Solomon (a pseudonym) v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 82
Federal Circuit and Family Court of Australia
(DIVISION 2)
Solomon (a pseudonym) v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 82
File number(s): MLG 1705 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 14 February 2023 Catchwords: MIGRATION – protection visa application – application for judicial review – whether Tribunal considered all available country information for the purpose of assessing whether the applicant had a well-founded fear of persecution based on his religious beliefs – jurisdictional error established – application for review allowed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 414, 476 Cases cited: CKR16 v Minister for Immigration & Anor [2020] FCCA 390
Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 14 November 2022 Place: Hobart Counsel for the Applicant: Mr Crosthwaite Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondent: Mr Barrington Solicitor for the Respondent: Mills Oakley ORDERS
MLG 1705 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN SOLOMON (A PSEUDONYM)
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
14 February
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 4 August 2017.
2.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicant’s application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 4 August 2017, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 20 July 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Protection Visa on 1 August 2013, which was refused by a delegate of the First Respondent on 12 August 2014. He came to Australia from Egypt.
The Tribunal conducted a hearing on 28 November 2016. On 20 July 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection Visa.
The application for judicial review of the Tribunal’s decision came before me on 14 November 2022 for hearing. At the hearing, the Applicant and the First Respondent were represented by Counsel.
At the commencement of the hearing the Applicant made an application for a human pseudonym to be assigned for him and to be used in any judgment of the Court. I requested that the Applicant propose a suitable pseudonym. The Applicant proposed the name “John Solomon”. The amendment to the name of the Applicant was not opposed and on 14 November 2022 the Court made orders that for the purpose, such that in these proceedings and publication of judgment, the Applicant be known as John Solomon.
BASIS OF tRIBUNAL DECISION
Before the Tribunal, the Applicant made the following claims (summarised):
(a)In Egypt there was rioting and escalating violence against Christians, and as a Coptic Christian the Applicant feared being harmed or killed;[1]
(b)The Egyptian constitution discriminates against Christians and religious laws allow Christians to be persecuted and harmed. The Muslim Brotherhood were killing Christians and attacking churches, and further that police are not able to control the violence;[2] and
(c)In high school he was bullied and harmed by Muslim students on an ongoing basis due to his religion and they continued to harass and threaten him since they left school. Those people were later aligned with the Muslim Brotherhood,[3] have threatened the Applicant’s father, and demanded the Applicant’s conversion to Islam.[4]
[1] Tribunal reasons at [5].
[2] Tribunal reasons at [5].
[3] Tribunal reasons at [5] and [7].
[4] Tribunal reasons at [7] and [13].
A large portion of the Tribunal’s decision addressed the credibility of the Applicant.[5] It found that the Applicant was not a credible witness of the truth[6] on the basis that:
(a)There is inconsistency between the claims in his application for protection and his later statements. The Tribunal found that the claims were materially different rather than simply less detailed or particularised, and rejected the Applicant’s explanations for the discrepancy;[7]
(b)The Applicant’s claims were “far-fetched and implausible”,[8] specifically that that Muslim students from his high school would continue to harass him once their education had ended, coerce him into converting to Islam, or fabricate his conversion and abandonment of Islam to incite others to harm him;[9]
(c)The Tribunal found a number of the documents relied upon by the Applicant to be fraudulent due the prevalence of document falsification in Egypt and irregularities such as missing dates. As such it placed no weight on any documents presented in supporting the Applicant’s claims;[10] and
(d)The delay in the Applicant applying for protection caused the member to have further concerns with the Applicant’s credibility and to disbelieve the extent to which the Applicant feared persecution or significant harm. The Tribunal rejected the Applicant’s claim that he did not apply for protection sooner because he initially intended to go back after the expiration of his student visa until his father warned him of the danger, and that then he was unaware that he could apply for protection.[11]
[5] Tribunal reasons at [19] to [49].
[6] Tribunal reasons at [19].
[7] Tribunal reasons at [20] to [28].
[8] Tribunal reasons at [33].
[9] Tribunal reasons at [29] to [33].
[10] Tribunal reasons at [34] to [40].
[11] Tribunal reasons at [41] to [48].
The application for review does not challenge any of the credibility findings.
