MZAHB v Minister for Immigration

[2015] FCCA 775

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.

Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1
HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314
MZZKA v Minister for Immigration and Border Protection 2014] FCA 633
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938
SZOZF v Minister for Immigration & Anor [2011] FMCA 364
SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18
Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291

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

1. 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

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 27 May 2014. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.

2. The grounds in the amended application filed on 15 January 2014 are as follow:

   (1)The applicant claimed to have a well-founded fear of persecution at the hands of the Taliban by reason of his membership of the Awami National Party (ANP), which held views opposed to the Taliban. In dealing with this claim, the Tribunal failed to lawfully form a state of satisfaction whether the applicant met the criteria for a protection visa in s 36 of the Act.

   Particulars

   (a)The applicant claimed that he was an ANP member and supporter, and that ANP members and supporters (not just ANP leaders and officers) faced a real chance of persecution at the hands of the Taliban in his home area in Pakistan.

   (b)The Tribunal accepted that the applicant was a member of the ANP, that he had participated in ANP meetings at which ANP leaders were present, and that he may continue to support the ANP if he was to return to his home area in Pakistan.

   (c)The Tribunal had before it copious and uncontradicted evidence to the effect that the Taliban posed a threat to ANP members and supports (not just ANP leaders and officers). In particular, the Tribunal apparently accepted country information to the effect that ANP ‘party workers have been targeted heavily in the [the applicant’s home province]’; that the Taliban ‘targeted leaders, their relatives and supporters of the ANP’; that ANP ‘members have been targeted and killed due to the party’s anti-Taliban stance’; that ‘attacks on members of the secular ANP are on the rise’; that there had been a recent bomb attack at an ANP rally which resulted in many fatalities; and that more recently there had been a bomb blast that ‘targeted ANP supporters’ and which also resulted in many fatalities.

   (d)Despite the uncontradicted evidence, the Tribunal concluded that ‘any chance of serious harm to the applicant, as a supporter or member of the ANP in Swabi, is remote’.

   (e)In light of its acceptance that the applicant was an active member of the ANP, and the uncontradicted evidence concerning the risks faced by ANP members in the applicant’s home area, the Tribunal’s conclusion is inexplicable.

   (f)The Tribunal’s conclusion may have involved ; a failure to engage in a real or active way with the evidence concerning the risks faced by ANP members in the applicant’s home area; irrational reasoning; or a misdirection as to the applicable ‘real chance’ test. There may be other ways of describing or explaining the Tribunal’s error. In any event, it is apparent that, in purporting to deal with this claim, the Tribunal has failed to discharge its function according to law.

   (2)The applicant claimed to have a well-founded fear of persecution at the hands of the Taliban by reason of that he would by imputed and identified as someone holding anti-Taliban views as a consequence of having lived in Australia for many years. In dealing with this claim, the Tribunal failed to lawfully form a state of satisfaction whether the applicant met the criteria for a protection visa in s 36 of the Act.

   Particulars

   (a)The applicant claimed that it had ‘become well known in [his] area’ that he was in Australia, and that the Taliban consider that ‘anyone who visits or lives [in Australia] has been influenced by the culture and views [in Australia] and that they will become anti-Taliban’. The applicant alleged that he would be easily identified by the Taliban as someone who had lived in Australia because of his accent.

   (b)The Tribunal failed to make findings in relation to these claims, and thereby constructively failed to exercise its jurisdiction.

3. The applicant filed written submissions on 15 January 2015 and the first respondent filed written submissions on 4 February 2015. At the hearing before the Court on 19 March 2015 the applicant was represented by Mr Wood of Counsel and the first respondent by Mr Horan of Counsel. In deciding this matter, the Court gives consideration to the written and oral submissions.

Background

1. The applicant is a citizen of Pakistan, who is of Pashtun ethnicity and Sunni Muslim religious belief. He arrived in Australia on 9 April 2007 (Court Book “CB” p.13) as the holder of a student visa. 

2. On 18 October 2011, the applicant made an application for a protection visa (Court Book “CB” pp.1-25). The applicant claimed to fear persecution from the Taliban due to his and his father’s involvement with the Awami National Party (the “ANP”), and because the applicant had lived in Australia, he would be perceived as being anti-Taliban (CB pp.52-55).

3. On 15 August 2012, a delegate of the Minister refused to grant a visa to the applicant (CB pp.95-115).

4. On 23 August 2012, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 116-122).

The Grounds

1. The Court accepts the first respondents written summary of the grounds as follows:

   (8)The amended application dated 15 January 2015 contains two grounds of review.

