FZP18 v Minister for Immigration

[2020] FCCA 605

FEDERAL CIRCUIT COURT OF AUSTRALIA

FZP18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 605

Catchwords:
MIGRATION – Application for Temporary Protection Visa – inconsistencies and implausibility in applicant’s claims – no failure on the part of the Authority to relevantly engage in a proper consideration of all aspects of the applicant’s claims – findings of Authority open on the evidence before it – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 46A, 473CB, 473DD

Cases cited:

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

Applicant: FZP18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 621 of 2018

Judgment of: Judge Egan

Hearing dates: 7 October 2019, 18 February 2020,
10 March 2020

Date of Last Submission: 10 March 2020

Delivered at: Brisbane

Delivered on: 19 March 2020

REPRESENTATION

Solicitors for the Applicant: Self-represented

Counsel for the First Respondent: Ms Oliver

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: Submitting appearance

ORDERS

1. The amended application filed on 26 September 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

PEG 621 of 2018

FZP18

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 is a citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival (Christmas Island) on 16 May 2013.

2. After the bar was lifted pursuant to the provisions of s.46A of the Migration Act 1958 (Cth) (‘the Act’), the applicant applied for a Temporary Protection Visa (‘TPV’) on 2 May 2017.

3. On 14 November 2017, the applicant was interviewed by a delegate of the Minister – the TPV interview.

4. On 1 March 2018, the delegate refused to grant the visa to the applicant.

5. The matter was referred to the Immigration Assessment Authority (‘the Authority’) consequent upon the refusal of the delegate to grant the visa.

6. On 19 October 2018, the Authority affirmed the decision of the delegate not to grant the visa.

7. The applicant’s claims for protection were as set out in [9] of the reasons of the Authority as follows:

   ·“He is a Sunni Pashtun citizen of Afghanistan born in 1987 in [Town A], in Zabul province in Afghanistan. His parents, two brothers (both older) and his younger sister still reside there.

   ·From 2 February 2009 to 30 December 2010 he worked for IRD and USAID. His role involved distributing donations and aid with the help of interpreters and working in the kitchen as a cook.

   ·On around 5 and 20 December 2010 the applicant received letters from the Taliban. The first instructed him to stop working for IRD and USAID. He took this letter to the [Town A] police and completed a police report. The second letter stated that since he did not stop working for IRD and USAID as instructed, he would be killed. He also took this to the police who noted he had already written a police report and advised there was nothing they could do, telling them that even the President is not safe in Afghanistan.

   ·The applicant went into hiding and stayed inside his house all the time for two and a half years. He was afraid to relocate as the Taliban have strong intelligence networks and would find out if he tried to move. During this time he was financially supported by his uncle and to protect him, his family gave other villagers the impression that he had left and they were also searching for him to punish him for working with IRD/USAID. He left in disguise wearing a burqa and went to Kandahar and left the country. No one knows he has come to Australia.

   ·He knows of three IRD/USAID interpreters who also received threat letters. They were not local to the area so they all left and went into hiding elsewhere.

   ·He fears being harmed and/or killed by the Taliban because of his work with IRD/USAID whom they regard as foreigners and infidels, particularly as they have already threatened him, and also because he would return after seeking asylum in Australia. He also fears they may kill his family for protecting him.”

   (Names omitted and pseudonyms added)

8. On 19 November 2018, the applicant filed an originating application for review of the decision of the Authority. The applicant was legally represented at that time.

9. On 26 September 2019, an application was filed by the applicant’s lawyers seeking leave to amend the originating application for review in terms of the draft amended application for review annexed to an affidavit of the applicant also filed on 26 September 2019. On 18 February 2020, the Court ordered that the said amended application be treated as the application to be relied upon by the applicant at the final hearing of the matter. That amended application was accepted by the parties as having been filed on 26 September 2019.