In respect of specific risk of harm to the Applicant based on him being a Coptic Christian, largely influenced by its credibility findings summarised at [7] of these reasons, the Tribunal found at [50] to [51] that the harm did not reach the level of serious harm. In particular, it rejected that:
(a)Religious harassment continued after the Applicant graduated high school;
(b)The Applicant was pressured to convert to Islam, or that anyone fabricated evidence of religious conversion or marriage to a Muslim to discredit him;
(c)The Applicant’s family were threatened or harmed because of his religion;
(d)The Applicant has been threatened or harmed by persons aligned with the Muslim Brotherhood; and
(e)The Egyptian authorities have interest in the Applicant for any reason, or that he is on a watch list with a warrant for his arrest.
In respect of the Applicant’s fear of sectarian violence on his return to Egypt, the Tribunal had regard to the Department of Foreign Affairs and Trade (“DFAT”) country information concerning Egypt in general[12] and specifically Egyptian Coptic Christians[13] along with the further country information provided to it by the Applicant in his post-hearing submissions.[14]
[12] DFAT Country Report – Egypt, 19 May 2017.
[13] DFAT Thematic Report – Egyptian Copts, 24 November 2015.
[14] Tribunal reasons at [61] and [63].
While the Tribunal accepted that following the January 2011 revolution in Egypt there was a “reduction of law and order” and that Copts may have been “disproportionately affected”, it said that Coptic Christians are not at general risk of persecution or ill-treatment.[15]
[15] Tribunal reasons at [57] and [58].
The Tribunal concluded that the Applicant could return to Egypt without any real chance or risk of being harmed for being a Christian or due to generalised risk of violence in the urban area of Cairo,[16] and that the Applicant does not qualify for protection under ss 36(2)(a)[17] or 36(2)(aa)[18] of the Act.
[16] Tribunal reasons at [58] to [66].
[17] Tribunal reasons at [69] to [73].
[18] Tribunal reasons at [74] to [76].
Court Review
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Grounds of review
The amended application for review filed 18 October 2022 raises one ground for review, being that:
The Tribunal erred in its statutory task in that it did not ‘deal with’ (a) the most recent, and/or (b) contradicting, country information relating to the chance of harm to Coptic Christians in Egypt, having found that the Applicant is a Coptic Christian from Egypt.
Specifically, the country information which the Applicant submits was not considered by the Tribunal is contained in:[19]
(a)A media release from the Assistant Minister for Immigration and Border Protection (as the First Respondent was then called) dated 31 May 2017 (“the 31 May 2017 media release”);[20]
(b)A Human Rights Watch Report dated 12 April 2017 (“the Human Rights Watch Report”);[21] and
(c)An Amnesty International Report dated 10 April 2017 (“the Amnesty International Report”).[22]
[19] Applicant’s Outline of Submissions filed 18 October 2022.
[20] Excerpt as included in the Court Book at page 420.
[21] Excerpt as included in the Court Book at pages 413 and 414.
[22] Excerpt as included in the Court Book at pages 414 and 415.
Applicant’S CASE
The Applicant relied on:
(a)The application for judicial review filed 4 August 2017;
(b)The Affidavit of Hannah Dickinson filed 18 October 2022, which was read into evidence subject to the admissibility of Annexures A and B;
(c)The Outline of Submissions filed 18 October 2022.
The Respondent objected to the Court receiving the affidavit of Ms Dickinson in evidence on the basis of relevance, but agreed that the Court should rule on the question of its admissibility after having the benefit of considering the parties’ submissions on the application for review.
Counsel for the Applicant submitted that the annexures to the affidavit were relevant and demonstrated that the Tribunal had failed to undertake its statutory task pursuant to s 414 of the Act. In particular, it had not considered deterioration of the situation for Coptic Christians in Egypt in the seven months prior to the Tribunal decision and particularly very recent information about that in May 2017.
Counsel for the Respondent submitted that the material now sought to be relied upon was not before the Tribunal and could not be relevant to the issues on review.
Contentions by Applicant
The Applicant submits that the repeated and primary claim made before the Tribunal was that there was a real chance of suffering serious harm by reason of being Coptic Christian.[23]
[23] Court Book at pages 358 and 406.
Further that there was ample material before the Tribunal showing escalating attacks on churches and other violence which the authorities could not prevent and which took place in major cities.
