FEDERAL COURT OF AUSTRALIA

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal in a sum to be assessed in accordance with the court’s Costs Practice Note (GPN-COSTS) if not agreed.

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

REASONS FOR JUDGMENT

MURPHY J:

Introduction

1    The appellant, a citizen of Pakistan, appeals from a judgment of the Federal Circuit Court, which dismissed his application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA). The IAA had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (Minister) to refuse to grant the appellant a Temporary Protection (Class XD) (subclass 785) visa (the visa).

2    By an amended notice of appeal filed on 11 October 2019 the appellant alleges that the primary judge erred:

(1)    by failing to find that the IAA fell into jurisdictional error by:

(i)    engaging in irrational or illogical reasoning in making findings as to the appellant’s credibility; and

(ii)    failing to undertake the appropriate predictive exercise in deciding whether there is a real chance the appellant will suffer serious harm if returned to Pakistan; and

(2)    by failing to provide adequate reasons.

3    For the reasons that follow the appeal should be upheld on the ground of irrational or illogical reasoning, and the other grounds should be dismissed. It is therefore appropriate to set aside the orders of the primary judge and in lieu thereof order that the decision of the IAA be set aside and the appellant’s application for a visa be remitted to the IAA to be determined according to law.

The facts and procedural history

4    The appellant is of Pashtun ethnicity and Shia Muslim faith. He lived in Agra, Parachinar, Kurram Agency, in the Federal Administered Tribunal Areas (FATA) of Pakistan until coming to Australia. He arrived at Christmas Island by boat in July 2013, without a visa, and was therefore an “unlawful maritime arrival” as defined in the Migration Act 1958 (Cth) (the Act) and an unlawful non-citizen. He was immediately taken into immigration detention, and barred by s 46A(1) of the Act from making a valid application for a protection visa.

5    The appellant was interviewed by an officer of the Department of Immigration and Citizenship (Department) on 30 July 2013 (the arrival interview). Differently named government departments interacted with the appellant in relation to his visa application at different points of time. For convenience, “Department” in these reasons refers to each of the departmental names, including the Department of Immigration and Citizenship, the Department of Immigration and Border Protection and the Department of Home Affairs.

6    The record of the arrival interview states that the appellant said that he left Pakistan “because of all the bad events, explosions, and bad things happening, people getting killed and all these situation [sic] I had to leave and get out of Pakistan.” He said that mainly the Taliban was responsible, that there has been another attack three days ago, and that his cousin had also been killed in another explosion. He said that it happens because of religion and “they just blow themselves up”. He said: “If I was to go back to Pakistan I wouldn’t be safe. My life would be in danger definitely. I would be killed as they are all around our villages and they will kill. That’s why I came here, to bring my family here and they can be safe too.” He said that, after an explosion had taken place in Parachinar he had been involved in a protest against the Taliban and after that he was “in the eyes of the Taliban”.

7    The appellant was interviewed by another officer of the Department on 3 October 2013 (the Case Assessment interview). The record of that interview states that the appellant said that he had a Year 10 education, and had been employed from 2008 to 2013 as an English teacher at the Oswa Public School – Tuition Centre in Agra. Under a question which asked the appellant why he left Pakistan, the Departmental officer recorded his response as: “Not Safe in Pakistan. Teacher in a private school”.

8    On 6 November 2015 the Minister exercised his power under s 46A(2) of the Act to permit the appellant to apply for the visa.

The delegate’s decision

9    The appellant applied for a temporary protection visa in April 2016. He lodged an application for a visa with the Department, along with other documents including a statutory declaration dated 1 April 2016. In the visa application form the appellant said that he had been employed as an English teacher at Oswa Public School – Tuition Centre from 2008 until 2013. But in the accompanying statutory declaration he said that he was employed at that school from 2005. The appellant’s claims in his statutory declaration may be summarised as follows:

(a)    his main reason for seeking the protection of Australia is fear of harm at the hands of the Taliban on account of his Shia religion;

(b)    he had completed his education to year 10, and it is “very important” in Pakistan to have reached that level. After finishing school in 2002 he worked for his father, a dairy farmer, until he got a job working as an English teacher in 2005;

(c)    he worked in Agra as a school teacher and also as a “second Principal”. One day in June 2013 a child brought a letter to him. The letter was written in Urdu and contained threats about what would happen if he continued teaching children. The letter instructed him to leave his job within a week, which he did not do;

(d)    approximately a week after the first letter, a second letter was slipped under the front door of the school. The second letter contained similar threats to the first letter, but made the additional threat that this would be the “last warning”;

(e)    after receiving the second letter he was “very scared” and thought that he would be taken and killed. He did not return to work at the school because he was sure the authors of the letters would be waiting for him. For weeks afterwards he just stayed at home for fear of being recognised and killed;

(f)    he believed that if he stayed in Pakistan he would be killed so he decided to leave the country. He did not want to leave because his wife was five months pregnant at that time, but he considered he had to. He made arrangements as quickly as he could and left Pakistan on 25 June 2013;

(g)    he said that he had participated in a public protest against the violence of the Taliban and that many of the placards used said “stop killing people”. His cousin had been killed in Parachinar by a suicide bombing by the Taliban approximately three days before the protest march. Another of his cousins was killed in 2015 in Parachinar in a different Taliban suicide bombing;

(h)    he was unable to rely upon the Pakistani government for protection from the Taliban, as the government was also fighting the Taliban and was unable to protect ordinary Shia people from them. That is why he did not even attempt to get help from the authorities;

(i)    on return to Agra he would face the same threats as he did before he left, even though he would never risk his life again by going back to teaching. Even though he would not teach again the Taliban would think that this is what he intended to do, and he would be targeted again; and

(j)    in summary he claimed to fear harm at the hands of the Taliban and other anti-Shia militias on the basis of his Shia religion, and also because he is a teacher, which the Taliban also opposed. He also claimed to fear harm at the hands of the Pakistani authorities as he would be identified as a returned asylum seeker from the West. This fear was enlivened because the appellant’s personal information was inadvertently released for several days during February 2014 in a data breach on the Department’s website.

10    The appellant provided the Department with a photograph of a handwritten document dated 10 May 2013 on the letterhead of “USWA Community Model School” in Sultan Kurram Agency, titled “Experience Certificate” (the Experience Certificate). The document was signed by an unnamed person over a stamp “Principal, Uswa Community Model School, Sultan Kurram Agency”. The Experience Certificate said:

It is certified that [the appellant] was a teacher here in UCMS Sultan Kurram Agency. He taught subjects Urdu, Pakistan Study, Mathematics and Drawing. He was a very hard-working teacher and his method of teaching was very impressive. He is an able and kind teacher.

Wish his success in future.

11    On 31 May 2016 the appellant was interviewed by a delegate of the Minister (the delegate) for the purpose of his visa application (the visa interview).

12    On 21 July 2016, the delegate decided that the appellant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and refused to grant him the visa (the delegate’s decision).

13    The delegate’s decision referred to the Experience Certificate and said that document fraud was endemic in Pakistan, particularly with documents not issued by a competent central authority, and he gave the letter no weight. However, on the basis that the appellant had consistently maintained that he was employed as a teacher at Oswa Public School from 2008 until 2013, and had been able to provide detailed information about his employment when questioned in interview, the delegate was satisfied that the appellant was so employed, noting that the school was a private rather than a government school.

14    The delegate noted that the appellant said that the two threatening letters which demanded that the school be closed and teaching cease were addressed to the school rather than the appellant personally. On the basis of country information which indicated that schools in the Kurram Agency were and had been targeted by militant groups, the delegate accepted the appellant’s claim that the two threatening letters had been delivered to the school.

15    The delegate referred to country information which provided that, over the period between 2012 and 2014, 900 schools had been targeted by militants in the FATA and [Khyber Pakhtunkhwa] alone. However the last reported attack on a school in Kurram Agency was in November 2014, following which the Pakistan government had formulated a National Action Plan to address militancy in that area and other parts of Pakistan. That had led to Upper Kurram being a de-notified area and safe for return. The appellant said in his visa interview that the school where he had worked had reopened. Taking into account the improved security situation in Upper Kurram, the reopening of the school where the appellant had worked, and the threatening letters not having been directed to the appellant personally, the delegate was not satisfied that the appellant faced a real chance of serious harm as a teacher from Parachinar on return to Pakistan, now or in the reasonably foreseeable future.

16    The delegate also referred to country information which said that in some parts of Pakistan, such as the FATA, there were reports of violence, abuse and social and religious intolerance by militant organisations against Shias, including by the use of an improvised explosive device in Parachinar in December 2015. On the basis of the country information the delegate accepted the appellant’s claims that his cousins were killed in bomb blasts in 2013 and 2015. The delegate said, however, that the bomb attack in December 2015 was the only attack that year and that military action by the Pakistan government had reduced the ability of insurgents to target Turi Shias. He found that there having been only one recorded attack indicated that sectarian attacks against Turi Shias in Upper Kurram are infrequent, remote and not systematic. Based on the country information the delegate found that, overall, there is a low level of generalised violence in the Kurram Agency and a general willingness by the Pakistan authorities to protect Shias. On that basis the delegate did not consider that the appellant’s Turi race or Shia religion meant that he faced a real chance of serious harm if he was returned to Pakistan.

The first IAA decision

17    Pursuant to s 473CA of the Act, the Minister referred the delegate’s decision to the IAA on 22 July 2016.

18    The IAA affirmed the delegate’s decision to refuse to grant the appellant a visa on 24 August 2016. The appellant then sought judicial review of that decision in the Federal Circuit Court. On 10 November 2017, for reasons unrelated to the present appeal, the Court ordered that the IAA decision be quashed and remitted the appellant’s visa application for redetermination according to law: CQY16 v Minister for Immigration & Anor [2017] FCCA 236.

The second IAA decision

19    On 16 January 2018 the IAA again affirmed the delegate’s decision to refuse to grant the appellant a visa.

20    Before the IAA the appellant sought to rely on four submissions, respectively dated: 29 July 2016, 9 August 2016, 7 September 2016 and 20 December 2017:

21    The 29 July 2016 submission was just a short note from the appellant expressing dismay at the outcome of the IAA decision and attaching the decision record and covering correspondence. The IAA found that this submission was not “new information” under s 473DD of the Act and it had regard to it.

22    The 9 August 2016 submission reiterated aspects of the appellant’s claim and gave further information about his work as a teacher. The IAA found that this submission contained new information, and pursuant to s 473DD that it could not have regard to it.

23    The 7 September 2016 submission (the third submission) addressed anonymous allegations made against the appellant that he had killed members of the Taliban. The appellant denied that, as he had denied it in an earlier letter to the delegate. He also addressed various asserted mistakes in the delegate’s decision and in the first IAA decision including that the first IAA decision stated that he said he was an English teacher. He said that was wrong, and that at the visa interview he said that there was only “very small English” taught at the school and he was a teacher not an English teacher. He said that he taught Urdu, Pakistan Study, Mathematics and Drawing and he was sometimes an acting Principal of the school, not the regular Principal.

24    The IAA found that that this submission was not “new information” and it had regard to it.

25    The 20 December 2017 submission (the fourth submission) related to an asserted dramatic deterioration in the security situation for Turi Shias in the Upper Kurram region of Pakistan. It noted that the delegate’s decision was made, in part, on the basis of country information that showed that there was only one attack recorded in Upper Kurram in 2015 and that military action by the Pakistan government had reduced the ability of insurgents to target Turi Shias. The delegate had concluded on the basis of the country information that sectarian attacks against Turi Shias in Upper Kurram are infrequent, remote and not systematic.