10. The grounds for review relied upon by the applicant were as follows:

    “Grounds of application

    1. The IAA committed jurisdictional error when it incorrectly treated the applicant’s reference to the “Fatwa” to be a new claim or information, when all the applicant was saying was that the threat letter from the Taliban dated 21 Nov 2010 is a “Fatwa”. Alternatively, the IAA failed to consider the wording of the 2^nd notice dated 21 Nov 2010 which if it had, the IAA would not have found the 2^nd notice as a mere warning to cease working for the USAID.

    Particulars

    1.1 The IAA failed to consider the threat dated 21 Nov 2010 (CB 43) is an order to harm the Applicant.

    1.2 The IAA did not consider the following wordings in the said threat “…… and now just wait for the punishment for your action.”

    1.3 The effect of these wordings is that the Applicant had been sentenced for punishment. It is no longer a mere warning.

    2. (Not relied upon)

    3. The IAA committed jurisdictional error by it’s finding that the Applicant’s work with USAID was a “low-profile” and therefore face no risk of harm. Alternatively, the IAA committed an error by categorising the NGO workers as “low profile” and “high profile” when assessing risk of harm of the Applicant when such categorisation is not supported by the available country information.

    Particulars

    3.1 The IAA at [15] accepted that the Applicant worked for USAID and IRD (CB 133)

    3.2 The IAA at [17] accepted that the Applicant received 2 threatening letters from the Taliban (CB 133)

    3.3 The IAA at [16] referred to DFAT, UNHCR, and UKHO which indicates that people working for, supporting or associated with the government and/or the international community face a high risk of being targeted by anti-government elements (AGEs). The Country information does not limit the risk of target harm by AGEs to high profile workers only.

    3.4 The IAA at [13] accepted that Zabul province where [Town A] is located is a dangerous place where Taliban incursions and security incidents are not uncommon.

    3.5 Therefore, the IAA’s findings that the Applicant is “low profile” and therefore does not face risk of harm is contrary to the available country information which supports the Applicant’s claim that he risks harm because of his work with USAID.”

    (Names omitted and pseudonyms added)

11. The applicant’s relevant history and claims for protection were firstly recorded in his statement which accompanied his visa application. [1] The applicant had subsequently expanded upon his claims for protection at the time of his TPV interview before the delegate as follows:

    [1]        Court book (CB) pp. 48 – 52 inclusive.

    ·“The applicant is of Pashtun ethnicity and his religion is Sunni Muslim. He was born in the town of [Town A], Zabul Province, Afghanistan. The main reason the applicant is seeking protection is due to the harm he fears at the hands of the Taliban on account of his work with the International Relief and Development (IRD) and US AID.

    ·The applicant did not have any formal education and his first job consisted of working in his brother’s shop selling groceries from 2006 until 2008.

    ·Around February 2009 the applicant commenced working for IRD and USAID who have an aid program in Afghanistan which involves the provision food, clothing and support to Afghani people in need of assistance.

    ·The applicant’s role consisted of distributing donations and aid with the help of interpreters, as well as working in the kitchen as a cook. The applicant finished this employment in December 2010 and has attached a Certificate of Appreciation from IRD and USAID to his application as confirmation of his employment.

    ·On or about 5 December 2010 the applicant received a threatening letter from the Taliban which told him to cease his work with IRD and USAID. The applicant has attached a copy of this letter to his protection application. The Taliban did not want the applicant working with these organisations because the Taliban believes they are foreigners who are wrongly occupying Afghanistan and because they believe the IRD and USAID are infidels.

    ·After receiving the threatening letter the applicant made a complaint at the main police station in [Town A]. The police instructed the applicant to complete a written police report and the applicant has provided a copy of this report with his application for protection.

    ·The applicant subsequently received a second threatening letter from the Taliban several weeks later and this letter stated the Taliban were going to kill the applicant because he had not heeded their initial demand to cease working for the IRD and USAID. The applicant has attached a copy of this letter to his protection application. Each of the threat letters were left at the applicant’s family home and were attached to the door of the house.

    ·After receiving the second threat letter the applicant again attended the local police station and the police informed him that given he had already completed a written report, there was nothing further they could do to assist him.