He submitted that the documents referred to at [15] above included country information in support of this escalating violence, and were included in a submission of 28 June 2017 before the Tribunal. The submission included the following documents:
·In the Human Rights Watch Report, that “[t]he suicide bombings at two Egyptian churches on April 9, 2017 are a terrifying reminder of the escalating threats facing Egypt's Christian minority…” and were “the worst day of violence targeting Christians in modern history…”;[24] and
·In the May 2017 media release, that “…[u]pdated country information received by the Government in recent days highlights the violence Copts are facing at the hands of Islamic State terrorists”, that the situation was an “emergency”, and that DFAT country information would be updated “to ensure immigration decisions reflect the current situation in Egypt”.[25]
[24] Court Book at page 413.
[25] Court Book at page 420.
Counsel for the Applicant submitted that the Tribunal failed to properly deal with the country information attached to the 28 June 2017 submission, thus committing jurisdictional error by failure to discharge its statutory task. He identified four points said to be relevant to the task, being:
·The Tribunal must undertake a predictive exercise, using material before it to speculate future risk of harm;
·Failure to take into account all information available when making this determination will constitute a jurisdictional error;
·A failure to take into account all submissions or ignoring matters is a failure to perform a statutory task the Tribunal must perform; and
·Where the Tribunal overlooks relevant facts or material, it may constitute jurisdictional error.
Counsel for the Applicant submitted that, while the Tribunal made general findings at [62] of its reasons about the state of violence and attacks, it did not consider the most recent information about that subject contained in the media release. Accordingly, as I understood the submission, the Tribunal failed to perform the predictive exercise required to assess the degree and likelihood of risk faced by the Applicant on return to Egypt because he is Coptic Christian.
The Applicant argues that this failure to consider was a relevant material failure because the information in the 31 May 2017 media release was updating the information in the DFAT country information dated 19 May 2017, to which the Tribunal extensively referred and upon which it relied.
Counsel for the Applicant submitted that the documents before the Court show that the DFAT country information relied on by the Tribunal for the purpose of assessing whether the statutory criteria for protection was satisfied, was not the most recent about the situation in Egypt at the time of decision. Consequently it is evident that the more recent 2017 Country information was not properly considered, leading to a failure on the part of the Tribunal to discharge its statutory task. He relied on a line of authorities dealing with how failure to consider relevant evidence or issues may constitute jurisdictional error, including NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”) at [44] and [50], and Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [65].
FIRST RESPONDENT’S CASE
The First Respondent relied on the written submissions dated 31 October 2022 and also made oral submissions through Counsel. It was said that there was no real dispute about the applicable legal principles in MZYTS at [38]. Instead, the issue was whether the Tribunal made the error which is asserted.
It was further submitted that a careful review of the Tribunal’s reasons would demonstrate that there was no error in how the Tribunal proceeded and that it did consider the material contained in the 28 June 2017 submissions. Additionally, that having considered all the country information, it made a finding of fact that there had not been an increase in the risk of harm faced by Coptic Christians.
The First Respondent says that the documents referred to at [15] of these reasons were not the only country information before the Tribunal and that it extensively referred to relevant country information in its reasons, including information that post-dated the April 2017 events reported in the documents now relied upon by the Applicant. The country information that post-dated the reported events in April 2017 were those noted in the Tribunal’s reasons at Footnotes 12 to 20.[26]
[26] Court Book at pages 444 to 446.
Accordingly, the First Respondent says that Tribunal did not ignore the country information identified by the Applicant, and further that the written reasons demonstrate it was in fact considered as it was expressly referred to at [15] of its reason for decision.
Finally, the First Respondent submitted that the Tribunal’s reasons at [61] fairly read is a summary of the country information it referred to earlier at [15] of its reasons and refers to substantially the same information the Applicant says was not considered.
As to the Tribunal’s reliance on the footnoted country information, the First Respondent contended that there was no error and the reasons for decision demonstrate that the Tribunal preferred other country information to that which the Applicant says was overlooked. There is no error in how the Tribunal proceeded, and in support of this contention I was referred to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
The Tribunal was entitled to draw the conclusions it did at [71], [74] and [56] to [66] of its reasons about the risk of harm from sectarian or generalised violence if the Applicant is to return to Egypt.
EVALUATION
Admissibility of the Affidavit of Ms Dickinson
The relevant general principles are helpfully summarised by Judge Barnes in CKR16 v Minister for Immigration & Anor [2020] FCCA 390 at [172] in the following terms:
As made clear in the authorities discussed by Judge Jarrett in CMO17 at [44]-[48], the starting point in relation to the issue of admissibility is that ordinarily no further evidence can be admitted on judicial review. There are exceptions to this general principle but, as Brennan J stated in Waterford v Commonwealth (1987) 163 CLR 54 at 78; [1987] HCA 25 (cited in CMO17 at [44]), where an error of law is relied on as the basis for judicial review an applicant “cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact”. In Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 213 FCR 536 at 539-540; [1989] FCA 159 Lockhart J pointed out that the admissibility of evidence not before the decision-maker depended on the grounds of review and the circumstances of the case.