26    The fourth submission pointed to newspaper reports and a Department of Foreign Affairs and Trade Report dated 1 September 2017 (DFAT Report), which the submissions contended showed a dramatic increase in violence against Turi Shias, including:

(a)    on 21 January 2017, a bomb explosion in Parachinar’s Eidgah market resulting in the death of over 20 persons and the wounding of another 80;

(b)    on 31 March 2017, a car bomb explosion in a crowded marketplace in Parachinar, near a Shia place of worship, resulting in the death of over 20 persons and wounding of another 90; and

(c)    on 24 June 2017, two bomb explosions in a Parachinar city market, while locals were preparing for Eid celebrations, resulting in the death of 72 persons and wounding of another 200.

27    The submissions relied on the following quotes from the DFAT Report:

(a)    “[t]hese [2017] attacks ostensibly targeted Turi Shi’a because of their religious affiliation, and killed more than 120 people”;

(b)    “[w]hile Turis are not visually distinguishable from other Pashtuns, they can often be identified if stopped by militants because of their accents or because of identity cards bearing distinctively Turi names; and

(c)    “DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith”.

28    The IAA found that this was “new information” which was not and could not have been provided to the Minister before the delegate’s decision, and that there were exceptional circumstances to justify considering it because it provided a recent account of circumstances in Pakistan relevant to the appellant’s case. The IAA had regard to the fourth submission.

29    The IAA summarised the appellant’s claims as follows (at [24]):

•    The applicant is a Pashtun of the Turi tribe and a Shia Muslim from Agra, Parachinar, Kurram Agency, Federally Administered Tribal Areas (FATA), Pakistan.

•    He worked as a teacher in his home town at Oswa Public School – Tuition Centre from 2008 to 2013.

•    There are a lot of explosions and violence in his home town.

•    About three months before he left Pakistan, he participated in a protest demonstration against violence in the main city closest to his home town.

•    The applicant was personally threatened by his feared persecutors.

•    In June 2013, a student found a letter containing threats at the gate of the school. The letter warned that the school should be closed and that the school stop teaching the students.

•    One or two weeks later, a second threat letter was put under the door of the school with a warning that the school be closed and that there would be no further warning. The applicant then hid at home until he was able to arrange to depart Pakistan.

•    Two of the applicant’s cousins were killed in bomb blasts in the applicant’s home town. One was killed in 2013 and the other was killed in 2015.

•    The applicant fears harm from the Taliban or anti-Shia militants if he returns to Pakistan because he was a teacher, he is a Shia Muslim, he is a member of the Turi tribe, and because he is from his home town.

•    The applicant fears harm from the Pakistani authorities because he applied for asylum in Australia and because his personal details were released by the Department in a data breach.

30    It is unnecessary to detail those parts of the IAA’s decision which are not relevant in the appeal. Relevantly to the two primary grounds of appeal, the IAA found as follows.

The claim based upon the appellant having been a teacher

31    The IAA rejected the appellant’s claim that he was a teacher, and his claim that the school where he worked received two threatening letters, for the reasons it set out at [30]-[41]. The IAA said as follows:

[30]    The applicant claimed that, with only Year 10 education in secondary school, he was employed as a teacher at a school and he also worked as vice principal, acting principal, or second principal at that school. The applicant appears not to have any teaching qualifications.

[31]    I have significant concerns about the applicant’s evidence. Firstly the applicant claimed in the arrival interview on 30 July 2013 (as recorded in writing by an officer of the Department) that he was employed as an English teacher at Oswa Public School – Tuition Centre, Agra from 2008 to 2013. The applicant confirmed this evidence and stated in his TPV application that he was employed from 2008 to 2013 at Oswa Public School – Tuition Centre as an English teacher. In answer to questions 34 and 84 of Part C of the TPV application, the applicant stated that his occupation is “English Teacher”. In the declaration at question 100, the applicant again stated that his occupation is “English Teacher”. The applicant stated in his Statutory Declaration declared on 1 April 2016 that he “got a job working as an English Teacher in 2005”.

[32]    However, in the letter (purportedly from a school) dated 10 May 2013 with a heading ‘Experience Certificate’, the letterhead shows that the name of the school is ‘Uswa Community Model School UCMS’. There is no reference in this letter to the applicant being an English teacher. The letter states that the applicant taught four subjects, but English is not one of the subjects. The four subjects are “Urdu, Pakistan Study, Mathematics and Drawing”. A further concern about this letter is that it purports to be signed by the Principal yet the name of the Principal is not stated in the letter. Another concern is that the letter does not state how long the applicant worked at the school, when he started teaching at the school or when he finished working there. It also does not mention that the applicant ever worked as a vice principal, acting or second principal at the school.

[33]    I have also had regard to information in the DFAT Country Information report4 regarding the prevalence of fraudulent documents in Pakistan. DFAT states that document fraud is endemic in Pakistan and that fraudulent school records and other documents are common. Taking into account my significant concerns about this document that purports to be a reference letter or ‘experience certificate’, and taking into account that document fraud is endemic in Pakistan, I place little weight on this letter.

[34]    The applicant called the school, Oswa Public School – Tuition Centre, but the letter states that the school is Uswa Community Model School UCMS. It could be a translation issue that the school is named either Oswa or Uswa. However, I am not satisfied that a translation issue explains the difference in the full name of the school. The applicant called it Oswa Public School – Tuition Centre at the arrival interview. However, in the letter purportedly from the school, the school is named as Uswa Community Model School UCMS. As well, the applicant stated that the school is located in Agra, whereas the letter purportedly from the school states that it is in Sultan Kurram Agency. It is of significant concern that the name of the school referred to by the applicant and the location are different from the name of the school and the location stated in the letter dated 10 May 2013.

[35]    It is also significant that, at the arrival interview on 30 July 2013, although he mentioned that he was employed as an English teacher from 2008 to 2013, he made no mention of threats to the school at which he claimed to work. He told the officer of the Department that he left Pakistan because of all the bad events, explosions, and bad things happening with people getting killed and he had to leave and get out of Pakistan. When asked by the officer if anything happened to the applicant and his family, the applicant stated that nothing happened because they are not directly in that area. The applicant only referred to general violence against Shias in his home area and that he suspected that the Taliban was responsible for the violence.

[36]    There are also differences in the applicant’s evidence as to when he commenced working as a teacher. At the arrival interview and in the TPV application, the applicant stated that he commenced working as a teacher in 2008. However, in his Statutory Declaration declared on 1 April 2016, the applicant stated that he “got a job working as an English Teacher in 2005”.

[37]    There were also inconsistencies in the applicant’s evidence about the two “threat” letters. At the protection visa interview, the applicant stated that there was a two week gap between the first and second “threat” letters, but he also told the delegate at that interview that there was a one week gap.

[38]    At the protection visa interview, the delegate brought to the applicant’s attention an inconsistency in his evidence as to how long he waited after the second threat letter before he departed Pakistan. In his Statutory Declaration dated 1 April 2016, he claimed that he waited weeks between the second threat letter and his departure from Pakistan. However, at the protection visa interview on 31 May 2016, the applicant stated that he stayed for one week before he went to Islamabad and left Pakistan. I have considered the applicant’s explanation at the protection visa interview for this significant inconsistency but do not accept it as credible. The applicant claimed that, in referring to “weeks”, he was referring to the period between the first letter and his departure. However, the reference in his Statutory Declaration is clearly a statement about waiting weeks after the second letter.

[39]    I am not satisfied that the applicant’s mental health claims explain the significant and many inconsistences in his evidence about his claimed occupation in Pakistan as a teacher. I have listened to the protection visa interview and I am satisfied that the applicant gave clear answers to the questions asked of him.

[40]    I have carefully considered the evidence but I am not satisfied that the applicant is telling the truth about the work he undertook in Pakistan from either 2005 or 2008. I do not accept that the applicant was a teacher in Pakistan and I do not accept that he was an English teacher. Whilst he stated at the protection visa interview that he was a teacher of other subjects (Drawing, Urdu, Social Studies (or Social Science) and Mathematics), the anomalies about the subject(s) he taught, where the school was located, the name of the school, the fact that the letter purporting to be a letter about his experience did not mention that he was an English teacher or the periods that he had worked at the school, as well as the prevalence of fraudulent documents in Pakistan, and the fact that there is no evidence that he has any qualifications for teaching, lead me to find that he was not a teacher in Pakistan. I am satisfied that the letter dated 10 May 2013 purportedly from Uswa Community Model School UCMS is not a genuine document. I find that the applicant has fabricated claims to enhance his protection visa claims and he has also provided a document (letter dated 10 May 2013) which is not genuine.

[41]    I also find that the applicant has fabricated his claims that he worked at a school which received letters containing threats. I do not accept that he was threatened as a teacher of a school or that the Taliban, anti-Shia militants or others will target the applicant to harm him because he was a teacher. I am not satisfied there is a real chance the applicant will be harmed by the Taliban or other anti-Shia militants or by others because of his claim that he was a teacher, now or in the reasonably foreseeable future, if he returns to Pakistan.

The claim based on the appellant being a Pashtun, a member of the Turi tribe and of Shia faith, from the FATA

32    The IAA noted the appellant’s claims that:

(a)    he had been involved in a protest against the Taliban, following which he was “in the eyes of the Taliban”. He said that the protest was a march against violence and it was the first and only occasion he participated in a protest (at [42]);

(b)    his cousin was killed in a bomb blast in 2013 and another cousin was killed in a bomb blast in 2015 (at [43]); and

(c)    he feared that he would be targeted and harmed because he is a Pashtun, of the Turi tribe and of Shia faith, and because he comes from Parachinar in the Upper Kurram region (at [43]).

33    The IAA said that it had regard to a DFAT Thematic Report dated 15 January 2016 and to the DFAT Report dated 1 September 2017 which are referred to above. The later report updated and replaced the earlier report.

34    The IAA noted that the DFAT Report states that significant numbers of Shias live in areas of Pakistan such as Peshawar, and in Kurram and Orakzai Agencies in the FATA. According to country information, Pakistan’s population is estimated to be around 193 million, 95% of which are thought to be Muslim. Most of the Shias in Kurram Agency are from the Turi tribe, an exclusively Shia Pashtun tribe of around 500,000 people.

35    The IAA had regard to the DFAT Report and to reports of the UK Home Office and the US Department of State and said that country information indicates that militant groups, including the Taliban, target Shias, including in the FATA (at [46]). It also said that the reports indicate that Pakistani authorities are taking significant steps to protect Shias.

36    In relation to the appellant’s claim that he had a well-founded fear of persecution as a Pashtun Turi of Shia faith from the FATA the IAA said the following (at [48]-[52]]:

48.    The reports indicate that the Pakistani authorities are taking significant steps to protect Shias. The DFAT Country Information Report12 states that DFAT assesses that Shia in the FATA ‘typically face a low risk of sectarian violence overall, in the context of a moderate level of militant and criminal violence across the region.’ DFAT assesses that ‘the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the FATA. Prior to an attack in January 2017, Parachinar had experienced relative calm.

49.    In the DFAT Country Information Report13, DFAT reported that violence in the FATA generally declined during 2016. DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shia faith. DFAT stated that ‘operation Zarb-e- Azb and associated anti-terrorism activities led to a significant decrease in the number and severity of attacks on Turis in 2015 and 2016. However, three large-scale attacks targeting Turis in Parachinar occurred during the first six months of 2017.’

50.    The country information14 indicates that the government and military operations in Pakistan have disrupted the activities of militant groups and thousands of militants have been killed. The frequency of sectarian attacks has reduced significantly in recent years.

