SZRTP v Minister for Immigration
[2013] FCCA 449
•5 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRTP v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 449 |
| Catchwords: MIGRATION – Application for review of recommendation of Independent Protection Assessment Reviewer – alleged illogicality and irrationality – whether no evidence to support finding – no error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 476, Pt.7 |
| Cases cited: PlaintiffM61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Shop, Distributive and Allied Employees Association v National Retail Association(No 2) [2012] FCA 480 SZOYU v Minister for Immigration & Anor [2012] FMCA 316 Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 Appellant P119 /2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCAFC 230 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Wilkie v National Storage (Operations) Pty Ltd [2012] FMCA 653 Different Solutions Pty Limited v Commissioner, Australian Federal Police [2008] FCA 1571 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297; 164 ALR 548; 73 ALJR 1274 |
| Applicant: | SZRTP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J BARTLETT, IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 1920 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 19 February 2013 |
| Date of Last Submission: | 5 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Afshar |
| Solicitors for the Applicant: | Allens Linklaters |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 5 September 2012, and amended on 22 November 2012, is dismissed.
Leave is granted to the first respondent to file and serve written submissions on the Application for Costs by 12 June 2013.
Leave is granted to the applicant to file and serve written submissions on the Application for Costs by 19 June 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1920 of 2012
| SZRTP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| J BARTLETT, IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 5 September 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 22 November 2012, seeking review of the recommendation made by Ms J Bartlett, in her capacity as Independent Protection Assessment Reviewer (“the reviewer”), to the respondent Minister, that the applicant not be recognised as someone to whom Australia owed protection obligations under the Refugees Convention.[1]
[1] United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
The application to the Court also seeks injunctive relief and thereby engages the jurisdiction of this Court in the manner explained by the High Court in PlaintiffM61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319.
Background
The applicant is a citizen of Afghanistan (Court Book – “CB” – CB 1). On arrival in Australia he was classified by Australian immigration authorities as an “irregular maritime arrival” and taken to Christmas Island.
At that time the applicant completed a “Biodata” document (CB 1 to CB 7). Subsequently, and with the assistance of an interpreter in the Hazaraghi language (CB 8), the applicant was interviewed by an officer of the Minister’s department (“the entry interview”) (CB 8 to CB 35).
Protection Obligations Determination
The applicant subsequently applied for “Protection Obligations Determination” (“POD”) (CB 36 to CB 82=1). That POD application was accompanied by a Statutory Declaration, made by the applicant on 22 May 2011, in which he set out his claims to protection (CB 99 to CB 102). [I note that in the Court Book the applicant’s Statutory Declaration appears after the POD decision however, given the date on that statutory declaration and, in context, I understood that document to have been submitted prior to the POD decision.]
The applicant’s claims to protection can be summarised as follows:
1)He is a Shia Muslim of Hazara ethnicity ([1] and [4] at CB 99).
2)He was born, and grew up, in “…a village called Sang[e] Shanda of the Jaghori district in the Ghazni province…” ([2] at CB 99). That village had “approximately 120 houses” ([4] at CB 99). His village “relied upon Angori and Sang[e] Masha for supplies (other towns)” ([4] at CB 99).
[I note that the spelling of Sange Shanda and Sange Masha varies throughout the Court Book. For the sake of consistency, I have adopted in this judgment the spelling used by the reviewer in her statement of assessment. That is, Sange Shanda and Sange Masha.]
3)The applicant claimed to fear harm because his paternal uncle had worked for a politician and, as a result of that work, his uncle was sought by the Pashtuns and the Taliban ([10] – [11] at CB 100). The applicant’s uncle was attacked and, although injured, he escaped to Kabul ([11] at CB 100).
4)Following the attack on his uncle, “3 Taliban” came to the applicant’s home and searched for his uncle. When they did not find the applicant’s uncle, they took the applicant from his home to the “desert”. He was physically assaulted and detained for “2 or 3 hours”. The applicant was returned to his home, however he was told by the men that they would come for him in two days and that, in the interim, he was to find out where his uncle was so that he could tell them ([12] at CB 100).
5)The applicant decided to flee Afghanistan before the men returned ([13] at CB 100). He travelled to Pakistan and then to Australia ([13] at CB 100).
6)If he returned to Afghanistan, the applicant claimed, variously, that he would “be killed” ([14] at CB 100), “persecuted because I am Hazara” ([15] at CB 100), “persecuted by Taliban because I am Shia” ([16] at 100) and prevented by the Taliban from practising his faith and expressing his “cultural origins” ([17] – [18] at CB 100). Further, that he would not be protected by the authorities and therefore would be unable to live safely in Afghanistan ([19] – [20] at CB 100).
On 29 June 2011, the applicant was notified that an officer of the respondent Minister’s department (“the departmental officer”) was not satisfied that the applicant was a person to whom Australia had protection obligations (CB 83).
The officer of the Minister’s department set out her reasoning in a statement headed “Protection Obligations Evaluation Outcome” (CB 85). Relevantly, the officer accepted that the applicant was a Hazara Shia from Afghanistan (CB 90.8). However, the officer did not find plausible the applicant’s claim to have been kidnapped, beaten and subsequently released by the Taliban (CB 91.7).
Further, “given the [applicant’s] evasive and inconsistent responses at interview” the departmental officer found the applicant was not “a witness of truth” (CB 92.5). This led the departmental officer to find that the applicant was not of continuing interest to the Taliban, nor the Pashtuns, on account of any political opinion imputed to him because of his uncle (CB 92.5).
Having regard to country information, the departmental officer was not satisfied that the applicant faced a real risk of serious harm if returned to Afghanistan because of his Hazara race (CB 92.9 to CB 95.2). Nor that he would be prevented from practising his Shia Muslim religion if he returned to Afghanistan (CB 95.2 to CB 96.2). While the officer noted that there were general dangers in Afghanistan, including by militants, she was not satisfied that these attacks were targeted at Hazaras or Shia Muslims (CB 98.2).
Independent Obligations Assessment
Following the refusal of the applicant’s POD request, on 29 June 2011, the applicant’s application was “…automatically referred for an Independent Obligations Assessment” (CB 83.4 and CB 82).
On 20 July 2011, the applicant’s representatives provided written submissions to the reviewer in support of the applicant’s claims to protection (CB 103 to CB 157, including attachments). Those written submissions also made reference to the findings made by the departmental officer.