[original emphasis]
If the Applicant seeks to rely on Ms Dickinson’s affidavit and the annexed material to persuade the Court that the Tribunal was factually wrong to find as it did that sectarian and general violence towards Coptic Christians had not escalated[27] and that attacks are rare enough to be considered remote,[28] this is impermissible. It would involve the Court in merits findings and reconsideration, which is not the function of the Court on an application for review.[29]
[27] Tribunal reasons at [62].
[28] Tribunal reasons at [63].
[29] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 at [48].
However, if he seeks to rely on the material to give context to what consideration the Tribunal undertook of:
·the nature and chance of risk of harm to the Applicant in Egypt because he is a Coptic Christian; and
·specifically whether for that purpose it did properly or adequately consider the documents relied on by the Applicant referred to at [15] of these reasons;
I consider it permissible, relevant and goes to the very heart of the ground of review.
I understood from the submissions made by counsel for the Applicant that the affidavit and annexures were for the purpose described at [36]. Accordingly, the affidavit is received in evidence and will be considered.
Was there a failure to consider?
Ultimately, the Applicant’s case on review is that the Tribunal failed to appreciate the existence and import of the material referred to at [15] of these reasons concerning attacks and violence in May 2017 when it undertook its assessment about the nature and probability of the risk of harm to the Applicant as a Coptic Christian.
I accept the First Respondent’s submission that the Tribunal considered extensive and relevant country information as set out in its reasons for decision, considered the submission of 28 June 2017, and referred to country information in it.[30]
[30] Tribunal reasons at [15] and [61].
In my view, the Tribunal’s reasons at [62] contain its deliberative reasoning. There the Tribunal expressly refers to considering specific country information about the state of emergency following Palm Sunday attacks and the declaration of a state of emergency on 10 April 2017. That was the information up to April 2017 and it was plainly considered.
The Tribunal reasons at [62] then demonstrate that the Tribunal compared the state of affairs up to April 2017 to “trends in data set out in Eshhad” and “analysis by DFAT” of risk.
The reference to “analysis by DFAT” is understood to be the DFAT Thematic reports and Country reports footnoted by the Tribunal in its reasons as appearing in the Court Book at pages 444 and 445. By virtue of the dates of these reports and periods they covered, they did not include the full extent of the May 2017 attack(s) and violence referred to in the 31 May 2017 media release submitted by the Applicant.
The reference to Eshhad is only capable of being understood by reference to the Annexures to Ms Dickinson’s affidavit which are before the Court. The annexures demonstrate what information or at least the type of information that was considered, in addition to the DFAT Thematic and Country reports for the purpose of the Tribunal “noting”:
·That authorities have demonstrated a willingness to prevent attacks reoccurring;
·That several incidents referred to in the submission occurred in rural areas of Egypt rather than urban areas such as the Applicant’s home area; and
·The Applicant’s claim about the specific attack on a cathedral 10 minutes away from the Applicant’s home;
Following the above reasoning and at the end of the Tribunal reasons at [62], it concluded as follows:
…Considering the incidents in the context of all other available information, I do not accept that these recent attacks are indicative of an increased risk to a Coptic man such as the applicant who lives in an urban area in Cairo such as to lead to a real chance or a real risk of the applicant being harmed as a practicing Coptic Christian if he was to return now or in the reasonably foreseeable future.
[emphasis added]
The Eshhad information captured incidents of attacks and violence up to the end of the second quarter of 2017, covered the period of May 2017 and the particular attack in 26 May 2017.[31] It can be readily appreciated that the May 2017 data in Eshhad corresponds to the Assistant Minister’s reference to “recent days” in the 31 May 2017 media release. While the most current information was not included in the DFAT information considered for the purpose of deliberation, it was in the Eshhad information the member had regard to for an assessment of what he called ‘trends’.
[31] Affidavit of Ms Dickinson filed 18 October 2022 in Annexure D at page 15.