51.    I have already found that the applicant was not threatened as a teacher of a school or that he worked at a school which received letters containing threats, or that the Taliban or anyone else will target the applicant to harm him because of his claim that he was a teacher.

52.    I am satisfied that the applicant did not suffer any harm when he was in Pakistan for reasons of his being a Pashtun member of the Turi tribe, because he is a Shia Muslim or because he lives and comes from the FATA. I am satisfied that the applicant did not suffer any harm after he participated in a protest march against violence. Although there were three serious incidents in Pakistan in the first half of 2017 as reported in the DFAT report in September 2017, the information before me is that sectarian violence has declined significantly in Pakistan and that the government and military operations in Pakistan have disrupted the activities of militant groups and thousands of militants have been killed. In light of the country information and the absence of credible evidence that the applicant has ever been harmed or targeted in Pakistan for being a Turi, a Pashtun, Shia, for participating once in a protest, or that he was from the FATA, I find that there is not a real chance that the applicant will face serious harm for these reasons, now or in the reasonably foreseeable future, if he returns to Pakistan. I have considered his claims individually and cumulatively and do not accept that there is a real chance that the applicant will suffer harm if he returns to Pakistan.

On that basis the IAA rejected the appellant’s claim.

The application to the Federal Circuit Court

37    On 21 March 2018 the appellant applied to the Federal Circuit Court for judicial review of the IAA decision. By an amended application dated 22 January 2019 the appellant sought review of the IAA’s decision upon the grounds that the IAA had:

(a)    engaged in irrational or illogical reasoning in making its findings as to the credibility or probity of the appellant’s evidence;

(b)    failed to apply the appropriate predictive test by placing substantial and disproportionate weight on its finding of an absence of past harm; and

(c)    failed to have regard to a relevant consideration or otherwise failed to carry out its statutory task.

38    The primary judge heard the application for judicial review on 18 February 2019. On 28 June 2019 her Honour dismissed the application: BJO18 v Minister for Home Affairs & Anor [2019] FCCA 1616.

The irrational or illogical reasoning ground

39    In relation to the ground which alleged irrational or illogical reasoning on a number of particularised bases, the primary judge noted the appellant’s submission that it was illogical for the IAA to have rejected the appellant’s evidence principally on the basis of inconsistencies with the Experience Certificate provided by the appellant, which the IAA had rejected as fabricated. The primary judge said (at [40]) that “[a]t the heart of this submission is the proposition that it is illogical to suggest that the applicant would go to the trouble of fabricating a document which then did not actually support his case.”

40    The primary judge noted the appellant’s contentions that:

(a)    the IAA’s finding that the Experience Certificate was fabricated was irrational and illogical and not supported by the evidence (at [41]);

(b)    the prevalence of document fraud in Pakistan is not a proper basis for the IAA to make a finding that a particular document is fraudulent (at [41]);

(c)    there is an internal inconsistency between the IAA saying that it would place little weight on the fabricated Experience Certificate on the one hand, and then finding that it was not a genuine document on the other (at [42]);

(d)    the IAA irrationally applied a “developed-world standards of documentary comprehensiveness, and institutional formality and professionalism to a small rural school in a developing country.” On this submission, the terms of the Experience Certificate could not reasonably support a finding adverse to the appellant, particularly, when he had not been afforded the opportunity to be heard by the IAA and have his credit assessed in the usual way (at [43(a)];

(e)    it was irrational or illogical for the IAA to conclude that the appellant was not a teacher on the basis that he did not hold formal teaching qualifications and in the absence of an opportunity to respond to or test that assumption (at [43(b)];

(f)    it was irrational for the IAA to draw an adverse inference from the apparent inconsistency between the name and geographical location of the school, particularly where this matter was not raised with the appellant (at [43(c)];

(g)    there are various other irrational conclusions or inconsistencies in the IAA’s reasoning whereby the IAA considered various minor inconsistencies to be significant (at [43(d)]; and

(h)    the IAA failed to consider whether inconsistencies in the appellant’s evidence might be explained by something short of ‘untruthfulness’, particularly so given that the appellant’s request for an opportunity to give further oral evidence was denied (at [43(e)].

41    The primary judge said (at [57]-[60]) that in considering a decision-maker’s reasons, the court ought not construe them minutely and finely with an eye keenly attuned to the perception of error, and said that this principle was of particular importance to the present case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]. Her Honour then referred to some of the authorities in relation to judicial review for illogicality, irrationality or legal unreasonableness (at [61]-[67]), including: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 610 (SZMDS) at [130] (Crennan and Bell JJ); Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at [82] (Nettle and Gordon JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 (AVQ15) at [22]-[28] (Kenny, Griffiths and Mortimer JJ).

42    The primary judge then briefly analysed the IAA’s reasoning for rejecting the appellant’s evidence (at [73]-[78]) and then said (at [79]-[80]):

[79]    Contrary to the submission made on behalf of the applicant, it is not, in my view, plainly illogical for the IAA to have rejected the evidence on the basis of evidence which the IAA decided was fabricated.

[80]    First of all, it is clear from a fair reading of the IAA’s reasons that the reason for rejecting the applicant’s claims that he was a teacher and that he taught at a school which received threats, was based not only on the letter produced by the applicant but on a whole range of factors, which are identified in the IAA’s reasons at paragraphs 30 to 40, namely:

   a    on the applicant’s own evidence, he only had completed year 10 study;

b    not only was he a teacher, but at times he acted as assistant principal in the school;

   c    the applicant did not appear to have any teaching qualifications;

d    the inconsistent evidence given by the applicant at various stages about the subjects which he was employed to teach at the school;

e    the lack of consistency between the subjects the applicant said he was employed to teach and the letter which purported to be from the school itself;

f    the lack of detail in the letter from the school as to how long he had been employed at the school and the absence of any statement in that letter to the fact that the applicant had apparently worked as an assistant principal from time to time;

g    the lack of consistency between the name and location of the school at which the applicant said he worked by the applicant as compared to the letter from the school itself;

h    the fact that the applicant had not disclosed the alleged threats received by the school in his arrival interview; and

i    various other inconsistencies between the applicant’s evidence over time, about, for example:

    (i)    when the threat letters were received;

    (ii)    when he started teaching at the school; and

(iii)    how long after the receipt of the threat letters he waited before leaving Pakistan.

43    Her Honour concluded (at [82]):

I am satisfied, that the conclusions reached by the IAA were reasonably open to it on the basis of the evidence before it. The reasons given are detailed and do not disclose any illogicality or irrationality in the sense necessary to make a finding of legal unreasonableness. Whilst it would be fair to say that individually these concerns may not give rise to sufficient basis to reject the applicant’s claims, having regard to them cumulatively, it was open to the IAA to reach the conclusions that it did.

44    To the extent that the appellant took issue with the finding that the Experience Certificate was the fabrication the primary judge said (at [83]-[85]) that the facts in the present case were not analogous with those in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647; (2016) 69 AAR 376 (BTF15) (Katzmann J).

45    Her Honour said (at [86]-[89]) that there was force in the Minister’s argument that the appellant’s submissions were “an impermissible attempt to minutely scrutinize the reasons in zealous pursuit of error” and constituted “nitpicking” the language of the IAA. Her Honour treated as important that the appellant did not say in the arrival interview that he fled Pakistan because he was a teacher at a school to which threatening letters had been sent. Instead he referred only to a fear of generalised violence at the hands of the Taliban and he made no mention of any specific threat.

46    The primary judge noted (at [96]) the appellant’s argument, made in reliance of the Full Court decision in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (CQG15) (McKerracher, Griffiths and Rangiah JJ), that the IAA erred in making a finding of fabrication or untruthfulness in circumstances where there may have been another equally probable explanation for the conflict in the evidence which was not properly explored. Her Honour noted however (at [100]) that the Court in CQG15 said (at [66]):

It may be accepted that cases such as SZNPG and Smith do make the point that, unless it is strictly necessary, it is preferable not to reach a conclusion that an applicant is a “liar”. But while this is indeed sound practice, the remarks do not suggest that the Tribunal will have fallen into jurisdictional error if it does reach such a finding. There was ample foundation in this instance for the Tribunal to reach the conclusion that the appellant was not a witness of truth.

47    Her Honour then said (at [101]-[103])

In this case, credibility of the applicant was in issue. A fair reading of the IAA’s reasons indicate that the IAA had a number of concerns about the applicant’s credibility, particularly in relation to his claims of fear arising from the fact that he was employed as a teacher at a school which received two threat letters.

Those concerns arose from:

a.    the fact that the applicant had only completed year 10 at high school;

b.    the applicant’s lack of professional teaching qualifications;

c.    the inconsistency in his material as to the subjects that he was employed to teach;

d.    inconsistencies in the name and location of the school between evidence given by the applicant and a letter put forward by him to evidence his employment history;

e.    inconsistencies in the year that the applicant says that he commenced teaching;

f.    the statements made by the applicant in his arrival interview as to the reasons for having left Pakistan, with no reference at all to his status as a teacher;

g.    inconsistencies in the applicant’s evidence about when the two threat letters were received; and

h.    the fact that the applicant had not referred to his claims of fear arising from his teaching and the threats received until 2016.

When viewed together and having regard to (although rejecting) the possibility that some of these inconsistencies might have been explained by translation error or mental health considerations, it was open to the IAA to conclude that the applicant was not telling the truth about these claims. Moreover, as stated above, having regard to country information regarding the prevalence of fraudulent documents in Pakistan, it was reasonably open to the IAA to conclude that the reference letter produced by the applicant to support his claims was not genuine.

The failure to apply the appropriate test in relation to the risk of harm ground

48    Under this ground the appellant contended that the IAA erred or constructively failed to carry out its statutory task by failing to apply the appropriate test in relation to the risk of harm the appellant would face if returned to Pakistan.

49    The primary judge noted the appellant’s submissions that:

(a)    as a result of the IAA’s rejection of the appellant’s claim to be a teacher, and its focus on his having suffered no historical harm, the IAA failed to undertake the appropriate predictive exercise and focus on the future risk of harm (at [111]);

(b)    while evidence of past harm is relevant, the IAA gave excessive weight to the absence of past harm suffered by the appellant (at [112]); and

(c)    the DFAT Report showed a risk of future harm, and therefore the IAA “must have misdirected itself as to the application of the relevant statutory provisions” (at [113]).

50    The primary judge considered there to be force to the Minister’s submission that this ground of review could not succeed if the first ground failed (at [114]) but found nonetheless that, on a fair reading of the IAA’s reasons, it did in fact consider whether the appellant would face a real risk of harm in the future as claimed (at [116]) and had regard to country information in coming to the conclusion that the appellant would not face serious harm if he were to return to Pakistan (at [117]).

The failure to have regard to relevant considerations ground

51    The third ground of review before the primary judge was articulated in the following terms:

The Authority committed jurisdictional error by failing to have regard to a relevant consideration or otherwise failed to carry out its statutory task.

Particulars

(a)    The Authority had determined that allegations of serious criminal conduct against the applicant were not relevant to its task or decision, and determined not to have regard to that information (at [23])

(b)    A significant matter which bore upon the Authority’s rejection of the applicants claim of a risk of harm from the Pakistani Authorities, was whether the applicant was suspected of criminal conduct (at [60] and [61]).

(c)    In making its determination in that regard, having ruled out its relevance, the Authority failed to consider the allegations of serious criminal conduct against the applicant.

(d)    In the premises, the Authority failed to take into account a relevant consideration or otherwise failed to carry out its statutory task.