The applicant’s representatives again wrote to the reviewer on 4 August 2011 (regarding a “recent incident” in Afghanistan) (CB 158), 11 August 2011 (regarding “concerns in relation to an error in his entry interview and his application for refugee status”) (CB 159) and 15 February 2012 (regarding “New Developments in the Circumstances of [the applicant’s] Uncle”) (CB 250). On 31 October 2011 and 20 January 2012 the applicant’s representatives provided further supporting documentation to the reviewer (CB 160 to CB 163 and CB 169 to CB 249).
On 2 December 2011 an officer of the Minister’s department wrote to the applicant’s solicitor and advised that the department was “…undertaking a check of [his] case to ensure that [his] primary Protection Obligations Determination remains current…” (CB 164.2). The applicant was invited to submit any new, and relevant, information (CB 164). The applicant’s representatives provided further information on 12 December 2011 (CB 166 to CB 168).
The applicant was interviewed by the reviewer on 24 February 2012 ([24] at CB 267). He was assisted at that interview by an interpreter in the Hazaraghi language. His representative was also present.
Following the reviewer’s interview with the applicant, the applicant’s representatives provided further submissions to the reviewer (by covering letter dated 8 March 2013) (CB 251 to CB 258).
By letter dated 5 April 2012, the applicant was notified that the reviewer had recommended that he not be recognised as a person to whom Australia owed protection obligations (CB 259). The reviewer’s “findings and reasons” were set out in her “Independent Protection Assessment” (“statement of assessment”) ([72] at CB 284 to [94] at CB 291), a copy of which was provided to the applicant (CB 259).
I note, relevantly, that in her statement of assessment, the reviewer recorded that, at the interview with the applicant, she had asked him “…approximately how many families lived in the Sange Shanda area, not just his immediate village” and that the applicant had responded “120 families” ([25] at CB 267). Further, that when she asked the applicant “…if there had always been that amount of families”, he had said that “there was may be ten or fifteen families leaving and coming back” ([25] at CB 267). When the reviewer noted during the interview that independent information indicated that the Sange Shanda area was much bigger than 120 families, the applicant’s evidence was said to be that “…there are about 120 houses, in one house there may be two families” ([25] at CB 267).
Further, the reviewer’s statement of assessment noted that, at the interview, she had asked the applicant “…how far in distance (miles or kilometres) was it to Sange Masha” from Sange Shanda, to which the applicant ultimately responded that it was “about a three hour walk, or one hour by vehicle” ([25] at CB 267). Further, that the applicant gave evidence that, to get to Sange Masha from Sange Shanda, “…a person has to go across the mountain, there is only one road, there is a mountain, valley and a small river to cross” ([25] at CB 267).
The reviewer’s statement of assessment reveals that, in making her recommendation, she had regard to country information which indicated, relevantly, that ([53] at CB 272):
“According to the footnoted web-based sources, Sang[e] Shanda:
(i) Is located approximately 6 miles north west of Sanga Masha. Sange Masha is the administrative centre of Jaghori District, and;
(ii) Has an area population of 5000 families.”
[Emphasis in the original. Footnotes omitted.]
The country information “footnoted” at [53](i) is two “urls”, or website addresses (see footnote 2 at CB 272). Specifically, and >
The footnote to [53](ii) was “page [3-Health]” of a United Nations High Commissioner for Refugees (“UNHCR”) report titled “Sub Office Central Region District Profile: Jaghori” and dated 30 July 2002 (see footnote 3 at CB 272). A link was provided to that pdf (>
The reviewer indicated that she was “…not overly concerned with inconsistencies in [the applicant’s] oral evidence” ([74] at CB 285). However, noting that the departmental officer had observed that some of the applicant’s responses were “evasive and inconsistent” at the POD interview, the reviewer found some of the applicant’s responses at the interview to also be “vague and equivocal” ([74] at CB 285). Further, the reviewer found the applicant’s evidence as to the “area population of Sange Shanda and its distance to Sange Masha” to be inconsistent with independent country information ([74] at CB 285).
The reviewer was not satisfied that the applicant’s “avoidant responses” during the interview and the “disparity between his claims and the independent information” could be explained by factors such as “language barrier, [the applicant’s] psychological state, poor memory or limitations of independent information” ([74] at CB 285). For these reasons, and the matters set out in [76] at CB 285 to [78] at CB 286, the reviewer found that the applicant’s claims were not credible ([74] at CB 285). Importantly, at [77] (at CB 286) the reviewer accepted independent information that:
“…the Sange Shanda area in which [the applicant] was born and lived throughout his life has a population of 5000 families and is located approximately six miles north-west of Jaghori’s administrative centre Sange Masha.”
[Footnote omitted, although I note that the footnote for this statement contained the two websites and the UNHCR report as referred to earlier and set out above at [21] – [22].]
Application to the Court
The grounds of the application, as amended, are as follows:
“1. The Applicant gave evidence to the Independent Assessment Reviewer (Reviewer) that he came from a village called Sange Shanda that had a population of about 120 families and was about a three hour walk or one hour drive from Sange Masha (the Evidence).
2. The Reviewer found that the Sange Shanda area had approximately 5,000 families and was about 6 miles northwest of Sange Masha (the Finding).
3. The Reviewer relied on the perceived inconsistency between the Finding and the Evidence as a ground for determining that the Applicant was not a credible witness.
4. There was no evidence to support the finding of inconsistency. Alternatively, the finding of inconsistency between the Evidence and the Finding was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.
Particulars
a. There is a village called Sange Masha that is approximately three hours walk south of Sange Masha that matches the description provided by the Applicant to the Reviewer.
b. There is no evidence of a village called Sange Shanda that is approximately 6 miles north west of Sange Masha.
c. Evidence that the “Sange Shanda area” had approximately 5,000 families cannot logically be regarded as inconsistent with evidence that the village called Sange Shanda has a population of approximately 120 houses.”
[Emphasis in the original.]
Before the Court
At the final hearing, Mr P Afshar of counsel appeared for the applicant. Mr O Jones appeared for the first respondent.