   8.1The first ground of review challenges the Tribunal’s finding that the applicant did not have a well-founded fear of persecution for reasons of his membership and support of the ANP.  The applicant contends that the Tribunal’s conclusion is ‘inexplicable’ in the light of ‘uncontradicted’ evidence before the Tribunal concerning the risks faced by ANP members in the applicant’s home area.

   8.2The second ground of review alleges that the Tribunal failed to make findings in relation to the applicant’s claims that it had become well-known in his home area that he had been in Australia, and that he would be easily identified by the Taliban as someone who had lived in Australia because of his accent.

2. Although they are convenient summaries, the Court will have regard to the full text of the grounds.

3. The arguments on 19 March 2015 focused first on the content of para.44 of the Tribunal’s decision which is as follows:

   (44)The Tribunal accepts that the applicant may continue to support the ANP on return to Pakistan. Although the ANP lost government in KPK in 2013, the country information above indicates that ANP leaders and officials are continuing to be targeted in KPK because of their support for the government during the Army offensives. The applicant is not an ANP leader or official however and Tribunal is satisfied that any chance of serious harm to the applicant, as a supporter or member of the ANP in Swabi, is remote.

4. A “remote” risk of harm does not meet the requirements in the Migration Act 1958 (the “Act”).

5. Mr Wood argued that the conclusion reached by the Tribunal in [44] could only be reached as a matter of logic, if the word “only” appeared before “ANP” in line 3 of [44] (supra). The Court raised with Mr Wood that the finding could be logical if the Tribunal had applied the maxim “expressio unius est exclusio alterius” to the wording in [44]. Doing that does not infer or imply words into the statement of reasons, which is not permissible. For this reason Wu Shan Liang (post) is not applicable.

6. The Court has not been convinced that the logic in the latin maxim was not used or that some other logical process was not used. Although it is a maxim of statutory interpretation, it is equally applicable in general reasoning. The Tribunal did not have to state what process of reasoning it used, just its’ reason for decision. The Court does not consider the finding in [44] to be illogical. There is no finding in [44] that supporters or members continue to be at risk, only leaders and officials. The Tribunal stated in [43] that it doesn’t accept that the applicant would be targeted because of his “past, limited involvement with the ANP”. The Tribunal was entitled to make that decision.

7. As stated in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [32]:

   “… the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]- [29].”

8. The Court refers to and applies the following passages in SZOZF v Minister for Immigration & Anor [2011] FMCA 364 at [31]:

   “… as Crennan and Bell JJ in SZMDS make clear, not every lapse in logic will give rise to jurisdictional error.[1] Rather, “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.[2]”

   And at [33]:

   “Further, the assessment of the applicant’s visa was an issue of fact upon which different minds might reach different conclusions.[3] There is no error in the assessment of such evidence where reasonable minds might come to different conclusions and the weight to be given to this evidence was a matter solely for the Tribunal to determine.[4]”

   And at [35]:

   “On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal… Accordingly, the applicant’s description of the Tribunal’s reasoning as being “illogical” or “unreasonable” should be viewed as merely an emphatic way of expressing disagreement with it.[5]”

   [1] Minister for Immigration and Citizenship v SZMDS & Anor (2010) 266 ALR 367 at [130].

   [2] Ibid. [130].

   [3] Ibid. at [131].

   [4] Minister for Immigration and Citizenship v SZJSS & Ors (2010) 273 ALR 122 at [35].

   [5] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J.

9. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual findings of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance where his Honour had said at [16]:

   “I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:

   A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka[1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”

10. The Court refers to the decision in Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 at [51]:

    “As Crennan and Bell JJ recently observed in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 ; [2010] HCA 16 at [130], “not every lapse of logic will give rise to jurisdictional error”. No matter how the ground of review is framed, if reasonable minds might differ in the result, the decision cannot be set aside for jurisdictional error as illogical, irrational or unreasonable merely because one conclusion has been preferred to another.”

11. “Mere faulty reasoning” does not give rise to jurisdictional error: Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 [85]. As a Full Bench of the High Court recently noted in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34] “to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with”. A Court should not “lightly” find that reasoning is irrational or illogical: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at p.625 [40].

12. 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)

13. 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.

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

(Emphasis added)

1. 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.

Ground One: Evidence on membership of the ANP

1. 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).

2. The Court refers to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court stated at [11]:

   “By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

3. The Tribunal is entitled to accept or reject evidence: NAHI (supra)

4. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

5. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:

   “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”

6. The Court refers to the following decisions:

   a)Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:

   “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

   The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact: see W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and par excellence Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 at [67].

   b)The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

7. As stated in Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at p.374:

   “The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234).”

