FEDERAL COURT OF AUSTRALIA

AXD17 v Minister for Immigration and Border Protection [2018] FCA 161

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection (class XA) visa.

2    The appellant is a 31 year old male citizen of Afghanistan. He arrived in Australia on 4 July 2011 on a provisional partner visa granted on 29 May 2011. After the appellant’s relationship ceased he applied for a permanent partner visa on the basis that he was a victim of family violence, however this application was refused.

3    The appellant’s bridging visa was cancelled in November 2014 and he was taken into immigration detention after he was charged with sexual offences.

4    He then applied for a protection (class XA) visa on 18 May 2016.

5    In his application, the appellant claimed he feared returning to Afghanistan because he had rejected Islam and converted to Christianity. He claimed that, because of this, he would be charged with apostasy and punished.

6    The appellant stated he had suffered sexual violence in 2011 while he was in Afghanistan because he was suspected of having Christian beliefs. He claimed that after this incident he completely rejected Islam and subsequently started attending Christian bible classes in immigration detention in May 2016.

7    The delegate refused the appellant’s application for a protection visa on 12 October 2016.

8    On 3 February 2017 the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

9    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 9 October 2017 the primary judge dismissed the appellant’s application, having found the Tribunal did not commit any jurisdictional error in its decision-making. See AXD17 v Minister for Immigration & Anor [2017] FCCA 2081.

10    The appellant now appeals from the Federal Circuit Court’s decision.

DELEGATE’S DECISION

11    The appellant attended interviews with the Department of Immigration and Border Protection via video link on 26 July 2016 and 29 July 2016 as part of his application for protection.

12    It was put to the appellant that he had not genuinely converted to Christianity. The delegate had concerns the appellant had only converted to make a claim for protection. The appellant denied this was the case.

13    The delegate accepted the appellant had some understanding of Christianity, had investigated the religion, was baptised while in detention and had produced letters of support from Christian ministers. However, the delegate did not give these factors much weight.

14    Further, the delegate stated that there was no evidence before the Department that Afghan citizens who attended church in Australia were at risk of harm in Afghanistan upon return. Information from immigration detention which indicated that the appellant requested Muslim prayer items and a halal diet also led the delegate to conclude that the appellant had not genuinely converted.

15    The delegate considered the appellant’s failure to remember the names of the churches he had attended in Australia or the names of priests who were at these churches. The appellant’s migration history, in that he applied for protection only after the refusal of his partner visa application, also added to the delegate’s conclusion that the appellant’s conversion from Islam to Christianity was only in order to strengthen his protection claim.

16    No weight was given to medical reports the appellant produced regarding his rape claim because the delegate was not convinced they were genuine and concluded that the alleged attack was fabricated to enhance the appellant’s claims for protection.

TRIBUNAL’S DECISION

17    On 18 October 2016 the appellant applied to the Tribunal for review of the delegate’s decision. He attended a hearing as part of this review on 15 December 2016.

18    The appellant maintained his claim that he feared returning to Afghanistan based on his conversion to Christianity. The appellant provided written submissions and evidence on apostasy in Afghanistan.

19    The appellant also provided a letter of support from a minister of the Uniting Church which stated that the minister did not doubt the appellant’s sincere faith. This minister was called during the hearing and gave oral evidence that she knew the appellant through his attendance at a Christian group run at the detention centre.

20    However, the Tribunal found that the minister knew nothing of the appellant’s past and did not know that the appellant was charged and convicted of criminal offences. The Tribunal gave little weight to the minister’s opinion that the appellant’s conversion was sincere because it found she did not know the appellant well.

21    The appellant was sent an invitation to comment letter on 6 January 2017 regarding adverse information to which he responded.

22    The Tribunal did not accept that the appellant was a genuine convert or that the appellant was targeted prior to leaving Afghanistan for being perceived as rejecting Islam, and affirmed the delegate’s decision.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

23    The appellant filed an application in the Federal Circuit Court for judicial review of the Tribunal’s decision on 3 March 2017. In an affidavit sworn on 11 August 2017 the appellant sought leave to amend his application for judicial review which was granted by the primary judge at the hearing on 30 August 2017. The appellant raised five grounds in his amended application:

Ground 1:     There was not a sufficient logical or evidentiary basis for the Tribunal to find the applicant was not a ‘genuine’ Christian after finding the applicant was baptised, attended Christian classes and church services

1.    There was not a sufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a ‘genuine’ Christian at [15], [18], [19], [23], [24] and [26] of the decision record with regard to the refugee criterion and at [29] of the decision record with regard to the complimentary criterion, in light of evidence submitted to the Tribunal by the applicant particularised below from (1)(a)−(b) and after the Tribunal accepted the applicant was baptized, attended Christian classes and church services at [26] and [29] of the decision record.

