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MZAHB v Minister for Immigration

MZAHB v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHB v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 775

Catchwords:
MIGRATION – Judicial review – whether failure to deal with an integer of the claims – returnees from Australia – whether members or supporters of a political party are at risk – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424(3)(a), 425, 426A, 441A(4)(c)(i).

Migration Regulations1994, reg.4.35D.

Applicant:

MZAHB

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1285 of 2014

Judgment of:

Judge F. Turner

Hearing date:

19 March 2015

Date of Last Submission:

19 March 2015

Delivered at:

Melbourne

Delivered on:

21 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Wood

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondents:

Mr Horan

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The amended application for judicial review filed 15 January 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1285 of 2014

MZAHB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 775
Decision Date: 21 April 2015

CaseChat Overview and Summary

This matter concerned an application for judicial review by MZAHB (the applicant) of a decision made by the Minister for Immigration (the respondent). The applicant sought to challenge the Tribunal's finding that there was no real chance of serious harm to the applicant as a supporter or member of the Awami National Party (ANP) in Swabi, Pakistan. The core of the dispute revolved around whether the Tribunal's decision was affected by jurisdictional error, specifically through illogicality or irrationality.

The legal issues before the Court were whether the Tribunal's conclusion that the risk of serious harm to the applicant was remote was illogical or irrational, thereby constituting jurisdictional error. This required the Court to consider the standard for determining illogicality or irrationality in the context of a decision-maker's satisfaction under section 65 of the relevant legislation, and whether the Tribunal's assessment of the country information regarding the ANP and the security situation in Swabi met that standard.

The Court applied the principles established in *SZMDS*, which held that a decision is not illogical or irrational if there is room for a logical or rational decision-maker to reach the same conclusion on the material before them. Illogicality or irrationality sufficient to give rise to jurisdictional error means a decision that no rational or logical decision-maker could arrive at on the same evidence. The Court found that the Tribunal had regard to a wide range of country information concerning Swabi, including an increase in militant activity and attacks on ANP leaders and officials, even after the ANP lost government in 2013. The Tribunal's finding that leaders and officials continued to be targeted was not considered illogical, irrational, or unreasonable. The Court also noted that the Tribunal is an inquisitorial body and not obliged to accept all evidence presented, nor to comment on every item of material. The Tribunal's finding that any chance of serious harm to the applicant was remote was determined to be a finding of fact not amenable to review.

The application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In SZMDS (post) at [135] Crennan and Bell JJ decided: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. (Emphasis added) And at [130]-[131]: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. The Court finds that the Tribunal did not have to apply the process of reasoning proposed by Mr Wood; a different process of reasoning could result in the conclusion reached by the Tribunal. The conclusion reached in [44] that leaders and officials continued to be targeted was not illogical, irrational or unreasonable. The finding of the Tribunal that it was satisfied that “any chance of serious harm to the applicant, as a supporter or member of the ANP in Swabi is remote”, is one of fact and is not amendable to review. The Court accepts the following written submissions by the first respondent (amended and underlined by the Court):Membership of the ANP(9)The Tribunal had regard to a wide range of country information in relation to the situation in the applicant’s home area of the district Swabi within the Khyber Pakhtunkhwa province (KPK), with a particular focus on the level of militant activity in that area from late 2010 onwards: see paragraphs CB 221 [26-31] of the Tribunal’s reasons for decision [CB 221-224]. In broad terms, this country information was to the following effect The Tribunal found that the country information showed that:9.1Prior to 2010, Swabi had been a ‘relatively secure district’ [CB 221.7]. A suicide bombing attack occurred in November 2010, and insecurity increased in 2011 with reports of a number of attacks, including an attack on an ANP leader: para 27 [CB221.8]. 9.2There was an increase in militant activity in 2013, which was accompanied by an increased police response: para 28 [CB 221-222].9.3In 2009, the Pakistan Army had commenced two major offensives against the TTP and aligned groups in the Federally Administered Tribunal Area and in KPK: para 30 [CB 223.1].9.4The ANP led the provincial government in KPK until 2013, and members had been targeted and killed due to the party’s anti-Taliban stance: para 31 [CB223.4]. The Tribunal referred to information about attacks on ANP leaders and senior activists during this period, including attacks against the President of the ANP, a member of the Provincial Assembly, a senior minister, the some (sic “son”) of the information minister, a former mayor, the ANP District President, a senator, and a former senior Vice President, an anti-Taliban ANP politician and a local ANP leader. 9.5The Tribunal referred to a 2012 report that ‘attacks on members of the secular ANP are on the rise’, and cited an incident involving a bomb attack on an ANP rally in Nowshera in February 2012 [CB 223.6], and bomb blasts in Karachi which targeted ANP supports during the election period in 2013 [CB 223-224]. It may be noted that each of these incidents occurred during the period in which the ANP was still in government in KPK.9.6The Tribunal then addressed the situation in KPK since after the ANP ceased to be in government:‘ANP leaders have continued to be killed in KPK in 2014,[6] despite the ANP losing government in 2013, because of the ANP’s secular doctrine and support for the offensive against the militants in Swat.[7]’ [CB 224.1](10)As the Tribunal made clear in its reasons for decision, all of The above country information was taken into account in making findings on the applicant’s claims: para 32 [CB 224.2]. In particular, in relation to the finding as to the risks faced by the applicant if he continued to support the ANP on return to Pakistan, the Tribunal placed weight on the most recent country information which addressed the situation in KPK since the ANP lost government in 2013. This is clear from a fair reading of the Tribunal’s reasons at paragraph 44 [CB226.4], where the Tribunal introduces its finding with the words stated ‘Although the ANP lost government in 2013 …’, and refers to country information which indicated ‘that ANP leaders and officials are continuing to be targeted in KPK because of their support for the government during the Army offensives’. This is a clear reference to the country information referred to in paragraph 9.6 above.(11)The applicant’s contention that there was ‘copious’ and ‘uncontradicted’ evidence before the Tribunal that the Taliban posed a threat to ANP members and supporters is misconceived. The Tribunal is an inquisitorial body, and does not conduct adversarial proceedings, and therefore does not act as a ‘contradictor’.[8] The Tribunal is not obliged to accept evidence, including country information, merely because there is no material to rebut or contradict that evidence.[9] Further, the Tribunal is ‘not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item’.[10] [6] Ahmad, R 2014, ‘Relentless targeting: ANP leader gunned down in Buner’, The Express Tribune, 21 April; ‘House of slain ANP leader bombed’ 2014, The News International, 21 April; ‘Twice in two months: Blast at ANP office damages building’ 2014, The Express Tribune, 19 January; ‘ANP leader among 8 killed in KP attacks’ 2014, Dawn, 12 January.[7] Sethna, R 2014, ‘Target: Karachi’, Dawn, 6 March.[8] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 341 [10] (French CJ)[9] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 (Heerey J); Mukto v Minister for Immigration and Multicultural Affairs [1999] FCA 1801 at [13] (French J); Minister for Immigration and Multicultural Affairs v Shatku [2001] FCA 1857 at [19] (Gray, Dowsett and Stone JJ); SZTKA v Minister for Immigration and Border Protection [2014] FCA 1294 at [31], [54] (Barker J).[10] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14] (Gray, Tamberlin and Lander JJ); compare Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [31] (Spender, O'Connor and Emmett JJ); see also Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; (2000) 74 ALJR 405 at [64]-[65] (McHugh J).