8. The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.

9. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]:

   “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”

   And at [29]:

   “While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:

   ·     the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259, and

   ·     if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs[2007] FCA 80 at [36], Abebe v Commonwealth[1999] HCA 14; (1999) 197 CLR 510.”

10. The Court refers to the following passages in Attorney – General for the State of New South Wales v Quin (1990) 170 CLR 1 at pp.35 to 36:

    The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

    The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

    There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v. Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.”

11. The Court does not find the decision here to be so unreasonable that no repository of the power could have taken it.

12. The applicant claims that the finding of the Tribunal that the applicant does not have a well-founded fear of persecution is “inexplicable”.

13. The Court refers to and applies the passages in SZOZF at [13] and [33] (supra).

14. The Court finds that the conclusions reached by the Tribunal were not such that no rational or logical decision maker could arrive at on the same evidence. The Tribunal’s reasons are not illogical, irrational, unreasonable or inexplicable.

15. The first respondent’s written submissions continued at [11]:

    The applicant has not sought to put before the Court any of the source material that was cited by the Tribunal in its reasons, but rather attempts to ‘cherry pick’ aspects of the summary of that material given by the Tribunal, and as that would be a clear attempt at merits review, but asserts that those some aspects ‘corroborated’ the applicant’s claim. However, this amounts to no more than an attempt to revisit the merits of the Tribunal’s findings of fact.

    (12)Both the choice and the assessment of the weight to be given to country information is a matter for the Tribunal as part of its fact-finding function. NAHI (supra)

    12.1The Tribunal had regard to a range of country information, including the most recent available information, on the risks to ANP supporters or members in the applicant’s home area. 

    12.2It was open to the Tribunal to find that any chance of serious harm to the applicant as a supporter or member of the ANP would be remote.  It cannot be said that this conclusion was ‘inexplicable’, nor that the Tribunal failed to engage in a conscious consideration of the submissions and evidence as to the risk of harm to ANP members and supporters.  For example, the Tribunal’s conclusion was consistent with and supported by recent country information about continued attacks on ANP leaders since the ANP lost government in 2013. (CB 226[44])

    12.3To the extent that any earlier material suggested that there were risks to ANP members or supporters other than leaders or officials, that material does not necessarily contradict the Tribunal’s finding concerning the risks that would be faced by the applicant on his return to Pakistan, nor does it demonstrate any irrationality by the Tribunal.  It was open to the Tribunal to place weight on recent country information about the situation in the applicant’s home area since the ANP lost government in 2013. Ibid On that the basis of that country information, the Tribunal found that, while there had been attacks on ANP leaders and officials in 2014, the risk of harm to ANP members and supporters was remote.

    (13)While it may be accepted that the concept of jurisdictional error embraces a number of different and potentially overlapping kinds of error, this does not relieve the applicant of the burden or onus of proof of establishing jurisdictional error by the Tribunal.[11]  It is not enough to raise a ‘possibility’ that the Tribunal might have fallen into jurisdictional error, whether by failing to engage with material in a real or active way, or by misdirecting itself as to the ‘real chance’ test, or by adopting an irrational process of reasoning. The principles identified by Dixon J in Avon Downs are concerned with decisions for which no reasons are provided, and is of little assistance in the present case where the question is whether jurisdictional error is disclosed by the Tribunal’s reasons, which should be beneficially construed.

    (14)Finally, no inference can be drawn that the Tribunal failed to have regard to the material referred to in the applicant’s post-hearing submissions (CB 207). In contrast to MZYTS,[12] the material contained in the post-hearing submission was not updated information about recent events in the applicant’s country bearing upon the prevailing circumstances on his return. Rather, the material was related to incidents which were covered by the Tribunal’s survey of the country information: see paragraph 31 of the Tribunal’s reasons [CB 223-224]. These incidents were predominantly attacks against ANP leaders and officials. In so far as the material referred to risks faced by ANP members and supporters, it neither differed from nor added anything to the summary contained in the Tribunal’s reasons. In particular, the material was not directed to the situation after the ANP lost government in 2013, which was directly addressed by the more recent information relied on by the Tribunal.

    [11] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J); SZQYM v Minister for Immigration and Citizenship [2014] FCA 427 at [37].

    [12] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547; cf. MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [96]-[101].

16. Mr Wood complains that the applicant put more recent country information onto the record which the Tribunal did not refer to. Mr Wood referred to the decision is Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114. The most recent country information here was after the KPK lost government in 2013 (CB 226 [44]) which is later information than that relied on by Mr Wood referred to at CB 223.

17. A decision-maker must take into account the most current information available to it: see Peko-Wallsend (supra) at pp.44 to 45. A failure to act upon the most current information available is a denial of natural justice: see SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938 at [32]-[33].