Particulars

a)     From [101−11] of the decision record, the applicant is a citizen of the Islamic Republic of Afghanistan (Afghanistan). The applicant claims protection in the Commonwealth of Australia (Australia) based on his religious conversion from Shia Islam to Christianity, which is prohibited in Afghanistan and where apostasy carries the death sentence.

b)     The applicant provided to the Tribunal the following in support of his religious, conversion:

i.     application for a protection visa − Form 866C, page 71 of the Court Book;

ii.     Letter from Prison Fellowship Australia, page 122 of the Court Book;

iii.    Letter from St Matthew’s Anglican Parish of Guildford, page 123 of the Court Book;

iv.    Email from YHIDC to DIBP outlining religious events attended by applicant, page 132−137 of the Court Book;

v.     Certified copy of the applicant’s baptism certificate, page 142−143 of the Court Book;

vi.     Bundle of photographs and documents of the applicant’s baptism, page 145−159 of the Court Book;

vii.     Letter from Rev. Corina van Oostende, Minister of the Word in the Uniting Church, Northam, page 225−226 of the Court Book;

c)     There was therefore an insufficient logical or evidentiary basis:

i.     for the Tribunal to find the applicant was not a ‘genuine Christian convert’ at [15] of the decision record.

ii.     for the Tribunal to give ‘limited weight to Rev van Oostende’s opinion of the applicant’s sincerity in converting, because it finds she does not know the applicant well’ at [17] of the decision record.

iii.     for the Tribunal to give ‘little weight to her opinion that the applicant is a genuine Christian’ at [18] of the decision record.

iv.     for the Tribunal to give the ‘letters weight only as evidence the applicant attended Christian groups in 2016, and gives little weight to the opinions of the authors that the applicant is genuinely Christian’ at [19] of the decision record.

v.     for the Tribunal to find that ‘[g]iven his lack of knowledge of any details associated with the churches, the Tribunal finds that if he did go into any churches, it was merely as a quiet place to sit, rather than evidence of any real engagement with Christianity’ at [23] of the decision record.

vi.     for the Tribunal to find that the applicant has not ‘rejected Islam, given his behaviour until recently in detention in identifying himself as Muslim’ at [24] of the decision record.

vii.     for the Tribunal to give the ‘lack of past Christian related activity weight in reaching the conclusion that his engagement with Christianity began only in preparation for applying for a Protection visa’ at [25] of the decision record.

viii.     for the Tribunal to find that the ‘applicant has attended Christian classes in detention, been baptised, and professed to be Christian, otherwise than for the purpose of strengthening his claim to fear persecution as a Christian convert’ with regard to the refugee criterion at [26] of the decision record.

ix.     for the Tribunal to find that the applicant has not ‘genuinely converted to Christianity’ with regard to the complementary criterion at [29] of the decision record.

Ground 2:    Misapplication of law or failure to ask the correct question regarding the appellants’ conversion from Islam to Christianity under section 5J(6) of the Migration Act 1958 (Cth) and the refugee criterion

[Particulars omitted.]

Ground 3:     Misapplication of law or failure to ask the correct question regarding the appellants’ conversion from Islam to Christianity under the complementary criterion

[Particulars omitted.]

Ground 4:     Irrelevant considerations − conflation of the applicant’s criminal convictions with his conversion to Christianity

[Particulars omitted.]

Ground 5:     Relevant considerations - whether the applicant faces a real risk of harm due to the criminal convictions

[Particulars omitted.]

24    The primary judge dismissed the judicial review application, finding none of the grounds could be sustained.

25    In relation to the first ground, the primary judge stated that in order for the appellant to succeed on a no evidence challenge it must be shown that there was “not a skerrick of evidence” available to justify the finding, citing Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [575]. The primary judge cited a number of authorities in support of this principle. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]; [2010] HCA 16.

26    The primary judge concluded that the Tribunal undertook “an evaluative exercise, having regard to all the facts and circumstances that were before it” in considering whether the appellant was a genuine Christian. His Honour found that a suggestion that the Tribunal’s conclusion regarding the appellant’s Christianity lacked a logical or evidentiary basis was not founded.