52    The appellant’s written submissions in relation to this ground were brief and counsel did not expand on this ground in oral submissions. The primary judge set out the appellant’s submission (at [120]) as follows:

In relation to the Data Breach claim, the Authority placed significant weight on DFAT reports that Pakistani authorities do not prolong the detention of failed attempted migrants “who left Pakistan on valid travel documentation and have not committed any other crimes”. In applying this information to the applicant, the Authority simply noted his claims of lawful departure and non-criminal history. However, the Authority was aware of, and did not consider the implications of, the evidence that the data breach revealed that the applicant was in detention in Australia.

53    The Minister submitted that the ground was unsustainable and that the written submissions did not address the issue it raised. He argued that the written submissions seemed to be directed towards the data breach claim, but the ground itself seemed to be directed towards “allegations of serious criminal conduct against the [appellant]”. The primary judge held that the ground was not made out and said (at [126]):

A fair reading of the IAA’s reasons, particularly in relation to the data breach claim, makes it clear that the IAA did consider the applicant’s claim that he feared harm on the basis of his personal details having been revealed as a result of the data breach. This is apparent especially upon a fair reading of paragraphs 55 and 59.

The appeal

54    On 24 July 2019 the appellant filed an appeal to this Court against the judgment of the Federal Circuit Court. By an amended notice of appeal dated 11 October 2019 the appellant raises three grounds of appeal. The appellant relies primarily on grounds one and three.

Ground 1 - Irrational or illogical reasoning and legal unreasonableness

55    In ground one of the appeal, the appellant alleges that:

The Judge below erred by not finding that decision [sic] of the Immigration Assessment Authority (IAA) was affected by jurisdictional error in that the IAA engaged in irrational or illogical reasoning in making its findings as to the credibility or probity of the applicant’s evidence.

Particulars

(a)    The IAA concluded that the applicant was not truthful, had fabricated claims and produced fabricated evidence on account of inconsistencies, in circumstances where those “inconsistency” findings were either:

(i)    made without hearing evidence from the applicant;

(ii)    not reasonably open to the IAA;

(iii)    minor;

(iv)    not further assessed for significance in accordance with law.

(b)    The IAA made findings in relation to the applicant’s credibility on the basis of inconsistencies between his evidence and other evidence which it determined to be fabricated, without affording him an opportunity to give evidence.

(c)    The IAA made unwarranted assumptions in relation to:

   (i)    regulatory frameworks or the compliance therewith; and

(ii)    standards of institutional professionalism and formality in the applicant’s country;

(d)    The IAA applied a logically inconsistent approach to the assessment of inconsistencies in the applicant’s identification and occupation evidence.

(e)    The IAA made adverse findings as to the applicant’s credibility without allowing the applicant to give evidence.

(f)    The IAA used illogically derived or unassessed minor inconsistencies and trivial errors to make adverse findings as to the applicant’s credibility, where that credibility finding was critical to the IAA’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa.

(g)    The IAA failed to consider explanations for the inconsistencies found that were:

(i)    given by the applicant; or

(ii)    reasonably available.

In relation to the one explanation it did consider, it failed to do so in a rational manner.

(h)    The IAA failed to consider the effect of relevant information (which it had expressly acknowledged) in arriving at conclusions on which that information would have a clear bearing, and relied on information of objectively lesser significance in arriving at those conclusions.

56    The illogicality, irrationality or legal unreasonableness which the appellant alleges may be briefly summarised as follows.

57    First, the appellant alleges that the IAA’s findings that the appellant’s evidence was not truthful, that he had fabricated his claims to have been a teacher and to have worked at the named school which received two threatening letters from the Taliban or another anti-Shia militia group, and that the Experience Certificate was fabricated, were illogical, irrational or legally unreasonable in that:

(a)    the identified inconsistencies in the evidence that underpinned those findings were explicable, minor, and the IAA did not assess them for significance; and

(b)    the IAA’s approach in identifying and assessing the identified inconsistencies was illogical and unreasonable.

This ground is not though limited to inconsistencies in the appellant’s evidence as his argument is also based in matters which are more accurately described as shortcomings the IAA identified in the appellant’s evidence.

58    It is central to the appellant’s argument that the IAA went further than just rejecting the appellant’s evidence that he had worked as a teacher in Pakistan at the named school which received threatening letters. It found that:

(a)    the Experience Certificate was “not genuine” that is, it was a forgery (at [40]); and

(b)    the appellant “fabricated his claims that he worked at a school which received letters containing threats” (at [41]).

In short, the IAA found that the appellant was lying about having been a teacher that had worked at a school which received threatening letters and had proffered a forged document to support that false claim (the adverse credibility findings).

59    Second, the appellant submits that it was illogical or legally unreasonable for the IAA to find it significant that the Experience Certificate was inconsistent with the appellant’s other evidence, and simultaneously find the Experience Certificate to be fraudulent. The appellant submits that the two findings cannot logically stand together.

The Minister’s submissions

60    The Minister submits, correctly, that for the IAA’s decision to be vitiated for jurisdictional error based on illogicality or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown: CQG15 at [60]. If logical or rational or reasonable minds might differ in respect to the conclusions to be drawn from the 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: SZMDS at [131].

61    On the Minister’s argument, the reasoning process of the IAA was not illogical or irrational and while the appellant expressed emphatic disagreement with the IAA’s decision, he failed to identify jurisdictional error.

62    The Minister rejects the appellant’s contention that the inconsistencies in the appellant’s evidence identified by the IAA are of little or no probative value. He argues that the IAA was correct to make the findings of inconsistency because the appellant “could not get his story straight” before the IAA. The result was that the IAA rejected his evidence about being a teacher in its totality and in doing so found that the Experience Certificate was fabricated. The Minister argues that those findings are based on reasoning derived from probative evidence including that the contents of the Experience Certificate and the other evidence proffered by the appellant were inconsistent insofar as concerned the name of the school and the location of the school (at [34]), and the appellant being an English teacher rather than teaching other subjects (at [32]).

63    The Minister submits that:

(a)    the IAA’s finding that the Experience Certificate was fabricated was not based simply on it containing information that was inconsistent with the appellant’s other evidence. It was also based on:

(i)    the Experience Certificate not stating the name of the Principal who signed it, the date on which the appellant commenced working and finished working at the school, or that the appellant had acted as assistant principal; and

(ii)    country information that document fraud is endemic in Pakistan; and

(b)    the IAA’s finding that the appellant fabricated his claim to have been a teacher at a school which received threatening letters was not based simply in inconsistencies between his evidence and the contents of the Experience Certificate. It was also based on:

(i)    the implausibility of the appellant’s claim to have been employed as a teacher at the school and to have acted as principal in circumstances where his evidence was that his highest level of education was “Year 10” and it appeared that he did not have any teaching qualifications;

(ii)    inconsistencies in the appellant’s evidence about when he commenced working as a teacher at the school, the period of time between the two threatening letters being received, and the period of time between the school receiving the second threatening letter and his leaving Pakistan; and

(iii)    the fact that the appellant did not mention the threatening letters in his arrival interview.

64    The Minister contends that the Experience Certificate and the appellant’s other evidence in relation to his having been a teacher at a school which received threatening letters was inconsistent, and in those circumstances it was not illogical or irrational for the IAA to reject his account on that basis. The Minister denies that there is any basis for the appellant’s characterisation of the IAA’s findings as showing that it engaged in a “a quest to disbelieve” him, and contends that the IAA’s reasons disclose a thorough and reasoned basis for the findings it made.

65    In relation to the IAA’s finding that the appellant’s evidence that the school was located in Agra was inconsistent with the Experience Certificate (which said it was located in Sultan Kurram Agency) the Minister argues that the “mere fact” that there was material before the IAA from which it might be argued that there was, in fact, no such inconsistency did not place any obligation on the IAA determine the issue in the appellant’s favour. On the Minister’s argument, it was open to the IAA on the material before it to find that the appellant provided inconsistent evidence in respect of the location of the school.

66    The Minister also argues that the appellant’s contention that the primary judge failed to properly address the decisions in BTF15 and CQG15 should be rejected. The Minister contends that BTF15 does not assist the appellant because that decision related to the circumstances in which it may be legally unreasonable for a decision-maker not to exercise a statutory discretion. The Minister argues that the primary judgment (at [100]-[103]) shows a correct understanding that CQG15 is authority for the proposition that a decision-maker will not fall into jurisdictional error by coming to the conclusion that a person is not a witness of truth where there is “ample foundation” for such a finding. He contends that the primary judge was correct to hold that the IAA had an ample foundation for finding that the appellant was not telling the truth about having been a teacher at a school which received threatening letters and that the Experience Certificate was forged.

67    Further, the Minister argues that even if one of the many reasons why the IAA rejected the appellant’s evidence that he was a teacher who worked at a school which received threatening letters is affected by error, jurisdictional error does not follow as the single error would not have affected the IAA’s state of satisfaction for the purposes of the appellant’s visa application.

Consideration

68    The IAA did not accept the appellant’s account that he was a teacher who worked for five years at Oswa Public School in Pakistan, and that the school received two threatening letters, from the Taliban or some other anti-Shia militia group. It went further, however, than stating it did not accept his account or it was not satisfied in relation to his visa application on the basis of his account. The IAA found that the appellant was deliberately lying about having been a teacher at a school which had received threatening letters and had fabricated a document to support that false claim. As Katzmann J observed in BTF15 (at [56]):

It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that “as a matter of logic and common sense, something more than a mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence” Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268.

69    The IAA concluded that the appellant was lying about having been a teacher at the named school in the context that the delegate had accepted the appellant’s evidence in that regard. The delegate did not do so on the basis of the Experience Certificate, to which the delegate gave no weight. Rather, the delegate accepted the appellant’s evidence that he was a teacher at Oswa Public School and that the school received two threatening letters on the basis that the appellant had consistently given that account and he was “able to provide detailed information about his employment when questioned at interview”, and also on the basis of country information regarding militant groups targeting schools in the Kurram Agency.

70    Where a delegate makes a finding in favour of the visa applicant, it is likely to constitute a denial of procedural fairness if a reviewing tribunal departs from that finding without informing the applicant that it might consider doing so: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [10] (Tracey, Mortimer and Charlesworth JJ). The materials show that the IAA did not inform the appellant that it might consider departing from the delegate’s finding that he was a teacher. However, in the appeal, the appellant did not allege any such denial of procedural fairness.

71    It is established that adverse credibility findings may involve jurisdictional error on grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis: CQG15 at [38]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83(d)]; DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 at [20]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [33]-[34]. In DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30], Kenny, Kerr and Perry JJ summarised the relevant principles applicable to judicial review of adverse credibility findings, as follows.

(1)    While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

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.

(Emphasis added)

(3)    By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4)    Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56     An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

72    The IAA based its adverse credibility findings on a series of inconsistencies or shortcomings that it identified in the appellant’s evidence at [30]-[41] of its reasons (set out at [31] above). While keeping in mind that the authorities require a high degree of caution, I have concluded that three of the inconsistencies or shortcomings in the appellant’s evidence identified by the IAA, and relied on as part of the foundation for its findings that the appellant had lied about having been a teacher at a school which had received threatening letters and that he had proffered a forged document, fall short of providing a rational, probative or legally reasonable basis for those findings. The three identified inconsistencies or shortcomings are:

(a)    a finding regarding the appellant’s education level;

(b)    an inconsistency the IAA identified regarding the location of the school where the appellant claimed to have worked; and

(c)    an inconsistency the IAA identified regarding the date the appellant commenced working as a teacher.

I now turn to deal with each of these matters.