18. As stated in NAHI (supra) at [13]:

    “Both the choice and the assessment of the weight of… (country information)… were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”

    The decision continued at [14]:

    “The Tribunal was 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.”

19. However, the court finds that there is no principle that a failure to refer to the most recent country information is necessarily a legal error. As pointed out in VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291 at [41]:

    “Such information might for example have come from a less reliable source than the old information.”

20. The Court is not able to make a finding as to the accuracy of country information. Mr Wood contends that the Tribunal should have found that supporters and members of the ANP were still at risk after the elections in 2013. That is a blatant attempt to review the merits, and is rejected. Mr Wood asserts that the Tribunal did not deal with the evidence in the way he submits it should have. That is not an available ground for judicial review.

21. The finding of the Tribunal is that any chance of serious harm to the applicant is remote. That finding stands.

22. Ground one has not been made out and is dismissed.

Ground Two

1. The Court refers further to the first respondent’s written submissions:

‘Returnees from the West Australia’

(15)The Tribunal dealt with the applicant’s claim that he had a well-founded fear of serious harm as a ‘returnee from the West’, under a heading which adopted the language employed in the applicant’s written submissions to the Tribunal: [CB 155.1, 156.1]

(CB 226) and did not accept that the applicant would be harmed for that reason (CB 226 [46])

.

(16)The Tribunal made a finding of fact that the applicant would not be harmed in Swabi because he has lived in the west or in Australia: paragraph 46 [CB 226.7] Ibid. That This finding was open on the evidence before the Tribunal, including material to the effect that Swabi was an educated and progressive district which was opposed to is resisting militants and extremists, and that a large number millions of Pakistanis had studied overseas, including in Australia. , and returned to Pakistan. The applicant’s submissions seek to revisit this finding those findings on the factual merits., which is not available.

(17)Accordingly, even if it were accepted that it was well-known that the applicant had lived in Australia, or might be identified as such by his accent, the Tribunal found that was no real risk that he would be seriously harmed for that reason (CB 226 [46]). The claims that it had become well-known that the applicant had lived in Australia and would be easily identified as such because of his Australian accent were therefore ‘subsumed in findings of greater generality’.[13]

[13] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47].

1. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]:

   “It may be that it is unnecessary (for the Tribunal) to make a finding on a particular matter because it is subsumed in findings of greater generality.”

2. The first respondent’s written submissions continued at [17]:

   Further, in the light of the finding of fact that there was no real chance that the applicant would be seriously harmed because he had lived in Australia, it was unnecessary for the Tribunal to address questions of the effectiveness of State protection or internal relocation within Pakistan.

3. Mr Wood complains that the Tribunal did not deal with the applicant’s claim that he would be recognised by his Australian accent. The claim that the applicant would be seen as a “returnee from the West” was dealt with at CB 226 [45].

4. Mr Wood referred to the decision in MZZKA v Minister for Immigration and Border Protection [2014] FCA 633 where Bromberg J stated at [21]:

   “The Tribunal must address, cumulatively, all of the essential elements of the claim or claims raised by the material or evidence: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [7].”

5. HTUN (supra) at [7] states:

   “While it may be convenient for the tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the tribunal, in conducting its review of the decision of the delegate under s 414 of the Migration Act 1958 (Cth), is under a duty to address or deal with the case (that is, the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180; Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–4 ; 58 ALD 30 at 36.”

6. The Court understands and applies those comments as being the requirement, that the Tribunal deal with all integers of the claims, which of course it must do. The Court finds that all integers of the claim were dealt with by the Tribunal.

7. The claim that the applicant would be recognised because of his Australian accent was not an integer of the claim. The Court finds that there was no failure to deal with an integer of the claims. Mr Wood states that the claim to be recognisable by the applicant’s Australian accent is evidentiary (Transcript “T” p.13, l.18).

8. A failure to make a finding regarding a piece of evidence does not amount to jurisdictional error: see VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25].

9. In SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18 Nicholas J decided at [62]:

   “It is accepted by the first respondent that the Tribunal is obliged to consider claims which, while not expressly advanced, are apparent on the face of the material before the Tribunal: NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].”

   And at [68]:

   “It (the Tribunal) was not required to consider theoretical possibilities that were not adverted to by the applicant and which had no support in any of the material before it.”

10. In MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314, Middleton J said at [13]-[15]:

    “It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39 per Mason J).

    A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.

    The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).”

11. The Court finds that all integers of the claims were addressed. Ground two dismissed.

12. The application for judicial review is dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 21 April 2015