27    For completeness the primary judge also stated that it could not be suggested that the Tribunal improperly set itself as the arbiter of doctrine with respect to religion as discussed in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]-[30].

28    In relation to the second ground, the primary judge held that the Tribunal was not bound to accept the contention that the appellant’s conduct was genuine and was entitled to have regard to all the circumstances in order to make an assessment. In this light the primary judge found there was not a lack of evidentiary or logical basis to the Tribunal’s conclusion. His Honour considered that, through this ground, the appellant was instead expressing dissatisfaction with the merits of the Tribunal’s finding.

29    In rejecting the third ground his Honour held that the factual basis for the appellant’s fear of harm had fallen away because the Tribunal did not accept the appellant would practice Christianity in Afghanistan or that anyone would be aware of his activities in Australia. The primary judge noted that the overlap in the Tribunal’s findings in respect of s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) was understandable and to be expected due to the identical factual basis for each claim.

30    His Honour found that the appellant’s contention in the fourth ground was based on a misreading of the Tribunal’s reasons. The primary judge explained:

The Tribunal did not conclude that the applicant’s convictions were relevant to an assessment of his credibility. Rather, in concluding that little weight should be placed on the letters of support that were provided, the Tribunal noted that it would be expected that persons who purport to know the applicant well would also be aware of his criminal convictions.

31    The primary judge considered there were two issues raised in this regard: firstly, whether the Tribunal’s use of the criminal convictions gave rise to an apprehension of bias which his Honour found it did not, and secondly, whether the Tribunal was permitted to use the information as it did. His Honour rejected the contention that the Tribunal was permitted to have regard to the appellant’s criminal convictions only insofar as they assisted his claim.

32    In reaching his finding regarding ground four, the primary judge stated that AMA16 v Minister for Immigration & Ors [2017] FCCA 303 had no bearing on the issues in this case. His Honour held that the principles in AMA16 did not stand for the proposition that a reasonable apprehension of bias arose wherever a decision-maker takes into account information relating to criminal convictions, but rather that the case illustrated the “highly fact and context-specific nature of apprehended bias findings”. He concluded that, unlike in AMA16, the Tribunal was not in receipt of “extraneous” information because the appellant’s criminal charges were required to be put before the Tribunal, and the appellant was on notice that the Tribunal was aware of his criminal convictions.

33    Further, the primary judge held that because the rule in Browne v Dunn (1893) 6 R 67 did not apply to proceedings before the Tribunal, it was permitted to place little weight on the Uniting Church minister’s evidence without first putting to her the appellant’s criminal convictions.

34    Finally, his Honour held that the fifth ground of review failed as there was nothing in the materials to suggest the appellant claimed he feared harm in Afghanistan due to his criminal convictions. His Honour stated that it was well established that a decision-maker is only required to consider claims sufficiently raised on the material before the decision-maker and a failure to consider a claim not expressly advanced was not to be made lightly, citing NABE v Minister for Immigration (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [68]; NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15].

Appeal to THIS COURT

35    The appellant now appeals from the primary judge’s decision by a notice of appeal filed on 27 October 2017 and supported by his affidavit. The notice contains the same first four grounds of appeal relied upon in the Federal Circuit Court as outlined above at [23].

36    On 30 January 2018, the appellant obtained legal representation. I made orders by consent on 2 February 2018 allowing the appellant to file an amended notice of appeal and supporting affidavit.

37    To this effect, the appellant’s lawyer filed an amended notice of appeal on 5 February 2018 abandoning the four grounds of appeal and advancing, in their place, new grounds 5, 6 and 7, as follows:

Ground 5: The Federal Circuit Court of Australia committed a jurisdictional error in finding that there was a sufficiently logical basis for the Administrative Appeals Tribunal (‘Tribunal’) to find that the appellant was not a genuine Christian.

Particulars

a.    At [22] (CB 284), Judge Driver summarised the individual findings that led the Tribunal to reject the appellant’s claim to be a Christian. This included that:

The Tribunal placed little weight on letters of support provided by various persons (including the Uniting Church minister referred to at [18] and the individuals identified in [19] of its reasons) given that those persons did not appear to know the applicant well and were only able to verify that he had attended Christian groups in a detention centre. That those persons did not know the applicant well was exemplified by their lack of knowledge that the applicant had been convicted of various offences.

b.    The Tribunal did not appear to question the credibility of any of the persons referred to at [18] and [19] of its reasons (CB 262).

c.    The Tribunal illogically dealt with the evidence of the various persons by giving it little weight based solely on the Tribunal’s finding that those person’s lacked knowledge of the Appellant’s background.

d.    The Tribunal’s finding that the appellant was not a genuine Christian was thereby undermined and affected by jurisdictional error.