The matter was first before the Court on 12 September 2012. On that occasion, by consent, orders were made listing the matter for final hearing and setting out a timetable for the filing of documents. Relevantly, those orders provided that the applicant was to file and serve any affidavit containing additional evidence to be relied upon, and any amended application, by 9 November 2012. Further, that the first respondent was to file and serve any affidavit evidence by 7 December 2012.
On 9 November 2012, orders were made, again by consent, in Chambers extending time for the filing of those documents to 23 November 2012, for the applicant, and 19 December 2012, for the first respondent.
Evidence before the Court
In accordance with that amended timetable (as set out above at [28]) on 22 November 2012, the applicant filed an amended application and the following affidavits:
1) Edward Charles Harris Bangs, lawyer, sworn on 21 November 2012 (“the first affidavit of Mr Bangs”), annexing a transcript of the reviewer’s interview with the applicant conducted on 24 February 2012 (“annexure A” to the first affidavit of Mr Bangs).
2) Justin Gareth Simpkins, lawyer, sworn on 22 November 2012, annexing:
(i)An “excerpt” of the “United Nations office for the Coordination of Humanitarian Affairs map of Ghanzi Province” ([2] of Mr Simpkins’ affidavit). Within that map, Mr Simpkins had “located”, and “circled in red”, two places named “Sang Shanda” and one place named “Sang Masha” ([2] of Mr Simpkins’ affidavit) (“annexure ‘JGS1’”).
(ii)Images of Sange Shanda at different scales printed following a “Google search using Google Maps of ‘Sang Shanda Afghanistan’” ([3] of Mr Simpkins’ affidavit) (“annexure ‘JGS2’”).
At the final hearing, the applicant sought leave to rely on those two affidavits (set out at [29](1) and (2) above). There was no objection by the Minister and leave was granted.
On 6 February 2013, that is after the time allowed for in (consent) orders made by the Court, the applicant sought to file a further affidavit by Mr Bangs, sworn on 5 February 2013, (“the second affidavit of Mr Bangs”) annexing:
1) The location of a place named “Sangi-Shanda” that “appeared” when Mr Bangs put into his web browser on 1 February 2013 (“annexure ‘ECB1’”) ([2] of Mr Bangs’ second affidavit). That is, the “url” referred to in the reviewer’s statement of assessment at footnote 2 (at CB 272) and footnote 31 (at CB 286) (see [21] above).
2) The location of a place named “Sang Shanda”, which “appeared” when Mr Bangs’ “typed ‘Sang Shanda’ into the ‘Search’ box’ in “annexure ‘ECB1’” (“annexure ‘ECB2’”) ([3] of Mr Bangs’ second affidavit).
3) The location of a place named “Sangshandah”, “found by using the zoom feature of the Map in annexure ‘ECB1’” and by Mr Bangs’ “hovering [his] cursor over various symbols listed in the Legend” (“annexure ‘ECB3’”) ([4] of Mr Bangs’ second affidavit).
4) A larger scale depiction of “Sangshandah” (“annexure ‘ECB4’”) ([5] of Mr Bangs’ second affidavit).
5) A map showing “Sang-e Masheh” with “Sangi-Shanda”, “Sangshandah” and “Sang Shanda” circled (“annexure ‘ECB5’”) ([6] of Mr Bangs’ second affidavit).
6) A “screen shot” of the PDF document entitled “2B” from the “Country Information CD” provided to the applicant by the first respondent. That map was “zoomed to 300% around the place called ‘Sange Masha’” (“annexure ‘ECB6’”) ([7] of Mr Bangs’ second affidavit).
7) A copy of the document that was produced when Mr Bangs’ “performed a Google search of the phrase ‘UNHCR Sub Office Central Region District Profile: Jaghori 30 July 2012’” (as referred to by the reviewer in footnote 3 at CB 272) (“annexure ‘ECB7’”) ([8] of Mr Bangs’ second affidavit).
On 11 February 2013, again, after the time provided for in the consent orders, the Minister sought to file an affidavit by Oliver Richard Jones, lawyer, sworn on 11 February 2013, which annexed a map printed from the website “trailbehind” (“annexure ‘ORJ1’”).
At the final hearing, the applicant sought to file in Court, and rely upon, a third affidavit by Mr Bangs, sworn on 19 February 2013 (“the third affidavit of Mr Bangs”). In that affidavit Mr Bangs deposed to having listened to a portion of the recording of the interview with the reviewer (in particular, that portion set out at T38 to T40), and that that relevant portion (with one exception) was not “translated” to the applicant ([2] – [4] of Mr Bangs’ third affidavit).
The three affidavits filed, or sought to be filed, out of time, were the subject of various disputes before the Court (that is, the second and third affidavit of Mr Bangs and the affidavit of Mr Jones – see [30] – [33] above).
While brief oral submissions were made by the parties’ representatives at the hearing, for the purpose of proceeding with the substantive submissions at the final hearing, the three affidavits were provisionally admitted. Leave was granted to both parties to file supplementary or further written submissions, following the hearing, addressing the admissibility of the affidavits, as well as the weight to be afforded to them should they be admitted into evidence. Supplementary written submissions were filed by both parties (referred to as “the applicant’s further written submissions” and “the first respondent’s supplementary written submissions”).
Ultimately, the disputed affidavit material does not assist the applicant in making out his case, as that case was pleaded and argued. In this light, I have left (perhaps unusually) the question of the admissibility of this material to later in this judgment (see [227] ff.). What immediately follows is the assessment of the applicant’s case as if the affidavits were admitted. That is, the applicant’s case at its highest.
The grounds of the amended application seek to take issue with the reviewer’s adverse findings as to the applicant’s credibility and the reliance by the reviewer on what she said were inconsistencies between the applicant’s evidence and country information before her.