I am not persuaded that the most current country information was not considered at all by the Tribunal. The member refers to “these recent attacks” and when all of the Tribunal’s reasons at [62] is read in context with other parts of the reasons,[32] it is likely the member did consider the May 2017 attacks and violence. There is no good reason articulated by the Applicant for reading down “recent attacks” to exclude the May 2017 attacks when they were referred to elsewhere in the Tribunal’s reasons, including at [61], and also covered by the Eshhad information noted in the Tribunal’s reasons at [62].
[32] Especially where particular reference is made to May 2017 in the Tribunal’s reasons at [31] and [61].
Additionally, I am not persuaded that the 31 May 2017 media release was not considered because it is expressly referred to in the Tribunal’s reasons at [15] and at [61], immediately before the deliberative paragraph of the Tribunal’s reasons. Further, the Tribunal’s reasons at [77] say:
I have had regard to the media release from the Honourable Alex Hawke, Assistant Minister for Immigration and Border Protection. I note that the media release indicates the intention of the Minister to review cases of Copts in Australia. I note the Minister highlights that like any other visa applicant, each case will be assessed on its merits with careful consideration given to the identity, authenticity of documents, credibility of claims and character of the applicant. The Tribunal has completed an assessment of the applicant's claims in line with this description. If the applicant wishes, he has the capacity to seek a more favourable outcome from the Minister.
To the extent that Ground 1 and the submissions in support of it rely solely on asserted failure to consider evidence relied upon by the Applicant and referred to at [15(a)] of these reasons, the ground fails for the reasons above and because I largely accept the submissions of the First Respondent referred to at [22] of their outline of submissions filed 31 October 2022.
Concerning the asserted failure to consider the Human Rights Watch and Amnesty International reports, they are indirectly referred to because of the reference to the 28 June 2017 submissions in the Tribunal’s reasons at [61]. As the information covered in the reports was substantially the same as that referred to in the DFAT and Eshhad information, it is likely that the substance of their content was considered. I am not persuaded that the Tribunal did not consider them at all.
However, that does not fully answer the ground of review because, as I understand the Applicant’s case, he argues that the Tribunal failed to consider the most recent or current country information for the purpose of assessing whether the Applicant had a well-founded fear of persecution based on his Coptic Christian religious beliefs. That is, in undertaking the predictive exercise described at [23] of these reasons.
As I understand the contention, it is argued that the Tribunal failed to appreciate that:
(a)The most recent information about violence in May 2017, including the 26 May 2017 attack in Minya, was not captured in the DFAT country information report of 19 May 2017;
(b)Human rights organisations had heightened concerns about the risk of violence and attacks directed towards Christians;[33] and
(c)DFAT was intending on updating its country information because of the May 2017 attacks and that this was impacting on the government’s attitude to its protection obligations, because of risks “in recent days” as referenced by Assistant Minister Alex Hawke in the 31 May 2017 media release.
[33] The Amnesty International report and the Human Rights Watch Report.
Understood in the way described at [50] and [51] of these reasons together with the Applicant’s written submissions at [12], the purported error is characterised as a failure on the part of the Tribunal to perform the statutory task imposed on it as discussed in MZTYS.[34]
[34] at [31] to [36].
I have come to the conclusion that the member did not undertake the predictive exercise required and described usefully in MZTYS at [35]. Instead, he sought to analyse whether there had been qualitatively an increase in violence or attacks meaning that the risk had increased. I effect, his assessment was retrospective, comparing the past to the present. This was not what was required according to the legal principles established by the Full Court of the Federal Court in my view.
Whether there had been an increase in violence was not the relevant question to answer. The relevant question was, in view of the recent information about attacks and violence towards Coptic Christians, despite rejecting some claims connected to his religious beliefs, was there a real chance that the Applicant would at risk of being subjected to the type of harm which attracts protection obligations.
The required approach by the Tribunal was as follows:[35]
…It is appropriate to recall how the task was described by Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395) at [73]-[76]:
The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
…
[original emphasis]
[35] MZTYS at [35].
In my view the Tribunal did not follow the required task in the way described. Instead, it focussed on whether the country information satisfied him that there were increased risks because of increased violence/attacks.
The adverse credit findings by the Tribunal about claims made by the Applicant and referred to at [7] and [8] of these reasons, cause some doubt about the materiality of the failure to consider described at [50] to [56] of these reasons. However, if the Tribunal misconstrued the Applicant’s claims and failed to consider them as required by law, I am satisfied that the error was material in the sense described in Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
Conclusion
As the ground of review has succeeded, the matter should be remitted to the Tribunal for redetermination by another member and the relief sought is granted.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 14 February 2023
0
12
0