Ground 6: The Tribunal failed to properly take into account DFAT country information in accordance with Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth).

Particulars

a.    The Appellant claimed to be at real risk of suffering significant harm throughout Afghanistan and thus to be a person to whom Australia owes complementary protection obligations (CB 264, [30]).

b.    The Tribunal stated that it had had ‘regard to country information from DFAT, referred to above, on the treatment of apostates in Afghanistan’ and then went on to find that, given its earlier finding that the appellant was not a genuine Christian and the lack of anything else in his profile that would make him a target, that the appellant was not at a real risk of significant harm (CB 264-5 [29]-[30]).

c.    The Tribunal found ‘that the risk of harm from any insecurity or generalised violence in Afghanistan is a risk faced by the population generally and not by the applicant personally’ (CB 265 [30]). In making this finding the Tribunal neglected to refer to any country information about the risk of harm from insecurity or generalised violence in Afghanistan.

d.    The DFAT country information report would have been directly relevant to any finding about the levels of insecurity or generalised violence in Afghanistan, ergo an inference can be drawn that the Tribunal did not properly take it into account and thus fell into jurisdictional error.

Ground 7: Misapplication of the test for complementary protection

Particulars

a.    The Tribunal fell into jurisdictional error by misconstruing or misapplying the test for complementary protection and or failing to ask itself the correct legal question.

b.    The Appellant claimed to be at real risk of suffering significant harm throughout Afghanistan and thus to be a person to whom Australia owes complementary protection obligations (CB 264, [30]).

c.    The Tribunal stated that it ‘under s.36(2B)(c) of the Act there is taken not to be a real risk that a person will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally’ (CB 264 [30]).

d.    The Tribunal then found ‘that the risk of harm from any insecurity or generalised violence in Afghanistan is a risk faced by the population generally and not by the applicant personally’ (CB 265 [30]). In making this finding the Tribunal did not ask itself whether the Appellant was owed complementary protection because the levels of insecurity or generalised violence in Afghanistan also put him at personal risk so as to negate exclusion under s.36(2B)(c) of the Act (see BOS 15 v Minister for Immigration [2017] FCCA 745 at [29]-[30]).

e.    By not making an assessment of the risk of insecurity or generalised violence in Afghanistan, the Tribunal committed a jurisdictional error in relation to the Appellant’s complementary protection claim.

38    The appellant’s lawyer also filed his affidavit made 5 February 2018, annexing a Department of Foreign Affairs and Trade report (DFAT report) regarding Afghanistan dated 18 September 2015, which report the appellant says was before the Tribunal and referred to in its decision record.

39    The appellant, by his lawyer, also filed written submissions. In regard to ground 5 – the substance of which he says was argued below – the appellant refers to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649-650; [2010] HCA 16 and contends at [12]-[14] of his written submissions:

12.     The Tribunal appears to have considered that knowledge of the Appellant’s background was required in order for the individuals referred to at [18] and [19] of its reasons (the witnesses) to make a judgment on the credibility of the Appellant’s claim to be a Christian. The Tribunal did not appear to have an issue with the credibility of any of the witnesses.

13.     The witnesses had months in which to assess whether the Appellant’s claim to be a Christian was credible and they did this by the means available to them, by their perception of the Appellant’s character and disposition.

14.     While knowledge of the Appellant’s background is relevant to an assessment of whether his claim to be a Christian is credible, it is not determinative. To treat it as such is illogical.

40    The appellant accepts that leave of the Court is required, however, to argue grounds 6 and 7 as they were not argued before the Federal Circuit Court. In this light the appellant submits, consistent with authority: (O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33; H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]; [2001] FCA 1833) and because the grounds have merit and there is no real prejudice to the respondent in permitting them to be agitated (Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213, [31] (Gilmour and Mortimer JJ)) that it is in the interests of justice to allow them to be argued.

41    In relation to ground 6 the appellant refers to Ministerial Direction 56 which states:

Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

42    The appellant then submits in [21]-[26] of his written submissions:

21.     The Tribunal stated that it had had ‘regard to country information from DFAT… on the treatment of apostates in Afghanistan’ and then went on to find that, given its earlier finding that the appellant was not a genuine Christian and the lack of anything else in his profile that would make him a target, that the appellant was not at a real risk of significant harm (CB 264-5 [29]-[30]).