The following paragraphs from the reviewer’s statement of assessment are relevant, and explanatory, here:
“[74] I am not overly concerned with inconsistencies in [the applicant’s] oral evidence between each of his interviews, such as: three persons came to his house one evening (entry interview, signed declaration) vs four persons came to his house (IPA interview); his captors let him go for one week (entry interview) vs they agreed to give him two days (signed declaration, POE and IPA interviews), and; he left Sange Shanda within a fortnight of his uncle being ambushed in August 2010 vs he departed Afghanistan in July 2010. However, as was raised with [the applicant] during the IPA interview some [of] his responses, particularly to questions seeking further detail to generalised statements made by him, were vague and equivocal. The POE officer observed some of [the applicant’s] responses at that interview were “evasive and inconsistent”. Additionally, fundamental elements of [the applicant’s] evidence, such as the area population of Sange Shanda and its distance from Sange Masha do not accord with independent information about those matters. When aspects of credibility, namely [the applicant’s] vague responses were discussed at the conclusion of the interview, [the applicant] did not respond. The advisor submitted on [the applicant’s] behalf that he suffered heart palpitations when stressed and he had memory problems. The advisor requested, and in turn I granted, a fortnight post hearing period in which the advisor could forward to me any medical information to be taken into account in assessing [the applicant’s] credibility. As at the date of this recommendation no medical information has been received. I am not satisfied [the applicant’s] avoidant responses during the IPA interview and the disparity between his claims and the independent information are explicable by factors such as language barriers, [the applicant’s] psychological state, poor memory or limitations of the independent information. For these reasons and matters as discussed in the following paragraphs 76 to 78, I find [the applicant’s] claims pertaining to his personal experiences in August / September 2010 in Sange Shanda are not credible.
…
[77] I accept the independent information that Jaghori District of Ghazni Province is ethnically 100% Hazara and the prevailing view of different sources is that residents in the district remain safe from Taliban, insurgent and / or criminal insecurity.[2] I accept the independent information that the Sange Shanda area in which [the applicant] was born and lived through his life has a population of 5000 families and is located approximately six miles north-west of Jaghori’s administrative centre Sange Masha.[3] I accept the independent information that the Provincial Reconstruction Team considers Jaghori a ‘permissive’ environment (in terms of foreign presence being able to undertake project work) and that in October 2010 team members spent two days in Sange Masha working on public building projects, mixing with locals and at times walking freely through the streets and bazaar area unprotected.[4] I note [the applicant’s] entry interview evidence that political groups were not operating in his area[5] is wholly consistent with the above independent information and thus I accept it.”
[Footnotes renumbered]
[2] Aims Provincial Development Plan, Ghazni Provincial Profile
[3] UNHCR Sub Office Central Region District Profile: Jaghori 30 July 2002 – page [3 – Health] [paragraph ...]
[4] RC-East.Com Taliban, ethnic tensions, toilets; all in a day’s work for Ghazni PRT 17 October 2010, Roling, K. [paragraph 53]
[5] Paragraph 16
The grounds of the application, as amended, proceed to challenge the reviewer’s reasons, set out above, as follows. First, the applicant gave evidence before the reviewer that he came from a village, Sange Shanda, which had a population of about 120 families and was located about a three hour walk, or one hour drive, from another town, Sange Masha.
Second, the reviewer found that Sange Shanda had about 5000 families and was about six miles north-west of Sange Masha.
Third, that the reviewer relied on what she perceived to be the inconsistencies between the applicant’s evidence and the country information, to find that the applicant was not a credible witness.
The amended application, itself, posits two attacks on the reviewer. The first is that there was no evidence to support the finding of inconsistency. The second was that the finding was irrational, illogical and not based on findings of fact supported by logical grounds.
When seen in light of the applicant’s initial written submissions, I agree with the Minister, that the complaints appear to emerge as follows.
First, there was no evidence for the reviewer’s finding as to the population of Sange Shanda and the distance between Sange Shanda and Sange Masha. Second, that it was irrational and illogical for the reviewer to find inconsistency between those findings and the applicant’s evidence. Finally, that the irrationality and illogicality infected the entire recommendation made by the reviewer.
However at the hearing, the applicant’s attack appeared to emerge as follows. First, the “no evidence” contention was no longer advanced as a separate, or distinct, ground. Rather, it was bound up in the applicant’s attack otherwise put and as set out below.
Second, and now the main thrust of the applicant’s attack, it was submitted that it was irrational and illogical for the reviewer to find inconsistency between the findings and the applicant’s own evidence. The assertion of “no evidence” was folded into this attack. That is, there was no evidence, and therefore it was illogical and irrational for the reviewer to make the finding of inconsistency.
Third, within this context, the applicant contended that any irrationality or illogicality in the reasoning of the reviewer was jurisdictional error. Once that had been established, the applicant contended that the Court would consider its discretion to grant the relief sought.
Given the “evolution” of the applicant’s attack it is necessary to set out in greater detail in this judgment the submissions made by both parties.
The Applicant’s Substantive Submissions
In relation to the grounds of the application to the Court, the applicant’s submissions were as follows.
There was evidence before the reviewer, provided by the applicant orally at the interview, in relation to the population of his village in Afghanistan (120 families) and its distance from Sange Masha (three hours walk, or one hour drive). Despite that evidence, the reviewer found that country information indicated that the applicant’s village “area” had a larger population (5000 families) and was located only a short distance from Sange Masha (6 miles north west of Sange Masha). The inconsistency between the applicant’s evidence on those matters and the country information, as found by the reviewer, was said by the applicant to be “a ground” for the reviewer determining that the applicant was not a credible witness.
As set out above, the applicant variously submitted that, first, there was no evidence to support the reviewer’s finding of inconsistency between his evidence and the country information, and/or second, that the finding of inconsistency was “irrational, illogical or not based upon findings or inferences of fact supported by logical grounds”.
The applicant submitted that if either of the complaints could be made out, the relief sought should be granted, as the Court could not be confident that the error made by the reviewer would not have affected the recommendation. That is, that the reviewer had made a jurisdictional error, not simply an error as to a finding of fact.
With respect to the population of the applicant’s village, the applicant submitted that, before the reviewer, his evidence had been that there were 120 families in his village. [I note that the applicant subsequently gave evidence to the reviewer that there were 120 homes, but each home could contain more than one family.] That is, in his specific village called Sange Shanda. However, the reviewer relied on information about the population size of the Sange Shanda area. That is, not the applicant’s specific village, but rather an undefined “area” around it.
In her statement of recommendation, the reviewer records that, at the interview, she asked the applicant how many families lived in the Sange Shanda area, not simply his village. However, the applicant submitted that, when regard was had to the transcript, that “area” was not defined and that the reviewer did not specifically ask the applicant about the “area”.
In support of this, the applicant took the Court to annexure “A” to the first affidavit of Mr Bangs. In particular, T2.7 to T3.4:
“JB And how big is that area that you were born in?