    ·After attending the police station in December 2010 the applicant then went into hiding in the family home until he departed for Australia in May 2013. During the Temporary Protection Visa (TPV) interview the applicant explained that he hid in the basement of the family home for the entire period and did not leave the house at all during this time. The applicant also explained that he was able to eventually leave the family home and flee to Australia by leaving the house with female family members whilst disguised as a woman (wearing a burqa to hide his face).

    ·While the applicant was in hiding his family members told people in the village that the applicant had run away. The applicant’s family told people in the village that they were also seeking the applicant so they could punish him for the work he did with the IRD and USAID. The applicant’s family did this to protect the family from further threats from the Taliban. The applicant claimed that apart from his family, nobody in his village is aware that he is in Australia.

    ·The applicant knows of three other people who worked for IRD and USAID as interpreters who also received threat letters from the Taliban. The applicant stated that these people were not from [Town A] and so were able to leave the job and the area and subsequently go into hiding elsewhere. The applicant is not aware if they were killed or not.

    ·The applicant is unable to rely on the Afghan government for protection from the Taliban as evidenced by the fact he went to the police in [Town A] and they were unable to protect him. The applicant is unable to relocate to another area in Afghanistan because his risk of harm extends throughout the whole country. The Taliban has reach throughout the country and they would find the applicant and kill him.

    ·If the applicant returned to Afghanistan the Taliban would know that he had sought asylum in Australia and this would be another reason for them to kill him and also his family.”

    (Footnotes omitted, names omitted and pseudonyms added)

12. At [2] of the reasons of the Authority, it was recorded that the Authority had had regard to the material provided to it by the Secretary pursuant to the provisions of s.473CB of the Act.

13. At [10] and [11] of its reasons, the Authority relevantly set out the refugee assessment and well-founded fear of persecution criteria as respectively provided for in s.5H(1) and s.5J of the Act.

Grounds of Application for Review

1. As to Ground 1 of the amended application for review, such Ground was of two parts. It involved a consideration of two “threat” letters allegedly sent by members of the Taliban to the applicant. The translated letters were respectively dated 5 November 2010 and 21 November 2010 and  the translations of them read as follows: [2]

   [2]        CB pp. 41 and 43.

   “Islamic Republic of Afghanistan

   Taliban’s Army base

   The following is the warning to (Applicant);

   According to our information you have been working for the heathens and atheists for a long period of time and this is totally against our religion and faith. This is also a big betrayal and disloyalty to Afghanistan.

   Therefore, you must stop working for these heathens and atheists otherwise you will be punished.

   From: The Mujahideen of Islamic Republic

   Signed

   05 November 2010

   …

   Islamic Republic of Afghanistan

   Taliban’s Army base

   Urgent Warning to (Applicant);

   This is the second time that we are warning you to stop working for atheists. According to Islam this is flagrant offence, because of this you will be punished by The Islamic Republic.

   Therefore, this is the final warning given to you and now just waits for the punishment for your action.

   From: The Mujahideen of Islamic Republic

   Signed

   21 November 2010”

2. As to the first part of Ground 1, it was asserted that the Authority had committed jurisdictional error “when it incorrectly treated the applicant’s reference to the ‘Fatwa’ to be a new claim or information, when all the applicant was saying was that the threat letter from the Taliban dated 21 November 2010 is a ‘Fatwa’”.

3. As to that assertion, no reference to the word ‘Fatwa’ is to be found in the applicant’s undated statement which accompanied his application for the TPV. Two references to ‘Fatwa’ are nonetheless contained in the submission dated 2 April 2018 sent by the applicant’s lawyers to the Authority for its consideration after the delegate had refused to grant the visa. [3] At page 3 of such submission, in the context of the applicant’s representatives having set out how the applicant had allegedly remained in hiding for two and a half years after having received threats from the Taliban, the submission was as follows:

   “Under the circumstances, we humbly submit that it is not unusual for someone who has received a fatwa – an order to be killed – by the Taliban (to) remain indoor(s) to stay alive.” [4]

   At the bottom of page 3 and the top of page 4 of such submission, in the context of the applicant’s representatives making submissions about the capacity of the applicant to safely relocate if returned to Afghanistan, the submission was as follows:

   [3]        CB pp. 115 – 127 inclusive.