The finding regarding the appellant’s education level

73    The first reason the IAA gave for finding that the appellant was lying about having been a teacher in Pakistan was because he only had a Year 10 education, yet claimed to have been a teacher at the school and to have also worked as vice principal, acting principal, or second principal (at [30]).

74    This finding reveals an unstated assumption that there are formal teaching qualifications or registration requirements for teachers in remote and rural areas of Pakistan such that a person with a Year 10 education could not be, or was unlikely to be, employed as a teacher. There is nothing to show what the IAA based this assumption on, and there is no basis in the evidence for it. To the extent that there was any probative evidence in relation to the issue, the appellant said that, in Pakistan, a Year 10 education was “very important” and he was not challenged on that. Nor is there a basis in the evidence for an assumption that the school, which was privately run, was subject to a requirement that all of its teachers have qualifications beyond the Year 10 level achieved by the appellant. It appears that the IAA transposed the requirements for the qualification and registration of teachers from modern, developed Western countries across to the relevant school, which is in remote, rural Pakistan. There was no rational, logical or probative basis for the IAA to assume that similar requirements prevailed in schools in such a place.

75    It is also worth noting that the appellant did not contend that by occasionally acting as vice principal, acting principal, or second principal he held some high position in the school. In his third submissions he said that he was “only [a] teacher”, that he was not the “regular principal” but that sometimes he was the “acting principal”. Given that the appellant claimed to have been employed at the small school for five years from 2008 to 2013, the fact that he had a Year 10 education and claimed to sometimes act in a more senior position was not logically or rationally probative of a conclusion that he was lying about being a teacher. Again, it appears that the IAA transposed the requirements for acting in a more senior position from the school systems in modern, developed Western countries to the named school in remote, rural Pakistan. There was no rational, logical or probative basis for that assumption.

The inconsistency the IAA identified regarding the location of the school

76    The IAA said (at [34]) that it was of “significant concern” that the name and location of the school at which the appellant claimed to have worked were different from the name and location of the school stated in the Experience Certificate.

77    In relation to the location of the school, the appellant said that the school is located in Agra, whereas the address of the school stated on the Experience Certificate is Sultan Kurram Agency. The IAA found that to be an inconsistency in the appellant’s evidence. In reality there was no such inconsistency as Agra is a town in Kurram Agency. This asserted inconsistency had no basis at all, and it could not be rationally probative of the serious finding that the appellant was lying about having been a teacher at the school. Put another way, it was not legally reasonable to treat that matter as part of the basis for a finding that the appellant was lying. The identified inconsistency could not form part of the basis for the IAA to have any concern, let alone a “significant concern”, as to the veracity of the appellant’s claim to have been a teacher at the school.

78    The Minister’s contention that it was not for the IAA to investigate whether the village of Agra was, in fact, within Kurram Agency has little force. There was nothing to investigate. The materials before the IAA said, as the delegate found, that the appellant was from Agra, Parachinar which “is located in Upper Kurram, Kurram Agency, FATA, Pakistan”. The IAA identified an inconsistency between Agra and Kurram Agency however, if it had paid attention to the materials it was clear that Agra was in Kurram Agency.

79    Having regard to the materials before the IAA it was not open for it to find that there was an inconsistency in the appellant’s evidence as to the location of the school. There was no rationally probative basis for that finding, which was one of the matters underpinning the IAA’s conclusion that the appellant was lying about having been a teacher at the school.

The inconsistency the IAA identified regarding the date the appellant commenced working as a teacher

80    The IAA said (at [36]) that there are “differences” in the appellant’s evidence as to when he commenced working as a teacher at the school, and it relied on this asserted inconsistency as another of the matters underpinning its conclusion that the appellant was lying about having been a teacher. The asserted inconsistency was that the appellant said in his arrival interview and his visa application that he commenced working as a teacher in 2008 whereas in his statutory declaration he said that he commenced working as a teacher in 2005.

81    But that asserted inconsistency was nothing more than a slip, perhaps a typographical error transposing “2005” for “2008”. The materials show that on every occasion other than in the statutory declaration the appellant said that he was employed as a teacher at Oswa Public School from 2008 until 2013. He said that; (i) in the arrival interview in July 2013; (ii) in the Case Assessment interview in October 2013; (iii) in the visa application form in April 2016; and (iv) in the visa interview on 31 May 2016. His statutory declaration stating “2005” accompanied his visa application form which reiterated what he had repeatedly said; that he commenced employment at the school in 2008. It was legally unreasonable to treat that minor error as an inconsistency in his evidence and as capable of supporting the serious finding that the appellant was lying about the central plank of his claim. Such an error was not rationally probative of the finding

82    Even if, contrary to my view, stating “2005” instead of “2008” on one occasion is accepted to be an inconsistency in the appellant’s evidence, on any view it was objectively very minor. Inconsistencies in a visa applicant’s account may or may not be significant: AVQ15 at [22]-[28] and ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2016) 268 FCR 271 at [39]-[45] (Griffiths, Mortimer and Steward JJ). The authorities show that the decision-maker must assess the significance of an inconsistency found to exist and the weight to be given to it, and give careful consideration to whether there is an acceptable explanation for the inconsistency such that the fact of the inconsistency should attract little if any weight: AVQ15 at [28]; applied in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; (2019) 269 FCR 464 at [180] (Murphy, Mortimer and O’Callaghan JJ). Here, there is nothing to show that the IAA assessed the significance of this asserted inconsistency, nor the weight to be given to it. It was irrational or legally unreasonable for the IAA to treat this minor difference in the appellant’s account as sufficient to form part of the foundation for the serious finding that the appellant had fabricated his claim to be a teacher at the school.

83    In passing it is appropriate to note that the appellant’s submissions said little or nothing in respect to the allegation, particularised in Grounds 1(a), (b) and (e) of the amended notice of appeal, that the IAA decision was legally unreasonable because the adverse credibility findings were made without affording the appellant the opportunity to give evidence. The materials show that the appellant requested the IAA to exercise its discretion under s 473DC(3) of the Act to invite him to an interview, which request was not acceded to. But apart from the assertion of unreasonableness in the particulars the appellant said little to explain how or on what basis the failure to exercise or consider exercising that discretion was unreasonable. The appellant did not refer to or rely on the decision in DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (Griffiths, Mortimer and Steward JJ). Below, the appellant apparently contended that the failure to interview him was a contextual matter which needed to be taken into account in determining whether the IAA’s findings were legally unreasonable: primary judgment at [38]. But before us, if that submission was maintained, how that was said to be so was not developed or explained. Understandably enough in that context, the Minister’s submissions also gave little attention to this issue.

84    It is now established that compliance with the implied condition of reasonableness can in some circumstances require the IAA to consider exercising and/or to exercise its power under s 473DC to get in and consider new information by inviting a referred applicant to an interview: see DPI17 at [45]-[46] per Griffiths and Steward JJ, at [122] per Mortimer J; ABT v Minister for Immigration and Border Protection [2020] HCA 34 at [4], [23]-[25] (Kiefel CJ, Bell, Gageler and Keane JJ), which was handed down after the hearing of the appeal herein . But in the present case there was nothing advanced as to why in the particular circumstances of the case the failure to consider exercising or to exercise the discretion to interview the appellant was legally unreasonable. And unlike in DPI17 and more recently ABT this was not a case in which the delegate’s assessment of the credibility of the appellant’s account was based to a significant extent on the delegate’s perception of the appellant’s demeanour during the visa interview. Nor was the IAA’s adverse assessment of the appellant’s credibility based in a reconsideration of his presentation or demeanour in that interview; it was substantially based in asserted factual inconsistencies in his account.

85    An argument based on the decision in DPI17 may have been open to the appellant but no such argument was made. While I consider the IAA erred in making the adverse credibility findings outlined above, I am not persuaded that that it erred in failing to invite the appellant to an interview.

Materiality of the irrational or illogical reasoning

86    The three asserted inconsistencies or shortcomings to which I have referred are three of a series of matters upon the IAA relied. While those three matters do not provide a logical, rationally probative or legally reasonable basis for the IAA’s conclusion that the appellant was lying about having been a teacher at the school, the question remains whether the IAA’s erroneous reasoning was sufficiently material to the decision to refuse the appellant’s visa application that it deprived him of the realistic possibility of a different outcome in his application: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] and [30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).

87    The IAA’s reasons show that the adverse credibility findings it made were critical to its conclusions that; (a) the appellant had not worked as a teacher at a school which had received threatening letters; (b) he therefore did not have a well-founded fear of persecution because he was a teacher; and (c) it was not satisfied that the appellant met the criteria for the grant of a visa. The Minister does not contend otherwise.

88    On the basis of the rejection of the appellant’s claim to have been a teacher at a school which received threatening letters, the IAA did not accept the central plank of his application for protection, and therefore did not accept that he may be targeted by the Taliban or other anti-Shia militants in the future. It also relied upon that rejection in its assessment of other claims the appellant made (at [51] and [58]). Because the IAA did not accept that the appellant was a teacher, it did not grapple with the country information relied upon by the delegate which indicated that schools had been targeted by militant groups in the Kurram Agency and reports that some teachers have been targeted and killed. The centrality of the adverse credibility findings supports a conclusion that the IAA’s irrational and illogical reliance on the three matters to which I have referred constitutes jurisdictional error: CQG15 at [60] citing with approval Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56].

89    But where, as in the present case, there are multiple reasons for the impugned adverse credibility finding, to decide the question of materiality it is necessary to analyse the reasoning underpinning the finding. This requires attention to be given to whether: (a) the finding was reached by a sequential process of reasoning such that each of the matters relied on is akin to a link in a chain; (b) the various reasons are expressed as being separate and independent bases for the conclusion: or (c) an intermediate position applies, in which the various matters relied on for the finding comprise different strands in a net or thread of reasoning, such that some combination of the matters, but not all, were required to reach the conclusion: Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 at [23]-[26] (Heerey J).

90    On a fair reading of its reasons the IAA did not use a sequential process of reasoning such that each of the inconsistencies or shortcomings it identified as underpinning the adverse credibility findings was a link in the chain of reasoning. The removal of one link in the chain does not mean the adverse credibility findings are necessarily erroneous. Nor do the IAA’s reasons show that each of the matters upon which it relied provide a separate and independent basis for the finding. The IAA identified a series of matters as supporting the adverse credibility findings and it did not point to any particular matter as being more important or major in relation to the finding. On a fair reading it treated the various inconsistencies or shortcomings it identified as cumulative, that is, as different strands in a net or thread supporting the findings.

91    On this basis the Minister submits that, to the extent that some of the inconsistencies or shortcomings the IAA identified are found not to support the adverse credibility findings, the other matters the IAA took into account provided an “ample foundation” for the findings: see CQG15 at [66].

92    I do not accept that submission. The difficulty for the Minister is that while each individual strand of an impugned finding based on cumulative strands need not be capable of supporting the finding, the finding is only as good as the combination of the strands supporting it. In my view three of the strands which the IAA relied on to support the finding are not capable of doing so. Where, as in the present case, a decision-maker relies on intermingled matters in coming to a finding and there is no proper basis for one or more of the matters relied on, jurisdictional error may result: ARG15 at [74]; CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 (CGA15) at [61] (Murphy, Mortimer and O’Callaghan JJ).

93    Nor is this a case in which the IAA’s erroneous reasoning was trivial to the adverse credibility findings, or that the balance of the strands supporting the findings otherwise provide an ample foundation for the findings. While I am persuaded that the other inconsistencies or shortcomings which the IAA identified reach the necessary minimum probative standard, and thus provide some support for the adverse credibility findings, in my view the support that some of them provide is slight. Such matters include:

(a)    the inconsistency the IAA identified regarding the name of the school;

(b)    the finding that the Experience Certificate is not genuine; and

(c)    the appellant’s failure to refer to the threatening letters in his arrival interview.