SZRTP Well, in Sange Shanda there are 120 families already.
JBHas there always been 120 families? Or about that amount of families?
SZRTPCould be 10 or 15 families on the move, going and leaving and coming back to the village
JBIn the Sange Shanda area, how many families would there be?
SZRTPThere 120 families I told you, those…around those people living in Sange Shanda.
…
JBI’ve looked up a bit of information about Sange Shanda and it talks about the area being much bigger than having 120 families.
SZRTPAh there are 120 house like, in one house is the family living like, two family living in the house, and some houses, on family living in the house.
INTI mentioned the family means (cannot distinguish word) 120 houses and so I myself ask the question from him, what you mean by house? You mean house, or you mean family, because in Afghanistan you say like I have house it means also I have family and I have other family included as well, so it means how many. He ask the question, so was 120 houses and families.”
Further, the applicant relevantly noted T24.5:
“JBSome of the other information I’ve looked…have looked at about Sange Shanda says that in that area there’s approximately 5,000 families.
SZRTPIf you’re talking about Sange Shanda, its about 100…well as I mentioned that I can’t I told you the number is 100, whatever houses. I talk about…specific about Sange Masha, not about the area close to Sange Masha. So that’s why I say 100 something he said what houses.
JB Mmm.”
The applicant did not refer to the following portion of the transcript [T24.7], however, in my view, it is ultimately important to the understanding of the applicant’s evidence:
“SZRTPOr they are…their area that’s which is Sarabullah, Sar Tala, Con Sar, Dala Towkus (names of places said in Hazaragi). They also belong to Sange Shanda. But I told about Sange Shanda the centre. Or maybe I didn’t mean the whole Sange Shanda which is…specifically not around Sange Shanda, just all of those places which he mentioned also belong to Sange Shanda. Well, maybe they call the Baluhjuwee (word said in Hazaragi) Baluhjuwee (word said in Hazaragi) is a name, Baluhjuwee (word said in Hazaragi) means if you go upper, maybe they also call it the loca…it just belongs to Sange Shanda”
The applicant submitted that, from those extracts of the interview (at [55] – [56] above), it was clear that the applicant was talking about Sange Shanda, as opposed to the broader “area” around it.
With respect to the distance between Sange Shanda and Sange Masha, the applicant contended that there was no attempt by the reviewer to reconcile the applicant’s evidence and the country information to which she had regard. In support of this assertion the applicant referred the Court to [25] of the reviewer’s statement of assessment (at CB 267). In particular, that the applicant gave evidence as to the time it took to travel to Sange Masha, while the reviewer spoke of distance in miles.
The applicant also relied on T3.4:
“JBOkay. And can you tell me how far it in distance to Sange Masha?
SZRTPYou mean, how that…walking or by car? By vehicle? From Sange Masha to Sange Shanda?
JBWell…I mean in measurement, like miles or kilometres.
SZRTPWell, I didn’t notice that how many kilometres is from Sange Shanda to Sange Masha, because there is no such traffic signs that how many kilometres takes from our village to Sange Shanda to Sange Masha.
JBAre you able to estimate how many miles?
SZRTPApproximately if you are walking take around three hours. If you got by vehicle or…take around one hour.
JBSo the road, if you were to travel by car from Sange Shanda to Sange Masha, tell me about the road. Is it a straight road or does it twist around a lot?
SZRTPNo, it’s it’s not straight. You have to go right and left and across the mountain.
JBSo it is just across one mountain?
SZRPTWell, there’s only one road that they have to go through from Sange Shanda to Sange Masha and it’s it’s come…it’s come mountain, it’s come valley, it seem like it’s a hill you have to cross and you have to cross, like, a small rivers, like…”.
Further, the applicant referred to T24.8:
“JBMmm. It says…The information I have is that Sange Shanda is about six miles from Sange Masha.
INT Six miles. Six miles is around 10 kilometres?
JBI’m sorry, I can’t, I I can’t convert…I can only say its say that it’s six…it’s approximately six miles from Sange Masha
SZRTPWell I do not know because there is no traffic signs as how long it takes from Sange Masha to Sange Shanda to show…Well, whenever I went to Sange Masha from my place when I went by walking or by cars, I told you that how long it takes.”
In addition, the applicant submitted that there was an assumption by the reviewer that the Sange Shanda she was speaking of was the same Sange Shanda that the applicant claimed to live in. The applicant submitted that that assumption was refuted by the country information before the reviewer. In particular, the applicant contended that the map relied on by the reviewer revealed a number of towns named Sange Shanda (or with various transliterations). Further, that there was no Sange Shanda “north west” of Sange Masha (with reference to [53](i) at CB 272of the reviewer’s statement of assessment).
With reference to [74] (at CB 285) (see [38] above), the applicant submitted that the population matter, and the distance matter, were “fundamental elements of [the applicant’s] evidence”. Further, that the alleged inconsistency between the “independent information” and the applicant’s evidence on those matters led the reviewer to find that the applicant was “not credible” ([74] at CB 285).
In support of his submission that relief should be granted, and with respect to the “no evidence ground”, or line of attack, the applicant referred the Court to SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 per Mansfield, Selway and Bennett JJ (“SFGB”). In particular, at [18] – [19] of that judgment:
“[18] The proceedings before us involve an appeal from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, leave was sought and granted for the appeal grounds to be amended. The effect of the amendment was that the arguments put before the primary judge (and on which he had decided the judicial review application before him) were abandoned. Instead a different argument was put. That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonable'. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
[19] This argument, if it were made out, would be sufficient to establish that the Tribunal had made a `jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was ‘Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (‘S20') at 62, 67, 76, 90-91.”
The applicant submitted that the Court in SFGB held that, if a decision maker made a finding and that finding was a critical step in the ultimate conclusion that was reached (in this case, the recommendation made) and there was no evidentiary basis for that finding, then that constituted jurisdictional error.
With respect to the “irrational or illogical” ground, the applicant referred to the principles set out in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) per Crennan and Bell JJ, and what was said to be the “sympathetic” view of Heydon J, and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 (“SZOOR”), especially per Rares J and McKerracher J. While acknowledging that the threshold set for irrationality or illogicality was “high”, the applicant submitted that it was sufficient that the illogicality “affect the decision” (SZOOR at [85] per McKerracher J). That is, contrary to the Minister’s submission, that the illogicality need not be “in the decision”, provided that it affected the decision (in this case, the recommendation).