   [4]        CB p. 117.50.

   “The delegate found that the applicant’s risks are localised. Though the risks emanated from a localised area, it does not mean the risks are localised to that area. Due to his failure to stop working for the NGO, the Taliban has passed a fatwa that he will be killed. Therefore, no matter where he lives in Afghanistan, he has a significant risk of harm.”

   (Emphasis added)

4. The submission also contained a contextual reference to Sunni Muslims “blindly following the teachings of Islam as preached by the Taliban” [5] which required punishment by death. [6] After then submitting that the delegate’s finding that the risks were localised, and that it would be safe for the applicant to relocate to Kabul was incorrect, the following submission was made:

   [5]        CB p. 120.5.

   [6]        CB p. 120.30.

   “This is new information – but the applicant being an illiterate who was unrepresented at the hearing with his statement of claim prepared by volunteers, was not in a position to articulate clearly all the risks faced by him in his claim for asylum. We humbly submit that these are exceptional circumstances to justify considering the new information which could not have been provided to the Minister before the Minister made the decision. Alternatively, these are credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claim.”

   (Emphasis added)

5. To the extent that the first part of Ground 1 of the amended application asserted that the Authority incorrectly treated the applicant’s reference to the ‘fatwa’ to be a new claim or new information, the claim is misconceived. The applicant, by his lawyers, clearly asserted that the reference to ‘fatwa’ was new information, and that there were exceptional circumstances justifying its consideration. To the extent that that submission was so made, the applicant cannot later contend that the reference to ‘fatwa’ in such submission was not new information for the Authority’s consideration.

6. In any event, at [3] – [8] inclusive of its reasons, the Authority engaged in a consideration as to the significance of the reference to the ‘fatwa’. At [8] the Authority found that such information could have been provided to the delegate for the delegate’s consideration. It also found that the nature of assertions concerning fatwas was general country information, not credible personal information, and that it didn’t fall within the provisions of s.473DD of the Act. It did so having considered country information as to what constituted a fatwa, [7] as well as the applicant’s claims to the effect that he had received a fatwa. In that regard, the Authority found that:

   “No other evidence had been given to the IAA to support that a fatwa or any declaration has been issued by a religious leader nor to support that the representative’s submissions about the Taliban’s interpretation and preaching of the Quranic verses is accurate. …”

   [7]        Footnote 1 on CB p. 130.

7. The Authority’s approach to part 1 of Ground 1 was considered, and its findings were open to it. Alternatively, even if the Authority was wrong in finding that it was not satisfied that there were exceptional circumstances justifying consideration of the question of whether or not a fatwa had been declared in respect of the applicant, such finding was not a material error which could realistically have resulted in a different decision. [8] The two threat letters were before the Authority, and the Authority was well placed to consider their contents and the effect that they had upon the applicant, if any. The Authority also had the applicant’s 2 April 2018 submission before it. It was well placed to make the findings it did based upon a cumulative consideration of all of the evidence before it.

   [8]        Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4] and [45]

8. The first part of such ground is without merit.

9. As to the second part of Ground 1 of the amended application for review, it was asserted that the Authority failed to consider the wording of the second threat letter dated 21 November 2010, and further, that if it had done so, it would not have found the second letter to be a mere warning to cease working for USAID. That claim is a reference to [17] of the reasons of the Authority where it was said:

   “[17] I accept that in November/December 2010 the applicant received two Taliban letters, addressed to him personally, the first threatening him to stop working “for the heathens and atheists” to avoid punishment, and the second being a “final warning” to stop working for atheists and advising due to his ‘flagrant offence’ he would be punished.”

1. There is no merit to the second part of Ground 1 of the amended application. The Authority at [17] of its reasons accurately recorded that the letter of 21 November 2010 had stated that such letter was a second warning to the applicant to stop working “for atheists”, and that it was a final warning requiring punishment for the commission of a “flagrant offence”.