The inconsistency the IAA identified regarding the name of the school

94    The IAA accepted, correctly in my view, that the difference between “Oswa” and “Uswa” was explainable as a translation error. The inconsistency which the IAA identified, and relied upon as part of the foundation for its conclusion that the appellant was lying about having been a teacher is the difference between “Public School – Tuition Centre” and “Community Model School”. Those two descriptions are obviously different, but common experience teaches that institutions sometimes use different names for different purposes, sometimes names change over time, and sometimes different names are used colloquially as distinct from the name in formal documents.

95    I do not though speculate about such possible explanations; what is more important is that the appellant may have been able to provide an explanation for the difference in the names and he was given no opportunity to do so. The delegate accepted that he had been a teacher at Oswa Public School – Tuition Centre and the IAA gave him no notice that there was an issue regarding whether or not he was a teacher at that school and he was not given an opportunity to provide an explanation. Such an opportunity was appropriate because the IAA was required to assess the significance of the inconsistency it identified and the weight to be given to it, and give careful consideration to whether there was an acceptable explanation for the inconsistency, such that the fact of the inconsistency should attract little if any weight: AVQ15 at [28]. Merely highlighting the difference in the names and dismissing translation error and mental health as tenable explanations for the identified inconsistency does not show that the IAA gave careful consideration to whether there existed an adequate explanation for the inconsistency.

96    This inconsistency provides only limited support for the adverse credibility findings.

The finding that the Experience Certificate is fraudulent

97    The IAA said (at [40]) that it was satisfied that the Experience Certificate is not a genuine document. It was open to the IAA to find that the document was a forgery but the basis for the conclusion was thin, and it provides only limited support for a finding that the appellant was not a teacher at the school. Nor is it self-evident that the IAA would have reached the view that the document is a forgery absent the three inconsistencies or shortcomings it erroneously relied on. It is also worth noting that the delegate gave the Experience Certificate no weight, on the basis that document fraud was endemic in Pakistan, but was nevertheless satisfied that the appellant was employed as a teacher at the school.

Failure to mention the threatening letters in the arrival interview

98    The IAA said (at [35]) that it was “significant” that in his arrival interview the appellant made no mention of any threats to the school at which he claimed to work. This too provides only slight support for the finding that he was lying about having been a teacher at the school.

99    There is a distinction between the appellant’s claim to have been a teacher at the school and his claim that the school received threatening letters. As the delegate found, the appellant had consistently claimed that he was a teacher at Oswa Public School in Agra. He made that claim in his arrival interview on 30 July 2013, he reiterated it in the Case Assessment Interview on 3 October 2013, he made it in his visa application and accompanying statutory declaration in April 2016, and he made it in his visa interview on 31 May 2016. The delegate found that he was able to provide detailed information about his employment when questioned in the interview. And it was not the case that the appellant’s claim to fear harm because he worked at the school was a recent invention. He made that claim at the Case Assessment interview on 3 October 2013, just over two months after his arrival interview and two and a half years before he applied for a visa.

100    A failure to refer to the threatening letters in the arrival interview does not contradict his claim to have been a teacher and to fear harm as a result, and provides only tangential support for a finding that he made the whole thing up.

Conclusion on materiality

101    An assessment of credibility is not undertaken in a linear fashion. Had the IAA not erroneously reasoned that the three inconsistencies or shortcomings to which I have referred provided a basis for the adverse credibility findings it made, it is possible that it would have reached a different view in relation to some of the other matters upon which it based those findings: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (VAAD) at [79] (Hill, Sundberg and Stone JJ). Disbelief of one matter might carry over to affect a decision-maker’s disbelief of another matter, and establishing that disbelief of a person’s credibility on one matter was erroneously based might convince a decision-maker of the need to revisit conclusions on other matters: NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [81] (Kirby J), cited with approval in VAAD at [79].

102    It is impossible to know whether the IAA would have nevertheless concluded that the appellant was lying when he claimed to have been a teacher at a school which received threatening letters if it had not engaged in the irrational and legally unreasonable reasoning I have found, but that is not the test. The question is whether the IAA’s erroneous reasoning deprived the appellant of the realistic possibility of a different outcome. I am satisfied that it did and thus the IAA’s errors were jurisdictional.

103    I respectfully consider that the primary judge erred in failing to appreciate that some of the identified inconsistencies or shortcomings were not capable of supporting the adverse credibility findings, and in concluding that the findings had an “ample foundation”.

104    For completeness, I do not though accept the appellant’s submission that it was illogical or legally unreasonable for the IAA to find it significant that the Experience Certificate was inconsistent with the appellant’s other evidence, and simultaneously find the Experience Certificate to be fraudulent.

105    There is some force in the appellant’s argument that it was illogical for the IAA to find the Experience Certificate to be a forgery, and then use the information contained in that forgery as a basis for a finding of inconsistency with the appellant’s other evidence. But I accept the Minister’s submission that the IAA had rationally probative grounds for its finding that the Experience Certificate was not genuine, which sat alongside the finding that information contained in the Experience Certificate was inconsistent with other evidence which the appellant had provided.

106    I accept that:

(a)    the IAA’s finding that the Experience Certificate was fabricated was not based simply on it containing information that was inconsistent with the other evidence provided by the appellant in respect of him being a teacher. It was also based on the fact that it did not state the name of the Principal who signed it, the period of the appellant’s employment, or that the appellant had acted as assistant principal, and also because of country information that document fraud is endemic in Pakistan; and

(b)    the IAA did not reject the appellant’s claim to have been a teacher at the school simply because it was inconsistent with the contents of the Experience Certificate. That finding was also based on the other matters upon which the IAA relied in making the adverse credibility findings.

107    I found little force in the appellant’s contention that it is illogical to suggest that the appellant would have gone to the trouble of fabricating the Experience Certificate to support his visa application, if the document actually did not do so. It was open to the IAA to decide that the Experience Certificate was a poorly forgery.

108    Thus there was a logical and rational basis for the IAA to simultaneously make the findings that the Experience Certificate was inconsistent with the appellant’s other evidence and also that the Experience Certificate was fraudulent.

Ground 3 – Failure to apply the appropriate statutory test

109    In ground three of the appeal, the appellant alleges as follows:

The Judge below erred by not finding that the IAA erred or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to apply the appropriate statutory test.

Particulars

The IAA failed to apply the appropriate predictive test by placing substantial and disproportionate weight on its finding of an absence of past harm suffered by the applicant.

The appellant’s submissions

110    The appellant submits that the IAA failed to apply the appropriate predictive test in relation to whether there is a real chance the appellant will face serious harm on return to Pakistan by reason that he is a Pashtun Turi of Shia faith from the FATA. He contends that instead of deciding whether there is a real chance the appellant will face serious harm by making a prediction in that regard, the IAA erred by focusing on the fact that the appellant had not historically suffered any harm.

111    The appellant relies on the remarks of Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (S395/2002) at [72]-[77] where their Honours said (at [74]):

Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality.  If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country.  Yet absence of past persecution does not deny that there is a real chance of future persecution.

112    The thrust of the appellant’s argument is that the IAA treated the absence of evidence that the he had personally suffered serious harm in the past by reason that he is a Pashtun Turi of Shia faith from the FATA, as showing that he does not have a real chance of suffering serious harm in the future for those reasons. He does not contend that evidence of past harm is not relevant but submits that the weight the IAA gave to the absence of past harm was excessive, and that by focusing on the absence of historical harm the IAA did not undertake the appropriate predictive exercise focussed on the future risk of harm: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [33] (Kenny, Griffiths and Mortimer JJ) citing Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 391, 432; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 571-573.

113    The appellant accepts that the IAA acknowledged the relevance of the most recent country information, the DFAT Report dated 1 September 2017, which post-dated the appellant’s departure from Pakistan, and that the IAA relied on the DFAT Report at various points in the decision. He argues, however, that the risk of future harm was apparent from the DFAT report and the IAA must have misdirected itself as to the application of the test for assessing whether the appellant faced a real chance of suffering serious harm in the reasonably foreseeable future. He contends that the IAA failed to turn its mind to the dangers that the appellant would face because he is a Pashtun Turi of Shia faith from the FATA and failed to take into account that two of the appellants’ cousins were killed by suicide bombings perpetrated by the Taliban and country information which indicated a moderate level of sectarian violence.

114    The appellant also advanced various submissions attacking the primary judge’s reasons for dismissing this ground. Having regard to our conclusion that this ground should be dismissed it is unnecessary to recount those submissions.

Consideration

115    To meet the definition of “refugee” in s 5H(1) of the Act the appellant was required to show that owing to a “well-founded fear of persecution” he is unable or unwilling to avail himself of the protection of Pakistan. Under s 5J of the Act he has a well-founded fear of persecution if:

(a)    he fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

(b)    there is a real chance that if returned to Pakistan he would be persecuted for one or more of those reasons; and

(c)    the real chance of persecution relates to all areas of Pakistan.

116    These definitions were introduced into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), but the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48; (2019) 269 FCR 184 (AON15) (Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.

117    There is no dispute between the parties in relation to the authorities. For present purposes it suffices to note that in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Mason CJ said at 389:

… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.

Dawson J said at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”.

Toohey J said at 407:

The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied.

McHugh J said at 429:

…a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur…an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be…persecuted.

118    In AKH16 the Full Court said (at [48]-[49]):

…the assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future: see eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ).

As Mortimer J stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]:

The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

119    With that in mind, it is necessary to consider in the present case:

(a)    how the IAA went about the task of determining whether or not the appellant has a well-founded fear of persecution, including the approach it took to deciding whether he faces a real chance of suffering serious harm in the reasonably foreseeable future by reason that he is a Pashtun Turi of Shia faith from the FATA; and

(b)    whether the IAA’s approach reveals jurisdictional error.

120    The appellant’s submission that the IAA failed to engage in the appropriate predictive exercise boils down to four contentions:

(a)    the IAA’s finding that it was not satisfied that the appellant faces a real chance of serious harm was made on the basis of its rejection of his claim to have been a teacher at a school which received threatening letters, and not on the basis of his primary claim that he is Pashtun Turi of Shia faith from the FATA;

(b)    the IAA failed to address the appellant’s claim that his cousins were killed in bomb blasts in 2013 and 2015;

(c)    the IAA found that there was moderate level of sectarian violence in the Kurram Agency, which was enough to show that the appellant faces a real chance of suffering serious harm; and

(d)    the IAA’s reasons at [52] show that it gave disproportionate weight to the absence of past harm, rather than assessing the risk of future harm the appellant faced.

121    I do not accept these contentions.

122    First, there is no basis for the appellant’s contention that the IAA decided that there was not a real chance that the appellant would face serious harm only by reference to his claim that he is a teacher from a school which received threatening letters;

(a)    the IAA addressed the appellant’s claim that he faces a real chance of persecution because he was a teacher under the heading “Teacher at a school” (at [29]-[41]). It concluded (at [41]) that it was not satisfied that there is a real chance that the appellant will be harmed now or in the reasonably foreseeable future by the Taliban or other anti-Shia militants because he was a teacher; and

(b)    then, under the heading “Shia and Pashtun Turi from FATA” (at [42]-[52]) the IAA addressed the appellant’s claim that he faces a real chance of serious harm by reason of his being a Pashtun Turi of Shia faith from the FATA. It concluded (at [52]) that there was not a real chance that the appellant will suffer serious harm for those reasons now or in the reasonably foreseeable future if he returns to Pakistan.