In particular, and with reference to both the “no evidence” ground and the “irrational or illogical” ground, in the current case, credibility was said to be central to the reviewer’s ultimate recommendation and the reviewer’s findings in relation to credibility were based on “no evidence”. That credibility was “central” to the reviewer’s recommendation was said, by the applicant, to be revealed by the following.
First, the reviewer asked questions relating to credibility. It was dealt with “at the top of her findings” and she referred to it as “fundamental elements” of the applicant’s evidence.
Second, with reference to NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 (at [55] per Gummow J and quoting Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [104] per McHugh J, and with reference also to [3]-[4] per Gleeson CJ, [80]-[81] per Gaudron and Gummow JJ, [131] per Kirby J, [172] per Hayne J, [210]-[211] per Callinan J), the applicant submitted that “once a breach of natural justice is proved, a Court should refuse relief only when it is confident that the breach could not have affected the outcome”.
It was the applicant’s contention that, in the current case, the Court could not be certain that the error would not have made a difference to the reviewer’s recommendation. In particular, that while other factors that could have affected the applicant’s credibility were present, the adverse credibility finding was “especially affected by the inconsistency finding”.
In light of the reviewer referring to those matters as “fundamental elements” the applicant submitted that the Court should find that the applicant’s evidence in this regard was fundamental to the entirety of the applicant’s case, not just an “insignificant aspect”. In the circumstances, should error be found in relation to the reviewer’s finding of inconsistency, then relief should be granted to the applicant as that error infected the entire recommendation made by the reviewer, as opposed to just an “insignificant aspect”
The Applicant’s Submissions: Not Referrable to the Grounds of the Application
In addition, I note that the applicant submitted that the reviewer’s adverse finding on the applicant’s credibility had, in part, also been due to the applicant’s advisor failing to provide medical information following the interview and the applicant’s lack of response at the conclusion of the interview when issues going to his credibility, namely his “vague responses”, were put to him ([74] at CB 285).
In relation to the former, the applicant noted that the opportunity to provide medical information was said, by the reviewer, to have been sought by the applicant’s advisor at the interview ([74] at CB 285). With reference to the transcript at T40, the applicant submitted that the reviewer had, despite her assertion to the contrary in the statement of assessment, provided the applicant with two weeks to provide “…independent country information in relation to some of the issues” that were explored at the interview (T40.5). That is, the applicant was not to provide medical information, nor a medical report.
Further, when the applicant’s representative had requested, at the interview, that the applicant be afforded the opportunity to provide medical evidence (T39.2 to T39.4), the reviewer had, ultimately, indicated that “internal inconsistencies weren’t something that, that was a concern” (T40.4). In light of that statement by the reviewer the applicant’s representative had only sought to provide “independent country information” (T40.5).
With respect to the latter, the applicant submitted that he had not responded in that section of the interview as the reviewer had directed her comments to his advisor. Further that, with reference to Mr Bangs’ third affidavit (if it were to be admitted) that discussion between the reviewer and the applicant’s adviser was not “translated” for the applicant. That is, he was not given the opportunity to respond as he was not aware of the issues that were being raised by the reviewer.
The Minister’s Substantive Submissions
As referred to above, the Minister understood the applicant’s case to be that particular findings of fact were made without evidence, that the reviewer then irrationally made a finding of inconsistency as between the applicant’s evidence and those impugned findings of fact and that, as a result, the ultimate recommendation made by the reviewer was irrational and relief should be granted. That is, that the “no evidence” ground went to the reviewer’s finding on the country information, while the “irrational” ground went to the inconsistency finding.
First, in relation to the “no evidence” ground, the Minister noted that the “no evidence ground cuts out when even a skerrick of evidence appears” (Shop, Distributive and Allied Employees Association v National Retail Association(No 2) [2012] FCA 480 at [31] per Tracey J).
It was the Minister’s contention that, in the current case, there was, at least, a “skerrick” of evidence before the reviewer. In particular, with respect to the issue of the population of the applicant’s village, the Minister submitted that the reviewer’s finding that the “Sange Shanda area” had a population of 5,000 families was supported by the “footnoted UNHCR report” (a copy of which was annexed to the second affidavit of Mr Bangs (annexure “ECB7”) – noting that leave to rely on that affidavit was otherwise objected to by the Minister.) That report described Sange Shanda “area” as “comprising 5000 families”. That, in the Minister’s submission, was sufficient evidence to ground the finding and, therefore, to preclude the applicant’s “no evidence” ground.
With respect to the finding on country information about the distance between Sange Masha and Sange Shanda, the Minister submitted that the applicant could not discharge the burden to make out his ground. That is, the applicant had failed to show that there was “no evidence” to found that finding. Further, that the material the applicant sought to adduce (if admitted) was too speculative to allow the Court to conclude that there was no evidence before the reviewer.
With reference to Mr Jones’ affidavit (if admitted) the Minister submitted that, if one searched the “trailbehind” website for “Sange Shanda” then the website states that Sange Shanda is 7.9 miles away. That, in the Minister’s submission, was sufficient to show that there was some evidence, or a “skerrick of evidence”, to found the reviewer’s conclusion that country information showed that Sange Shanda was “approximately six miles” from Sange Masha ([77] at CB 286).
With respect to the inconsistency finding, the Minister submitted that, in light of the transcript of the hearing, it was open to the reviewer to find (as was found by her) that the applicant’s evidence at the interview was inconsistent with the country information.
In relation to the population of Sange Shanda, and with reference to T2 – T3 (see [55] above), the Minister submitted that it was clear that the reviewer was asking for the population of the Sange Shanda “area”. Further that, with reference to T2.9 (“There are over 120 families around those people living in Sange Shanda…”) and T24 (“I can’t talk about – specific about – Sange Masha, not about the area close to Sange Masha”), the applicant clearly recognised that the reviewer was referring not to the population of the precise location (Sange Shanda), but rather, the broader area.
On that basis, the Minister submitted that, it was reasonably open to the reviewer to come to the conclusion she did and, as such, it could not be said that her finding of inconsistency with respect to the population of Sange Shanda was irrational or illogical.