2. At [18] of its reasons, when discussing that second threat letter, the Authority said as follows:

   “[18] However the applicant met the Taliban’s demand to cease his work and I am not satisfied anyone tried to find or punish him or that he remained of any interest to the Taliban after this time.”

3. The Authority was entitled to find that there was no evidence that anyone had tried to find or punish the applicant. It was also entitled to find that, some ten years after the sending of the second letter, the applicant would not have remained of any interest to the Taliban. It made such findings in the context of it having closely considered the applicant’s claims that after having received the second threat letter the applicant had gone into hiding at home, his allegedly never having left his house for a 2.5 year period. At [19] – [20] of its reasons, the Authority examined the applicant’s claims of his having hidden at home for a 2.5 year period, and found his claims that he had remained undetected to be unlikely. The Authority found that it was implausible that the Taliban would have been pursuing the applicant to punish him, noting that had the Taliban had that intention, then its members would have at least searched the family home for the applicant during that 2.5 year period. There was no such evidence before the Authority.

4. At [21] of its reasons, the Authority noted that the evidence did not suggest that USAID or other NGOs had recently been targeted in [Town A]. It also noted that the applicant’s family had not faced problems from the Taliban for any reason connected to the applicant or otherwise. There was no evidence that the Taliban had approached the applicant’s family for the purpose of finding the applicant, nor that any member of the Taliban had even questioned the applicant’s family about the applicant’s activities. It was open for the Authority to find that in such circumstances, some eight years after the applicant had ceased working for USAID, neither the Taliban nor anyone else would take issue with the applicant should he return to the [Town A] region because he had earlier worked in a low profile capacity for an NGO. It was further open to the Authority to find that due to the passing of time, and in the absence of evidence to the contrary, the applicant was unlikely to be targeted because of his past low profile NGO involvement.

5. At [22] of its reasons, the Authority noted that there was no indication that the applicant had been active with any type of NGO or aid organisation in the six years during which he had lived in Australia. It was open for the Authority to find that the applicant would not seek out, or otherwise work with, an NGO or similar organisation if he was to be returned to Afghanistan. In so finding, the Authority specifically dealt with the question as to whether or not the second threat letter of 21 November 2010 had the effect of forever marking the applicant as a person to be punished by death for his involvement with atheists. After having carefully considered such question in the context of all of the evidence before it, the Authority clearly found that any such threat did not have a lasting effect.

6. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

7. There is no merit to the second part of Ground 1 of the amended application for review.

8. Ground 2 of the amended application for review was not pressed at the hearing of the application for review before the Court.

9. As to Ground 3 of the amended application for review, it was asserted that the Authority committed jurisdictional error because it found that the applicant’s work with USAID was “low profile”. It was asserted in the alternative that the Authority ought to have found that the applicant risked harm if he was to return to [Town A] irrespective of whether his previous work with USAID was characterised as either high profile or low profile. There is no merit to either such claim.

10. The Authority at [21] of its reasons referred to country information before the delegate relating to Taliban activities both in the [Town A] area and generally. In that regard, it is to be inferred that the Authority had regard to the reasons of the delegate which made specific reference to country information relating to the likelihood or otherwise of low profile NGO employees being targeted by the Taliban. The delegate, at pages 9 and 10 of the delegate’s reasons, said as follows: [9]

    [9]        CB pp. 91 – 92.

    “In considering the aforementioned guidance, I am of the opinion that whilst the Taliban could possibly locate and target the applicant in Kabul, I do not believe there is a real chance they are likely to do so due to the low profile held by the applicant when he worked for the NGO, in conjunction with the considerable length of time since the applicant worked for the NGO, some 8 years ago.

    In reaching this finding I have taken into consideration that the UK Home Office outlines its policy in relation to Afghan persons supporting or being perceived as supporting the government as:

    ‘Low profile individuals are unlikely to face serious harm if they leave their job and / or come from or relocate to a part of the country not controlled by the AGE, unless there are specific individual circumstances that increase the risk or which could lead to continued targeting.’