123    Second, I do not accept that the IAA failed to address the appellant’s claim that his two cousins were killed in bomb blasts in 2013 and 2015. The IAA expressly referred to these deaths (at [43]) in setting out the basis for the appellant’s claim that he will be targeted and harmed because he is a Pashtun Turi of Shia faith from the Upper Kurram region. The IAA did not specifically refer to the bomb blasts when deciding that it was not satisfied that the appellant faces a real chance of serious harm for those reasons now or in the reasonably foreseeable future, but the absence of any further reference to those claims does not in my view show jurisdictional error.

124    Amongst other things, this is so because:

(a)    the appellant’s evidence did not indicate that his family were specifically targeted, and so it can be inferred that their deaths were part of the “moderate risk of sectarian violence” in Parachinar disclosed by the country information upon which the IAA relied. The IAA relied on country information in relation to suicide bomb attacks over the years covering 2013 and 2015, and it was open to the IAA to treat the deaths of the appellant’s cousins as falling within the anti-Shia sectarian violence described in those reports. It was not necessary for the IAA to refer specifically to those two deaths; and

(b)    the appellant claimed that his cousins were killed in suicide bomb attacks in 2013 and 2015, the IAA decision was made in January 2018, and the country information showed that the security situation in Parachinar in the Upper Kurram region changed over time. Based upon country information at that time the delegate concluded in July 2016 that there had only been one sectarian attack recorded in Parachinar, Upper Kurram, in 2015 which indicated that military action by the Pakistan government has had an impact on the ability of insurgents to target Turi Shias. The delegate considered that sectarian attacks against Turi Shias in Upper Kurram are “infrequent and remote and not systematic”. But in the first half of 2017, as the appellant’s fourth submission noted, there had been a deterioration in the security situation in the Kurram Agency, with three large-scale attacks against Turi Shias in Parachinar occurring in the first six months of that year. In light of the changing security situation it was open to the IAA to treat the attacks in 2013 and 2015 as being of limited significance for the necessary predictive exercise.

125    Third, it is correct that the IAA said that “DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shia faith.” However, contrary to the appellant’s submissions, this does not show that the IAA fell into jurisdictional error in finding (at [52]) that there is not a real chance that he will suffer serious harm in the reasonably foreseeable future because he is a Pashtun Turi of Shia faith from the FATA Agency. Nor does it show that the IAA misapplied the required predictive test.

126    Along with noting that the DFAT Report said that Turis in Parachinar face a moderate risk of sectarian violence, the IAA also noted that DFAT assessed that:

(a)    Shias in the FATA “typically face a low risk of sectarian violence overall, in the context of a moderate level of militant and criminal violence across the region” (at [48]);

(b)    while “the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than other parts of the FATA… [p]rior to an attack in January 2017, Parachinar had experienced relative calm” (at [48]);

(c)    government anti-terrorism activities had “led to a significant decrease in the number and severity of attacks on Turis in 2015 and 2016” (at [49]); and

(d)    “government and military operations in Pakistan have disrupted the activities of militant groups and thousands of militants have been killed. The frequency of sectarian attacks has reduced significantly in recent years” (at [50]).

127    The IAA also noted that the DFAT Report said (at [49]) that “three large-scale attacks targeting Turis in Parachinar occurred during the first six months of 2017”. That was a matter pointing away from concluding that the frequency of sectarian attacks had reduced significantly.

128    Then, the IAA concluded (at [52]):

Although there were three serious incidents in Pakistan in the first half of 2017 as reported in the DFAT report in September 2017, the information before me is that sectarian violence has declined significantly in Pakistan and that the government and military operations in Pakistan have disrupted the activities of militant groups and thousands of militants have been killed. In light of the country information and the absence of credible evidence that the applicant has ever been harmed or targeted in Pakistan for being a Turi, a Pashtun, Shia, for participating once in a protest, or that he was from the FATA, I find that there is not a real chance that the applicant will face serious harm for these reasons, now or in the reasonably foreseeable future, if he returns to Pakistan. I have considered his claims individually and cumulatively and do not accept that there is a real chance that the applicant will suffer harm if he returns to Pakistan.

129    A failure by a decision-maker to refer to particular events set out in country information may indicate that he or she overlooked critical matters capable of affecting the outcome of a decision. But that is not the position in the present case. Here, the critical information was that there had been three major bomb attacks in Parachinar in the first half of 2017. The IAA expressly referred to the attacks and decided that, notwithstanding the deterioration in the security situation that they represented, there was not a real chance that the appellant will face serious harm in the reasonably foreseeable future because he is Pashtun Turi of Shia faith from the FATA. Having regard to the contrary information, it was open to the IAA to find that military operations in Pakistan had disrupted the activities of militant groups and that sectarian violence had declined significantly such that, notwithstanding the three serious incidents in Parachinar in the first half of 2017, the appellant did not face a real chance of serious harm. Essentially, that amounted to a conclusion that the deterioration in the security situation was likely to be a “blip” in the number of attacks, and a continuation of such attacks was unlikely.

130    That is a conclusion about which reasonable minds may differ, but the Court has no power to engage in merits review. The IAA’s finding does not evince any failure to consider the appellant’s claim, or the evidence, and it does not show that it failed to assess the future risk of harm predictively rather than by reference only to the evidence that the appellant had not suffered any serious harm for such reasons in the past.

131    Fourth, the same passages show that there is little force in the appellant’s contention that rather than engaging in the appropriate predictive exercise the IAA placed disproportionate weight on the evidence that the appellant had not suffered any serious harm in the past.

132    In the penultimate sentence of [52] the IAA concluded that there was a not a real chance that the appellant will face serious harm now or in the reasonably foreseeable future because he is Pashtun Turi of Shia faith from the FATA, doing so; (a) in light of the country information; and (b) because he had not suffered harm for those reasons in the past. The reference to country information could only have been a reference to the DFAT’s assessment regarding the risk of serious harm faced by Pashtun Turis of Shia faith from the FATA. That assessment was predictive or forward-looking, albeit based in part upon the view DFAT reached in relation to the significance of past occurrences of sectarian violence. Of course, it will often be of assistance to look to past such occurrences when attempting to predict the likelihood of future similar occurrences: S395/2002 (at [74]).

133    Having regard to the IAA’s reference to and reliance on the DFAT Report, on a fair reading of its reasons I am not persuaded that the finding that there was not a real chance the appellant will face serious harm for the relevant reasons in the reasonably foreseeable future was based only or disproportionately in the fact that the appellant had not suffered serious harm for those reasons in the past. In our respectful view the primary judge was correct in dismissing this ground below.

Ground 2

134    In ground two of the appeal, the appellant alleges as follows:

The Judge below erred in failing to provide adequate reasons for the dismissal of the appellant’s application for judicial review. The reasons do not address fundamental aspects of the appellant’s case such as:

(a)    the existence of superior court authority in support of ground 1 of the appellant’s application for judicial review, including:

(i)    Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611;

(ii)    DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; and

(iii)    CWR16 v Minister for Immigration and Border Protection [2018] FCA 859;

(b)    the particulars to ground 3 of the appellant’s application for judicial review.

135    The particulars to ground 3 of the application below were as follows:

(a)    The Authority had determined that allegations of serious criminal conduct against the applicant were not relevant to its task or decision, and determined not to have regard to that information (at [23])

(b)    A significant matter which bore upon the Authority’s rejection of the applicants claim of a risk of harm from the Pakistani Authorities, was whether the applicant was suspected of criminal conduct (at [60] and [61]).

(c)    In making its determination in that regard, having ruled out its relevance, the Authority failed to consider the allegations of serious criminal conduct against the applicant.

(d)    In the premises, the Authority failed to take into account a relevant consideration or otherwise failed to carry out its statutory task.

136    Ground 2 of the appeal was given little attention by the appellant, and he described grounds 1 and 3 as the primary grounds.

137    Ground 2(a) is effectively a restatement of the basis of ground 1; the cases cited relate to the consideration of irrationality and legal unreasonableness in the context of credibility findings and it does not raise an independent challenge to the decision of the IAA. While I do not accept the appellant’s contention that the primary judge failed to provide adequate reasons, it is unnecessary to address this ground as it is disposed of by the reasons in respect of ground 1.

138    Moving to ground 2(b), this ground must also be rejected. It is based in the fact that anonymous allegations were before the IAA to the effect that the appellant had admitted to having killed members of the Taliban while he was in Pakistan, that he was familiar with weapons, and that he hated the Pakistan Intelligence Agency. The appellant completely rejected those allegations. The IAA did not accept the allegations and said (at [23]) that the allegations by an unknown person were not relevant to the decision and that it did not have regard to the information.

139    Before the primary judge the appellant made only brief, and in my view unclear, submissions in relation to this ground. The submissions sought to tie the anonymous allegation of past criminal conduct in with the fact that through administrative error (the data breach) the appellant’s personal details had been made available on the Department’s website for some days in February 2014. The submissions did not make clear how the anonymous allegation of past criminal conduct related to the data breach. The anonymous allegation were put to the appellant and he did not at any point assert that the existence of the allegations increased the risk that he would suffer serious harm if returned to Pakistan. It is not open to him to claim on appeal that the IAA fell into error by treating the anonymous allegation in a way other than he sought below.

140    The IAA expressly dealt with the question of whether there is a real chance the appellant will suffer serious harm on return to Pakistan as a failed asylum seeker and had regard to the data breach (at [53]-[61]). It concluded that it was not satisfied that there is a real chance the appellant will face serious harm from the Pakistani authorities now or in the reasonably foreseeable future because he would return as a failed asylum seeker.

141    In circumstances where:

(a)    the submissions made by the appellant below were limited and unclear;

(b)    the IAA expressly rejected the appellant’s claim that by reason of his being a returned failed asylum seeker and having regard to the data breach there was a real chance he will suffer harm at the hands of Pakistani authorities;

(c)    the appellant did not claim that the existence of the anonymous allegations increased the chance that he would suffer serious harm;

(d)    the IAA did not accept the anonymous allegations; and

(e)    the IAA did not have regard to the anonymous allegations in deciding that the appellant did not face a real chance of suffering serious harm;

the primary judge gave only short attention to this aspect of the appellant’s claim. In my view the reasons the primary judge gave were adequate in the circumstances. Her Honour addressed the relevant authorities and concluded that jurisdictional error was not established.

142    This ground of appeal should be dismissed.

Conclusion

143    For these reasons it is appropriate to allow the appeal and to set aside the order the primary judge. In lieu thereof it is appropriate to order that the decision of the IAA be set aside, the appellant’s application for a visa be remitted to the IAA, differently constituted, for redetermination according to law, and that the Minister pay the appellant’s costs of the appeal and the application below.

Associate:

Dated:    9 November 2020

REASONS FOR JUDGMENT

O’CALLAGHAN J:

144    I agree with Snaden J.

Associate:    

Dated:    9 November 2020

REASONS FOR JUDGMENT

SNADEN J:

145    I have had the privilege of reading a draft of Murphy’s J reasons for judgment. I gratefully adopt his Honour’s thorough recitation of the relevant factual background, the initial proceeding before the Federal Circuit Court and the submissions that were advanced in the appeal before this court. Although I agree with most of his Honour’s conclusions, I regret that I am unable to agree with the orders that he proposes for the resolution of the appeal. For the reasons that follow, I would dismiss it and make the usual order as to costs.

146    In light of his Honour’s remarks, it is unnecessary that I should embark upon any further introductory comments and I shall, instead, move immediately to the conclusions that I have reached on the appeal. For ease of reference, I shall employ the same terminology that Murphy J has deployed throughout his reasons for judgment.