Further, with respect to the inconsistency finding, between the applicant’s evidence and the country information (as found by the reviewer), as to the distance between Sange Shanda and Sange Masha, the Minister submitted that, in light of the applicant’s evidence as to the time it took for him to travel between the two towns and the reviewer’s finding on the country information (for which the Minister submitted there was evidence), it was open to the reviewer to find that there was an inconsistency. That is, it was open to the reviewer to find that she did not accept that it took one hour, by “car”, for the applicant to travel the “approximately 6 miles” between Sange Shanda and Sange Masha. That was a finding reasonably open to her on the evidence before her and for which minds may differ. [I note that the applicant’s evidence was that it took one hour to travel between Sange Shanda and Sange Masha by “vehicle” ([25] at CB 267), while the reviewer found that it took one hour to travel between the two places by “car” ([41] at CB 270).]
The Minister submitted that, in any event, for irrationality or illogicality to be made out it was not enough to establish that an intermediate, or antecedent, finding of fact was irrational or illogical (with reference to SZOYU v Minister for Immigration & Anor [2012] FMCA 316 (“SZOYU”)). Rather, it was the decision or, in this case, the recommendation, to which the test of illogicality and irrationality (as enunciated in SZMDS) applied.
In answer to the applicant’s submission that all that was necessary was that the illogicality or irrationality was “such as to affect the decision” (SZOOR at [85] per McKerracher J), the Minister submitted that further guidance was provided by Rares J in SZOOR. In particular at [15] where his Honour stated that:
“The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.”
That is, that it is not sufficient that a decision (or recommendation) “exhibit one or two irrational characteristics”. Rather, in light of SZMDS and SZOOR, it must be “so tainted that no reasonable mind looking at the evidence could have reached the conclusion”.
In relation to the reviewer’s adverse credibility findings, the Minister submitted that, contrary to the applicant’s submissions, the reviewer had not found the applicant to not be a witness of credit. Rather, the reviewer found the applicant’s account of his experiences at a particular time to be not credible. That is, the reviewer’s finding related to a specific part of the applicant’s evidence, as opposed to the applicant himself. Further, that credibility finding was “made up of a number of matters above and beyond” the inconsistency finding regarding the impugned population and distance matters.
In answer to the applicant’s complaint that elements of the interview were not translated to him and that the reviewer made a finding that, at that part of the interview not translated, he was non responsive, the Minister submitted that that complaint was not raised by the applicant in the amended application and, therefore, it was not appropriate that the Court give it “attention”. Particularly given that the applicant had been “professionally” assisted.
In any event, the Minister noted that the applicant’s representative was present at the interview and was in a position to speak on the applicant’s behalf. Indeed, that the applicant’s representative did speak on the applicant’s behalf.
The Applicant’s Substantive Submissions in Reply at the Hearing Before the Court
The applicant clarified that he did not seek to rely on the maps annexed to Mr Bangs’ second affidavit (if admitted into evidence) for the purpose of establishing the distance between Sange Shanda and Sange Masha. Rather, the applicant sought to use the maps to show that, first, “the reviewer got it wrong” and, second, that there were, at least, two Sange Shandas and that, in light of that evidence, any reasonable person would not have made the “assumption” that the reviewer made. That is, that they and the applicant were speaking of the same location.
With respect to the reviewer “getting it wrong”, I understood the applicant’s argument to be that the reviewer was “wrong” to find that there was an inconsistency between the applicant’s evidence as to how long it took him to travel between the two locations, and her finding that country information indicated that Sange Shanda was “approximately” six miles from Sange Masha. That was because there was no evidence before the reviewer as to the type of “vehicle” the applicant was travelling in (that is, whether it was a bicycle, car or bus), the state of the roads or any difficulties encountered while travelling.
Further, that the Minister’s submission that the reviewer did not find it plausible that it would take the applicant one hour to travel approximately six kilometres (thereby giving rise to a finding of inconsistency between the country information and applicant’s evidence) required the Minister, and the Court, to “join the dots” in the reviewer’s reasoning. That is, that that was a “missing link of logical reasoning” and that the reviewer had failed to give the applicant the opportunity to reconcile, or even for her to reconcile, the applicant’s evidence and her findings of fact based on the country information.
In relation to the inconsistency finding with respect to the population of Sange Shanda, the applicant, in submissions in reply, accepted that there was evidence for the reviewer’s finding that the population of the Sange Shanda area was 5000 families. However, the applicant’s complaint was said to be that “no amount of evidence”, unless it was about the population of Sange Shanda village itself (that is, as opposed to the area), could render inconsistent the applicant’s oral evidence as to the population of the village and the reviewer’s finding as to the population of the area.
In response to the Minister’s submission that the irrationality or illogicality needed to relate to the finding, as opposed to an antecedent fact, the applicant submitted that the inconsistency finding affected, or “permeated”, the whole decision. In support, the applicant referred to the fact that the applicant was confronted with the country information at the beginning of the interview and that, at the end of the interview, although he sought to clarify his evidence, that clarification was not accepted. Nor was it even referred to in the Reviewer’s statement of assessment. Before the Court, the applicant’s counsel indicated that this submission was made for the purpose of “highlighting…the circumstances in which the decision was made”. Ultimately, the applicant’s counsel sought to “move back” from that submission.
Consideration
As set out above, the applicant’s attack shifted emphasis throughout the proceedings and sought to navigate through a number of propositions not available to him in the circumstances presented. On the questions of irrationality and illogicality and “no evidence”, and the other bases the applicant sought to rely on, or explain, before the Court, the following stands in answer.
First, as was made, in my respectful view, clear by the plurality is SZMDS per Crennan and Bell JJ at [130] (and in the “sympathetic” approach taken by Hayden J at [78]):
“In the context of the Tribunal’s decision here, ‘illogically’ 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.”
Second, irrationality and illogicality in findings antecedent to, or intermediate to, the reviewer’s conclusion, on their own, cannot assist the applicant. As was, in my respectful view, also made clear in the understanding of SZMDS provided in SZOOR (see above at [86]) (see also SZOYU, and Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 (“SZNPG”) at [20] per North and Lander JJ), any illogicality in reasoning will not automatically lead to jurisdictional error in every case. Such illogicality or irrationality must affect the decision. The applicant appeared to recognise this, in part, in his submissions to the Court, when he sought to also argue that the illogicality and irrationality “infected” the recommendation as a whole.