22.    The Tribunal found ‘that the risk of harm from any insecurity or generalised violence in Afghanistan is a risk faced by the population generally and not by the applicant personally’ (CB 265 [30]). In making this finding the Tribunal neglected to refer to any country information about the risk of harm from insecurity or generalised violence in Afghanistan.

23.     An inference should be drawn from the Tribunal’s silence on the matter that it did not in fact consider any country information about the risk of harm from insecurity or generalised violence in Afghanistan: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [69].

24.     The Tribunal was not in a position to determine whether the risk of harm from any insecurity or generalised violence in Afghanistan also put the Appellant at a personal risk; thereby negating the exclusion under s 36(2B)(c) of the Migration Act (see BOS 15 v Minister for Immigration [2017] FCCA 745 at [29]-[30]).

25.     The DFAT country information report contained information directly relevant to the levels of insecurity or generalised violence in Afghanistan and, consequently the Appellant’s complementary protection claims (see affidavit of Hamish William Glenister affirmed on 5 February 2018, pg 12-13, 23-24).

26.     An inference ought to be drawn that the Tribunal did not properly take the DFAT report into account and thus fell into jurisdictional error.

43    In relation to ground 7 the appellant submits at [27]-[32] of his written submissions:

27.     The Tribunal fell into jurisdictional error by misconstruing or misapplying the test for complementary protection and or failing to ask itself the correct legal question.

28.     The Appellant claimed to be at real risk of suffering significant harm throughout Afghanistan and thus to be a person to whom Australia owes complementary protection obligations on the basis that Afghanistan is not a safe country (CB 264, [30]).

29.     The Tribunal stated that it ‘under s.36(2B)(c) of the Act there is taken not to be a real risk that a person will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally’ (CB 264 [30]).

30.     In SZSFF v Minister for Immigration and Border Protection & Anor [2013] FCCA 1884, Judge Lloyd-Jones stated at [33]-[34] in relation to s 36(2B)(c) of the Migration Act 1958:

Nevertheless, the Minister accepts that s.36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s.36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstances.

The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.

31.    The Tribunal found ‘that the risk of harm from any insecurity or generalised violence in Afghanistan is a risk faced by the population generally and not by the applicant personally’ (CB 265 [30]). In making this finding the Tribunal did not make any finding in relation to the level of risk to the Appellant due to the prevalence of serious human rights violations in Afghanistan.

32.    By not making an assessment of the risk of insecurity or generalised violence in Afghanistan, the Tribunal committed a jurisdictional error in relation to the Appellant’s complementary protection claim by misapplying or misconstruing the relevant provisions or otherwise failing to ask itself the correct question.

44    In oral submissions, the appellant developed these written submissions, acknowledging that grounds 6 and 7 overlap.

45    Notwithstanding the Minister’s objection, I granted leave at the hearing for grounds 6 and 7 to be argued, raising, as they do, important issues having some apparent merit in circumstances where no real prejudice to the Minister was disclosed.

46    The Minister also filed written submissions and an accompanying chronology. Following the grant of leave in respect of grounds 6 and 7, the Minister was given leave to also tender Ministerial Direction No 56 as an exhibit. Ministerial Direction No 56 states:

Name of Direction

This Direction is Direction no. 56 - Consideration of Protection Visa applications. It may be cited as Direction No.56

Commencement

This Direction commences at the beginning of the day following the day on which it is made.

Objectives

The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa.

It is undesirable for first instance and review decision makers to take inconsistent approaches to the decision making task where there is no rational basis for these inconsistencies. Accordingly, it is desirable that subject to the Migration Act and Regulations and other applicable laws, decision makers take as a starting point a common set of guidelines and country information.

Clauses

1. This Direction applies to a decision-maker performing functions or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.

2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.

‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’

‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’

3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

47    The Minister accepts that the substance of the fifth ground of appeal was argued on behalf of the appellant before the primary judge.

48    The Minister contends that ground 5 must fail because there was nothing illogical in the Tribunal’s findings and the appellant has not shown that the primary judge applied the wrong “illogical or unreasonable” analysis. To this effect the Minister submits as follows at [13]-[14] of his written submissions:

13.     The test for illogicality or irrationality is whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on the evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. The correct approach is to ask whether it was open to the decision-maker to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. See Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [60] - [61].

