persecuted or seriously harmed by the Taliban if he returned to Pakistan were in issue. The Tribunal questioned the appellant at some length concerning his claims. While the questioning did not directly challenge the appellant’s evidence concerning his claims, it was sufficient to put the appellant on notice that the plausibility and credibility of his claims was in issue. More importantly, the questioning gave the appellant a fair opportunity to expand upon his claims and explain why they should be accepted.
The following extracts from the transcript of the Tribunal hearing support that conclusion (M is the Tribunal member and A is the appellant).
M: You reported to the police, is that right, that the Taliban was responsible?
A: I think you have to follow a certain chain of command, you have to report, you have to contact the Defence Committee and the Defence Committee actually reporting this matter to the Army.
M: And this is what you did?
A: Yes.
M: And, did they then investigate or attribute the attack to the Taliban?
A: Look, we report initially to the VDC, that is the Village Defence Committee, and then they report it to the Army and the VDC actually confirmed the people, show me this how this that where are these people living in. And then I pointed out and I show it physically these houses, they are coming from here.
M: So the village became involved?
A: Yeah, no, it's actually the involvement of the Village Defence Committee.
……
M: Did any authorities interview your cousins?
A: No, I ... no they didn't, because the, all the responsibility I took from him and I provided all the information to ... I would be responsible so I didn't involve him in this situation.
M: You can take responsibility for reporting the information, but why would that stop the authorities from getting an eye witness information from your cousins? Why would that stop them?
A: So, he will be also in the same fate that the Taliban are targeting people if they report anything and the condition he was: "You shouldn't show or you shouldn't disclose me as a witness because then, later on, I will be in the same trouble. I don't want to be in a trouble from the Taliban, a target killing by the Taliban."
M: Wouldn't it be obvious anyway? That this was a Taliban attack? And, isn't it illogical for the Taliban to be afraid to be suspected of committing this act?
A: Well, they wouldn't be afraid of being a person that carried out attack. But the issue is in the village level. In the village level, once a person is reporting a thing, is different to everyone, because then he will become the main suspect or the main person betrayed him and that is people are afraid of that.
M: People are afraid to be identified as persons who denounce the Taliban?
A: It's not only that, but since those people living in the village, they are also from the village and then they will have that the enmity or in a way that they have to live for the rest of their life, they cannot run away for a single incident because that will have impact to the families, or ... they cannot simply leave the village because they were involved in the ... because there are a lot of consequences for living in the family.
……
M: Seems that as soon as you got the information from your cousins, you went to the VDC, the Village Defence Committee. You seem to be acting as though you were less afraid of the consequences.
A: I was courage, you know, I have suffered and I experienced the weakness that when they have amputated my father's leg and I thought that everything, that I lost my father's leg because of those people. I have to speak up, and these people should be punished too. That was a different moment, I was a witness of the actual things happening to my father.
M: Well, they were pushed out of Swat in 2009. And, whether the Taliban trickles back from time to time in these places, your father has gone on living in that house.
A: As a Pashtun coming from that region, it's inappropriate to leave. In a sense, to their eyes, he's already been killed or he's been injured. He's in his eighties, what other alternative my father would have rather than staying at home all the time? And somehow he was been defeated at that time.
M: But there's the years after that, where you prospered in your studies, university and held a stable job in Peshawar. Whatever happened in 2009 and whatever happened with you reporting the matter to the authorities, nothing seems to have ... nothing significant seems to have happened to you.
A: Well, the ... after the reporting and all(?), they carried out the operation by Army. the Taliban was in a situation ... they was ... they were on the run, so in a way they were just hiding themselves. And at that time it could be because they were not in a position to take anythings against me.
M: Well, they are not trying to get at you by harming your wife and son, or anything like that. So, it doesn't seem like the grudge you're talking about was even a grudge, or at least that it wasn't very long lived.
A: Look, as I mentioned earlier, that our ladies predominantly, they are inside the house and not only that, Taliban would not be identifying my wife or my son. And that is not something that they are doing. My son is mainly staying in the grandpa's house. Yeah, they are staying at home all the time.
This questioning sufficiently indicated to the appellant that all his factual claims, which were said to support his claim that he would be harmed by the Taliban because of the role he had played in the army’s actions against the Taliban in his family’s village, were in issue. It was not necessary for the Tribunal to directly put to the appellant that his evidence may not be accepted as truthful or credible.
It follows that the primary judge did not err in rejecting the appellant’s contention that he was denied procedural fairness because the Tribunal did not put him on notice that it might make an adverse finding concerning his claim that he had provided information concerning the Taliban to the VDC. The Tribunal made no such adverse finding and, in any event, the appellant was “put on notice of the broad concerns the Tribunal had about his claims, which centred around the fact that his family had not been harmed despite remaining in the same province”: J [19].
Materiality
Given the finding that the appellant was not denied a fair hearing and that the Tribunal therefore did not fail to comply with s 425 of the Act, it is strictly unnecessary to consider whether any such failure was material. It should nevertheless be noted that, even if the appellant was denied a fair hearing because he was not told that the Tribunal might find that he had not provided information concerning the Taliban to the VDC, it is difficult to see how that breach or error could be said to be material such that it amounted to a jurisdictional error.
A fair reading of the Tribunal’s reasons suggests that, even if the Tribunal rejected the appellant’s claim that he had provided information concerning the Taliban to the VDC, which as has already been said is highly doubtful, any such rejection of that minor element of the appellant’s claims played no role, or no material role, in the Tribunal’s reasons for rejecting the appellant’s claim that he was at risk of serious harm by the Taliban if he returned to Pakistan. As has already been discussed, the Tribunal’s main reason for rejecting that claim was that appellant’s family had continued to reside in Ningolai without taking any steps to protect themselves and that the threatening letter that was supposedly given to the appellant’s family was not genuine. Contrary to the appellant’s submission, there is no basis for concluding that the Tribunal’s supposed finding that the appellant had not provided information to the VDC in the first place fed into those findings.
Perhaps more fundamentally, there was in any event, an entirely independent basis for the Tribunal’s ultimate decision to affirm the decision under review. That finding, which was not challenged in this appeal, was that “effective state protection” was available for the appellant, “his wife, his son, his siblings and his parents, in Swat and in Peshawar”: DR [35]. It follows that, even if the failure to put the appellant on notice of the supposed adverse finding concerning the provision of information to the VDC may have somehow been material to the Tribunal’s rejection of the appellant’s claim that he was likely to be targeted by the Taliban as a result of his role in the army’s actions against the Taliban members in Ningolai, the Tribunal would nevertheless have affirmed the decision under review because effective state protection was available to him. It cannot, in those circumstances, be accepted that the appellant was deprived of a “realistic possibility of a different outcome”: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [1].
Conclusion and disposition
The appellant has failed to demonstrate any appealable error by the primary judge. The primary judge did not err in finding that the appellant was not denied a fair hearing. The appeal must be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 20 March 2024
0
4
1