However, the applicant’s complaint proceeds on the premise that had the reviewer properly assessed, or understood, the country information as to the size of the applicant’s home town (“the population matter”) and its distance from a larger regional town (“the distance matter”), then she would not have come to her ultimate recommendation that the applicant did not engage Australia’s protection obligations.
The applicant’s attack before the Court sought to blur the distinction between what was said to be an irrational or illogical finding with what was said to be an irrational or illogical “decision”. However, the distinction between a decision and a finding is important in light of the authorities referred to above. Even if the applicant were to establish some illogicality or irrationality in the particular finding which is the focus of his grounds, jurisdictional error would not be revealed unless the irrationality or illogicality affected the decision, in this case recommendation, as such.
In my view, the applicant’s attack, even if his affidavit evidence were to be admitted, fails at both levels. Noting again that the test for irrationality and illogicality is not whether the correct “decision” (in this case, recommendation) was made, but whether minds may differ on the conclusion.
Focussing on the impugned findings first, the reviewer found inconsistencies between the applicant’s evidence and findings of fact made on the country information before her. A number of matters are relevant to this.
First, the applicant’s “no evidence” contention cannot be sustained, even if the applicant were to have continued to press it as set out in the grounds of the amended application. There was certainly various evidence from the applicant as to the “size” of his home town and its “distance” from the relevant larger town (see for example as set out at [55] – [56] and [60]-[61] above and [25] at CB 267 and [41] at CB 270).
As set out above the distinction between the two sets of maps is that the map at annexure “ECB6” was created from the CD of relevant documents given by the Minister to the applicant and which the Minister “conceded” were the same as those before the reviewer. The others were created by accessing, even, albeit the same websites referred to by the reviewer, but accessed over a year later.
Before the Court, the applicant submitted that topography does not change to the extent that what is represented in the maps “accessed” about one year later by Mr Bangs would substantially represent what the reviewer saw.
Barring some cataclysmic events (earthquakes and the like) that may be the case. However, what is missing in the applicant’s “logical” connection is that maps kept electronically can be accessed and changed at any time, at least by those who “control” the website. [For example, further details, such as additional place names or roads, or further features could have been added.] There is nothing in Mr Bangs’ affidavit, or otherwise in the applicant’s case before the Court, to say that the maps reproduced now were in the same state as at the relevant time a year earlier when they may have been before the reviewer. Nor is there anything to show that the reviewer followed the same course in accessing any such material as that done by Mr Bangs (for example, at [4] of his second affidavit, Mr Bangs says he found a particular location by “using the zoom feature”).
In this regard, I agree with the Minister that the major part of Mr Bangs’ second affidavit and most of the annexures are ineffective for the purpose of establishing irrationality or illogicality on the part of the reviewer. Leave is not granted to admit this material into evidence, except for annexure “ECB6” (for annexure “ECB7” see below).
Annexure “ECB7” to the second affidavit of Mr Bangs also presented a problem. It was accessed as a result of Mr Bangs’ own search. That is, his evidence is that he attempted, on 1 February 2013, to access the web address set out at footnote 3 (at CB 272). He was unable to proceed (“This resulted in a screen displaying ‘Server Error’” – [8] of Mr Bangs’ second affidavit). He then conducted a separate “Google search” which ultimately resulted in the document at annexure “ECB7” ([8] of Mr Bangs’ second affidavit). This places the annexure in the category of the maps (other than that at annexure “ECB6”).
However, the Minister concedes that, given the date on the face of the document (30 July 2002), “[i]t may be inferred that it is the material that was before the Reviewer” (at [25] of the Minister’s supplementary written submissions, noting what is set out above regarding the reference there to “ECB6” plainly being a mistaken reference to “ECB7”). Therefore, annexure “ECB7” should be admitted on the same basis as annexure “ECB6”.
It is not clear why, in his further written submissions, the applicant presses his application for leave to admit the third affidavit of Mr Bangs. Particularly when it was clear from the hearing before that Court that it was not relevant to the grounds as pleaded, or a fact in issue. What is set out at [176] – [199] above provides some explanation. However, given what is set out there it is not a satisfactory explanation. In any event, and in essence, that affidavit asserts interpretation omissions, or errors, at the interview before the reviewer. This is said to “supplement” the transcript provided as an annexure to Mr Bangs’ affidavit of 21 November 2012 which has been admitted into evidence.
The grounds of the application before the Court, as set out above, are concerned with the question of illogicality or irrationality in the reviewer’s decision. The applicant says that this affidavit is relevant to the reviewer’s “credibility findings”.
The applicant’s attack as pleaded and, for the most part (noting my consideration above), pressed before the Court was confined to that part of the reviewer’s analysis dealing with the population and distance matters. [There is nothing which Mr Bangs’ third affidavit seeks to subsequently supplement that it is relevant to that attack.] In any event, the complete answer to the applicant is provided with reference to [176] – [199] above. Leave is not granted in relation to the third affidavit of Mr Bangs. This evidence is not admitted.
Conclusion
The grounds of the application to the Court, as amended, and even as variously argued, fail to established jurisdictional error. In these circumstances it is appropriate that the application be dismissed. I will make an order accordingly.
Postscript
I have referred above to the elements that have contributed to the protraction of these proceedings. However, the reviewer in her presentation of her research has, in part, also contributed to this. The reviewer accessed various websites. Although she included footnote references, it would have reduced the length of these proceedings if she had taken a “screen shot” of the map, or maps, that she actually viewed. That is, to fix her observations of relevant information as to the relevant time. After all, if her statement of reasons was meant to inform the Minister as to her recommendation the absence of the actual maps from her analysis would have left the Minister in the same state of difficulty as the Court, and which has been set out above.
I certify that the preceding two hundred and sixty-six (266) paragraphs are a true copy of the reasons for judgment of Judge Nicholls.
Date: 5 June 2013
[paragraph 55]; DFAT Situation in Ghazni Province – views of a Member of Parliament 15 July 2010 CX246263 [paragraph 57]; DFAT AFG10736: The Hazara, 28 September, 2010, CX250180 [paragraph 56] ; Foreign Policy A New, New Taliban Front Ruttig, T 21 June 2010 [paragraph 60]
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