14.     For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error. See Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [62].

49    With regard to ground 6, the Minister argues that jurisdictional error arising from a breach of s 499 of the Act by failing to consider Ministerial Direction No 56 will only arise where the decision-maker must take into account that assessment, “where relevant” in making their decision and did not do so.

50    The Minister contends that the appellant merely mentioning that Afghanistan is not a safe country did not give rise to a claim, citing NABE (No 2) at [60]. Therefore, the Minister says, the Tribunal was not obliged to consider the DFAT report as it bore no relevance in the circumstances. Further, the Minister submits at [24]-[28] of his written submissions:

24.     The Appellant has the burden of establishing the Tribunal failed to take account of relevant country information. See AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 (AJW15) at [47]. The Appellant must identify why the Court should infer, on the balance of probabilities and reading the Tribunal’s reasons fairly, that relevant country information was not taken into account. See AJW15 at [47]. The choice and interpretation of country information is a factual matter for the AAT. See AJW15 at [51].

25.     Regardless, the Minister submits that to the extent that the Tribunal must have had regard to relevant country information, the Tribunal did in fact consider relevant country information in compliance with MD 56.

26.     The crux of the Appellant’s claims for protection was based on a fear of return to Afghanistan on the basis of religious persecution (see T2 AB 85 - 87, 179 - 180, 187 - 188, 231 - 238 & 245 - 249).

27.     In dealing with this claim in the context of section 36(2)(a), the Tribunal expressly considered country information in compliance with MD 56. See T2 AB 179 (paras A – G), 183 (fn 2), 184 (fn 3), 186 (fn 4 & 5) & 187 (fn 6). The Tribunal reviewed the Delegate’s decision. See T2 AB 259 [1] - [2]. (2) The Tribunal’s reasons also refer to MD 65 and country information. See T2 AB 259 [8] - 260 [8], 261 [14] & 264 [29]. Ultimately, the Appellant’s claims to fear harm upon return to Afghanistan by reason of his Christianity were considered and rejected by the Tribunal. See T2 AB 263 [23] - 265 [30].

28.     Necessarily, it follows that in finding that there was not anything further in the Appellant’s profile that means he has a real risk of being targeted personally for significant harm, the Tribunal has sufficiently turned its mind to its references to the relevant country information in making its finding under section 36(2)(aa) in compliance with MD 56, despite the lack of express references to country information.

51    In relation to ground 7, the Minister submits at [30]-[33] of his written submissions, that this ground must also fail for the following reasons:

30.     Section 36(2B)(c) Migration Act provides that an applicant for a protection visa will not face a real risk of significant harm if the decision maker is satisfied that the risk is “one faced by the population of the country generally and is not faced by the [applicant] personally”.

31.    In the Appellant’s case, and with reference to relevant country information, the Tribunal found that there was not a real risk that the Appellant would suffer significant harm in Afghanistan. See T2 AB 251 [31].

32.     In the present case, there was an implied consideration by the Tribunal of the Appellant’s personal circumstances with respect to the Appellant’s claim that he would face harm upon return to Afghanistan by reason of his Christian conversion. In making a finding unfavourable to the Appellant with respect to that claim, the Tribunal thereby necessarily found that there was no further aspect of the Appellant’s circumstances which would render the Appellant subject to significant harm upon return to Afghanistan as it pertains to complementary protection under sections 36(2)(aa) and 36(2B)(c).

33.     To this end, the Tribunal’s interpretation of section 36(2B)(c) in its reasoning is consistent with both SZSFF v Minister for Immigration [2013] FCCA 1884 and SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245. No error is disclosed in the Tribunal’s reasoning.

CONSIDERATION

52    Ground 5, as the parties contend and I accept, reflects ground 1 of the judicial review application before the primary judge now under appeal. The question whether a jurisdictional error has been committed because of illogicality or, as expressed in ground 5, because it did not have a “sufficiently logical basis” reflects a number of decisions of the High Court concerning the nature of jurisdictional error by administrative decision-makers. Ultimately, these decisions may be seen to be organised, generally speaking, under the rubric of legal unreasonableness. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, the plurality (Hayne, Kiefel and Bell JJ), at [76], said that the same reasoning set out in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, to the effect that an appellate court may infer that in some way there has been a failure properly to exercise a judicial discretion if upon the facts the result is unreasonable or plainly unjust, might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Their Honours added that even where some reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Their Honours observed:

Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

53    Another way of asking whether the exercise of a statutory discretion lacks an evident and intelligible justification is to ask whether it is illogical or irrational.