    The aforementioned report cites a 2012 EASO report which states that:

    ‘Looking at the available information, no evidence was found of further targeting by the Taliban after someone quit a job or activity, except for one case’

    And furthermore,

    ‘Giustozzi [Antonio Giustozzi, an expert on Afghanistan] stated that there is no reporting of further targeting of escapees who flee to urban centres. They would have the possibility to track down people who are working, but it would not be a priority for them. Several other sources confirmed that if it was possible for targeted people to move to urban centres, they could escape the threats by the insurgents, but several of them pointed to individual circumstances. The UNHCR mentioned, for example, that it could be possible for low profile people to seek protection in their community and that it should be assessed case by case, and a political analyst referred to the profile, giving the example of NGO workers who could escape by quitting and leaving the province.’

    I have also considered the most recent EASO report, from December 2017, which states in relation to individuals targeted by the Taliban that:

    ‘In general though, if a person is not active in the fight against the Taliban, in propaganda or on the battlefield, it is, according to Osman (political analyst in the Afghanistan Analysts Network (AAN), not of interest for the Taliban to target such a person and hamper their efforts to appear as a viable alternative to the current government.’

    And,

    ‘Individuals and their families that receive threats from the Taliban because of past or current connections to the government or any other entity targeted by the Taliban often relocate to the cities for their safety’

    And furthermore,

    ‘Targeted killings by the Taliban reportedly occur in major cities, for example, the Taliban killed their main opponent in Uruzgan province, police chief and tribesman of former president Karzai Matiullah Khan, in a targeted suicide bombing in Kabul in 2015. According to Abubakar Siddique (senior correspondent specializing in coverage of Afghanistan and Pakistan), the list of people for whom the Taliban will invest resources and planning to track and target into the major cities is limited to a few dozen and up to a hundred persons, maximum. For lower profile individuals, Abubakar Siddique gave the opinion that the Taliban ‘probably will not target them or their family members after relocating to the cities’. Both Abubakar Siddique and Anand Gopal (program fellow with the International Security Program at New America Foundation/journalist) highlighted that there are exceptions where the targeting actually entails personal enmities, rivalries or disputes’.

    The same report cites country information that states if quitting one’s job is what the threats are demanding, doing so is generally enough to avoid further targeting and provides the example that the Taliban reportedly ‘often’ release captured ANSF personnel through mediation of community leaders, on the condition of stopping to work with the government.

    Country information does indicate that targeted killings by the Taliban reportedly occur in major cities, for example, the Taliban killed their main opponent in Uruzgan province, police chief and tribesman of former president Karzai Matiullah Khan, in a targeted suicide bombing in Kabul in 2015. According to a professor interviewed by the COI unit of the Canadian IRB, Taliban tracking capacities after relocation are particularly successful when targeting ‘well known and well positioned opponents’. Whilst I accept the aforementioned country information regarding the Taliban targeting individuals in major cities, I note that the aforementioned examples refer to the targeting of ‘well known’ or high profile targets such as the police chief.”

    (footnotes omitted)

11. It cannot be said that the Authority did not appropriately engage in a consideration of whether or not the nature of the applicant’s last involvement with USAID in 2010 would have an impact upon the likelihood or otherwise of the applicant suffering harm should he be returned to Afghanistan. Having assessed all of the evidence before it, including, inferentially, the country information referenced in the delegate’s decision, it was open to the Authority to find that due to the applicant’s past low profile involvement with USAID, as well as the lapse of time since such involvement, the applicant would not face harm if returned to Afghanistan. The Authority carefully analysed the evidence before it in that regard. Such finding was open to it. That ground is without merit.

12. The decision of the Authority could not be considered legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

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

    …

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

13. It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

14. It cannot be said that the decision of the Authority was either irrational or illogical in the context of the discussion of those principles in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] – [61] per McKerracher, Griffiths and Rangiah JJ where it was said:

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

    52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

    …

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

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

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

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

1. The applicant has failed to demonstrate jurisdictional error on the part of the Authority.

2. The amended application for review is dismissed.

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

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  19 March 2020

         per Bell, Gageler and Keane JJ.