54    In Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172, (special leave to appeal refused 15 February 2018) the Full Court (Gilmour, Logan and Mortimer JJ) recently observed, at [34]-[36]:

34.    To discern irrationality or illogicality in the Tribunal’s reasoning, more must be shown than simply the fact that the decision is one upon which reasonable minds may differ: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]–[85] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ. As Crennan and Bell JJ stated in SZMDS at [135]:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

35.    Moreover, illogicality must be shown to have affected the decision in question: SZOOR at [85].

36.    As to unreasonableness, the applicable standard was summarised by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] as follows:

In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls ‘an area of decisional freedom’: it has the character of a choice that is arbitrary, capricious or without ‘common sense’. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking ‘an evident and intelligible justification’. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225 ; [2013] HCA 18 at [105]):

It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason’: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].

55    Another, more recent Full Court has also endorsed both the relevance in present circumstances of the decision of the High Court in Li, as well as the decisions of the Full Court in Gupta and in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1. See BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10 at [20] and [21].

56    In this case, the reasoning of the Tribunal by which it decided not to give weight to the evidence of the Uniting Church minister whose services the appellant had been attending, is quite explicable. The decision was arrived at not because the Tribunal considered that opinion (and similar opinions from other Christian ministers) was not honestly held, but because the Tribunal considered, in light of other evidence pre-dating the appellant’s involvement with those ministers, that it could not be satisfied that at material times the appellant truly was a convert to Christianity.

57    By reference to the Minister’s chronology, it can be readily understood how the Tribunal rationally and not illogically, and with an evident and intelligible justification, came to its decision.

58    In the decision record of the Tribunal, at [18], the Tribunal carefully considered Reverend van Oostende’s opinion of the appellant’s commitment, but noted it was not based on personal counselling with the appellant about his reasons for wanting to be Christian and what it means to live as a Christian. The Tribunal, not unreasonably (in the Li sense) in my view, observed that there had been no disclosure or discussion about the appellant’s recent past.

59    The Tribunal formed the view that the minister did not know the appellant “well enough to give an informed opinion on his motivations and sincerity in claiming to be Christian”. This was the key point. It was for that reason that the Tribunal gave little weight to her opinion that the appellant was a genuine Christian.

60    But the Tribunal’s analysis did not end there. It also considered other evidence concerning his claim about working for the Americans, which it did not accept.

61    It also noted adverse information about the appellant having identified as Muslim and requesting meals and items associated with this while in immigration detention.

62    It also did not accept that the appellant had gone to churches in Australia at earlier relevant times, but if he did it was merely to sit in a quiet place “rather than evidence of any real engagement with Christianity”.

63    The Tribunal ultimately considered, at [25], that apart from his alleged visiting of churches he did nothing to engage with Christianity in the period 2011 to 2014.

64    The Tribunal considered the appellant appears to have done nothing to reach out to Christian groups and learn about Christianity until he was detained in the Yongah Hill Detention Centre.

65    The Tribunal considered, again not unreasonably (in the Li sense), in my view, that the appellant’s lack of past Christian related activity had weight in reaching the conclusion that his engagement with Christianity began only in preparation for applying for a protection visa. The chronology addressed on behalf of the Minister and the information before the Tribunal that underpin it, plainly support this view and show it not to be without a proper logical or evident justification.

66    Ground 5 must therefore fail.

67    Ground 6 and ground 7, as noted above, overlap. Ground 6 is that the Tribunal failed to properly take into account DFAT country information in accordance with Ministerial Direction No 56. The terms of the Direction are set out above at [46]. The essence of the ground is that the decision-maker must take into account, but failed to do so, the country information assessment in making a decision “where relevant” – a point emphasised on behalf of the Minister.

68    There is no doubt in this case that the DFAT report, referred to at [38] above, regarding Afghanistan, dated 18 September 2015, was before the Tribunal. It was not expressly referred to by it in relation to the proposition, stated at [30] of the Tribunal’s decision record, “that Afghanistan is not a safe country”. I will return to whether or not this was a “claim” or something less than a claim made by the appellant.

69    It is not argued that the appellant’s profile is such that he individually or as a member of some identifiable social group was at risk of harm – he accepting at this point that the findings of the Tribunal against him being targeted as a Christian undercut this argument – but that the general state of insecurity in Afghanistan places anybody living or returning to Afghanistan at risk of relevant harm. By reference to BOS15 v Minister for Immigration [2017] FCCA 745, referred to in [24] of the appellant’s submissions which are reproduced at [42] above and also by reference to what was said in SZSFF v Minister for Immigration & Anor [2013] FCCA 1884 and reproduced at [30] of the appellant’s written submissions and reproduced at [43] above, the appellant submits, for example, by reference to a country such as Syria at present, that where serious human rights violations in a particular country are so widespread and so severe that almost anyone would potentially be affected by them, an assessment of the level of the risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171 (entered into force 23 March 1976) and/or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Opened for signature 10 December 1984. 1465 UNTS 85 (entered into force 26 June 1987).

70    As such, it is said, s 36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason for the provision to apply. What is ultimately required, it is contended, is an assessment of the level of risk to the individual and the prevalence of serious human rights violations. The appellant submits it is this claim and this assessment which was not done and which should have been done by reference to the DFAT report.

71    Accepting generally that there may be circumstances, in which for Australia to return a person to their country of origin may be to expose them to a sufficiently real and personal risk of harm without them being targeted as an individual or member of a relevant group, and thereby result in s 36(2B)(c) not having relevant application, was any such claim made in this case? In my view, it is, in the result, very difficult to see that such a claim was made. The decision in NABE (No 2) makes it plain that it is not only an express claim that should be considered by the Tribunal, but also ones which “clearly emerge” from the way an applicant has put his or her case. All that the Court knows – and counsel for the appellant was unable to refer to any other materials, such as transcript from the hearing – is what is contained in [30] of the Tribunal’s decision record. It is appropriate to set out the whole of [30] here:

The applicant mentioned at the hearing, although he did not formulate this as a claim, that Afghanistan is not a safe country. Under s.36(2B)(c) of the Act there is taken not to be a real risk that a person will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. Having rejected his claims to fear harm for his conversion to Christianity or perceived rejection of Islam, the Tribunal does not accept there is anything in the applicant’s profile that means he has a real risk of being targeted personally for significant harm. The Tribunal finds the risk of harm from any insecurity or generalised violence in Afghanistan is a risk faced by the population generally and not by the applicant personally.

72    In my view, even though the Tribunal has engaged in some analysis of the question of harm if the appellant were to be returned to Afghanistan, following the first sentence in [30], I do not consider that the “claim”, as now formulated on behalf of the appellant, clearly emerged at the interview or hearing in the Tribunal. First, it is plain that the Tribunal did not see the question of harm in those terms to have been formulated as a “claim”.

73    The Tribunal has carefully used the verb “mentioned”. The question of Afghanistan not being a safe country appears to have been something mentioned in passing by the appellant in giving evidence to the Tribunal. At that level of generality, it was not for the Tribunal to perceive what was mentioned either as a formal “claim” of harm or, in any event, as an assertion that the situation in Afghanistan was so dire that even though he may not be a member of a group or individually a person likely to be targeted for his beliefs or religious associations, he was nonetheless at risk of significant harm due to the general state of affairs in Afghanistan. If that had been the appellant’s case in seeking a protection visa, one would expect it to have been mentioned at the front and centre of the claims he in fact made formally or in the course of his oral evidence in the Tribunal. Instead, his substantive claim was put on the basis that he would be targeted because he would be seen as an apostate in a predominantly Islamic country.

74    On that basis, I do not consider that ground 6 can succeed. There was no obligation to consider the DFAT report in such a context because, in those circumstances, the report’s content was not relevant to any claim made by or on behalf of the appellant in the Tribunal.

75    For similar reasons, ground 7, which asserts the misapplication of the test of complementary protection, must also fail. Because the appellant did not claim to be at real risk of suffering significant harm throughout Afghanistan such as to negate exclusion under s 36(2B)(c), the findings of the Tribunal that the appellant did not face any real risk of significant harm on the basis that the risk he did face was one faced by the population of the country generally and not by him personally, or as a member of a targeted group, was not misconceived or made in jurisdictional error.

76    For these reasons, each of grounds 6 and 7 must fail.

77    I should add that, in any event, it is difficult to see how the paragraphs of the DFAT report referred to in submissions by the appellant support the wider claim pressed by the appellant in argument.

CONCLUSIONS AND ORDERS

78    For these reasons, I would make the following orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs, to be assessed if not agreed.

Associate:

Dated:    23 February 2018