Ground One: Legal unreasonableness

147    The terms in which the appellant’s first appeal ground were stated are reproduced in the reasons for judgment of Murphy J (above, [55]). Again, I gratefully adopt his Honour’s summary of that ground (above, [56]-[59]).

148    In conducting its review, the IAA rejected the appellant’s contention that he had worked as a teacher at a school that had received threatening letters from religious extremists. Murphy J’s reasons replicate in full the IAA’s reasoning in that regard (above, [31]) and it is not necessary to repeat it. In part because it rejected the appellant’s account (and, indeed, concluded that the appellant was not truthful insofar as he had said) that he had worked as a teacher at a school that had been the subject of extremist threats, the IAA was not satisfied that the appellant satisfied the criteria for which s 36 of the Act provides; and, therefore, was not entitled to the protection visa for which he had applied.

149    The appellant’s contentions focused upon the IAA’s finding that he had not worked as a teacher at a school that had received threatening letters (and that he had not been truthful when alleging as much). Before the primary judge and on appeal in this court, the appellant contended that that finding was reflective of jurisdictional error because it was the product of extreme illogicality or irrationality. As Murphy J traces in his reasons for judgment, that submission was multi-dimensional. The appellant submitted that:

(1)    it was illogical (to a degree that bespeaks jurisdictional error) for the IAA simultaneously to find that the Experience Certificate was not genuine and that it was inconsistent with other aspects of the appellant’s evidence;

(2)    it was irrational (again, to a point reflective of jurisdictional error) for the IAA to reach the conclusion that it reached on the strength of evidential inconsistencies that were minor or explicable;

(3)    the finding was based on reasoning that was itself illogical or irrational (insofar as it proceeded upon errors of fact and/or assumptions that were not sufficiently substantiated by the evidence); and that

(4)    given that the finding was inconsistent with what the delegate had previously found, it was unreasonable for the IAA to have made that finding without first inviting him to give evidence before it.

150    Before considering each of those submissions, I should record—again with considerable gratitude—my agreement with the matters of relevant principle to which Murphy J adverts (above, [71]). It is well accepted that “[a]n irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by [a decision maker] that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error”: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, 221 [56] (Wigney J), recently endorsed in CRU18 v Minister for Home Affairs [2020] FCAFC 129, [36] (Wigney, Jackson and Snaden JJ). For the reasons that follow, I do not accept that that threshold has been crossed in the present matter in any of the ways that the appellant contended.

Illogicality in simultaneous findings

151    The appellant submitted that it was illogical—to a point sufficient to impugn its decision as a product of jurisdictional error—for the IAA simultaneously to find that the Experience Certificate had been forged and was inconsistent with other evidence.

152    I reject that contention and, with respect, agree with Murphy’s J reasoning (above, [105]-[108]). It was open to the IAA to conclude that the Experience Certificate was a poorly executed forgery, reflective of an inability on the appellant’s part to recite a consistent narrative in support of his protection visa application.

Minor or explicable inconsistencies

153    The IAA rejected the appellant’s claim to have taught at a school that had received threatening letters in part because of inconsistencies or anomalies that it identified in the evidence that he gave. Again, those inconsistencies and anomalies are set out in detail in the reasons for judgment of Murphy J. For present purposes, it suffices to note them only in summary form, to wit:

(1)    the appellant identified more than one date from which he alleged that he began his work as a teacher;

(2)    the appellant did not consistently recite the subjects that he claimed to have taught;

(3)    the appellant claimed to have acted as a vice (or “second”) principal, despite not having any formal teaching qualifications;

(4)    the appellant failed to mention at his arrival interview that the school at which he claimed to have taught had been the subject of the alleged threats;

(5)    the appellant did not consistently identify by name or address the school at which he claimed to have taught.

154    The existence of those inconsistencies within the body of material that was before the IAA is not in doubt. The appellant’s contention is that they were, individually and in combination, minor or explicable; and, in any event, were insufficient to ground the IAA’s rejection of the appellant’s narrative (or, more specifically, his claim that he had worked as a teacher at a school that had received threatening letters).

155    With respect to those who would hold otherwise, I do not accept that any of those anomalies was so minor or explicable as to be incapable of rationally or logically informing the conclusion that the IAA ultimately drew—namely, that the appellant had not worked as a teacher at a school that had received threatening letters. The existence of each individually, and of all in combination, was logically probative of that issue. Each was (and all, together, were) capable of informing the IAA’s assessment as to whether or not the appellant’s claim should be believed.

156    The appellant complained that the IAA did not “expressly assess” what significance should attach to the existence of each of the inconsistencies or anomalies that contributed to its ultimate finding. By that failure, it was suggested that the IAA had been drawn into a species of error to which this court referred in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, 93 [28] (Kenny, Griffiths and Mortimer JJ). There, it was said that:

…even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

157    Again with respect, I do not accept that the IAA should be understood not to have turned its mind to any of the considerations listed in the passage above. The basis or bases upon which this court might infer such failures were not explored beyond assertion. The appellant’s contention that the IAA did not “expressly assess”—that is to say, record in its written reasons any assessment of—the significance that it attached to the existence of the relevant evidential inconsistencies may readily be accepted. I am unable, however, to see how that alone might suffice as a basis upon which this court might, on appeal, draw the inferences that the appellant would have us draw. To the contrary, the IAA appears very much to have turned its mind to whether or not the presence of the relevant evidential anomalies was significant enough to warrant its rejection of the appellant’s narrative. Reasonable minds might differ as to whether they did; but I am unable to accept that the IAA might be said, in this case, to have relevantly misunderstood the nature of its task, much less performed it unreasonably or unfairly, or otherwise in a way unauthorised by the Act.

158    The evidential anomalies upon which the IAA relied in reaching its conclusion that the appellant’s narrative was untruthful were logically and rationally capable of informing that finding. Respectfully, I do not accept that any such reliance was beyond what the IAA was authorised to consider, or was otherwise such that its decision might be impugned as the product of jurisdictional error.

Illogical reasoning founded upon unwarranted assumptions

159    The appellant contended that the IAA’s finding that he had not worked as a teacher at a school that had received threatening letters (and that his narrative to that end was not truthful) bespoke jurisdictional error insofar as it rested irrationally or illogically upon factual errors or unwarranted assumptions. Relevantly, for present purposes, the appellant developed two contentions upon which attention might presently focus. It was said that the IAA erred insofar as it based its conclusion upon:

(1)    evidence of the appellant’s limited education; and

(2)    the inconsistent evidence that was led about where the school at which the appellant had claimed to have worked was located.

It is convenient to address each of those contentions in turn.

The appellant’s year-10 education

160    The nature of the submission that was put is, with respect, well summarised in the reasons for judgment of Murphy J (above, [73]). The appellant’s criticism was that, by relying upon his limited education as a basis for rejecting his claim to have served as a teacher, the IAA drew and relied upon unwarranted assumptions about the qualifications typically possessed by those who serve as teachers in small schools in rural Pakistan.

161    Again with respect to those who think otherwise, I do not accept that it was relevantly illogical or irrational for the IAA to reason that the appellant’s claim to have served as a teacher was unsound (and, more to the point, ripe for rejection as untrue) in part because the appellant was not educated beyond a year-10 high school level. The significance of the appellant’s education is apparent enough: it tended to suggest that he did not possess any teaching qualifications. That, evidently enough, was a reality that sat uneasily with his assertion that he had taught multiple subjects and had served, on occasion, in the role of vice (or “second”) principal.

162    To observe as much is not to foreclose upon the possibility that a different decision maker might have concluded, validly and in the face of the same evidence, that the appellant had served as a teacher as he had alleged. Plainly enough, the IAA’s reasoning proceeded upon an assumption that somebody who claimed to have taught multiple subjects at a school and to have served as its vice (or “second”) principal would possess qualifications beyond a year-10 high school education. That assumption might well have been wrong (as might have been any conclusion that was drawn in consequence of it); but it cannot be impugned as illogical or irrational to a point reflective of jurisdictional error. The link that the IAA drew between the appellant’s lack of educational qualifications and the truth of his narrative was not so irrational or illogical as to put its conclusion—namely, that the appellant had not served as a teacher (and was lying when he said that he had)—beyond what it had jurisdiction to conclude.

The location of the school

163    The IAA was moved to reject the appellant’s account of having worked as a teacher at a school that had received threatening letters in part because, so it concluded, there was inconsistent evidence before it about where the school was located. The appellant’s evidence was that he had worked at the “Oswa Public School/ Tuition Centre” in Agra. The Experience Certificate, however, described the school at which he had claimed to have worked as USWA Community Model School UCMS in Sultan Kurram Agency.

164    As Murphy J points out in his reasons for judgment, Agra is a town located in what was, until relatively recently, known as the Kurram Agency within the former Federally Administered Tribal Areas (now Pakistan’s Khyber Pakhtunkhwa province). The appellant submits that, insofar as the IAA acted upon any perceived inconsistency in the evidence about the school’s location, it acted irrationally or illogically in a sense sufficient to warrant a finding of jurisdictional error.

165    The appellant’s complaint was that the IAA proceeded upon an inconsistency that was wrongly perceived: that his narrative was rejected (on the basis that it was fabricated, no less) because, or partly because, of evidence that was wrongly said to be inconsistent. It was, he contended, permissible for his evidence to have described the location of his school both as “Agra” and as “Sultan Kurram Agency”, in the same way that the Melbourne Cricket Ground might correctly be described as being in “Melbourne” and “Victoria”. There was, he said, no relevant inconsistency; and to act as though there were was relevantly illogical or irrational.

166    I am unpersuaded that the IAA’s analysis betrays any extreme illogicality or irrationality of the kind that the appellant requires. The evidence about the location of the school at which the appellant claimed to have taught was inconsistent in the sense that one part of it said one thing and another said something else. In a geographic sense, the evidence might not fairly be thought to have been inconsistent (although I note, on that score, that the Experience Certificate referred to the “Sultan Kurrum Agency” rather than merely the “Kurram Agency”, a distinction that might or might not be material). Regardless, the evidence was inconsistent in the sense that it did not consistently identify where it was that the school was located.

167    The full scope of the IAA’s findings on this issue must also be borne in mind. They were contained within a single paragraph that it is convenient to replicate:

34.     The applicant called the school, Oswa Public School – Tuition Centre, but the letter states that the school is Uswa Community Model School UCMS. It could be a translation issue that the school is named either Oswa or Uswa. However, I am not satisfied that a translation issue explains the difference in the full name of the school. The applicant called it Oswa Public School – Tuition Centre at the arrival interview. However, in the letter purportedly from the school, the school is named as Uswa Community Model School UCMS. As well, the applicant stated that the school is located in Agra, whereas the letter purportedly from the school states that it is in Sultan Kurram Agency. It is of significant concern that the name of the school referred to by the applicant and the location are different from the name of the school and the location stated in the letter dated 10 May 2013.

168    It is apparent that the IAA proceeded upon its “significant concern” that the name of the school and its location were not consistently recited throughout the evidence. Whether that want of consistency might be sufficient to sustain equivalent concerns in the minds of other decision makers might be left to speculation: the point presently (again, with respect to those who might conclude otherwise) is that it cannot be impugned as an irrelevance upon the reliance of which jurisdictional error can be understood to have transpired.

Failure to hear from the appellant

169    The appellant next complains that, having reached (or perhaps even contemplated reaching) a conclusion that was at odds with what the delegate had concluded—namely, that the appellant had not taught at a school that had received threatening letters and that his claim to that end was untruthful—it was relevantly irrational or illogical for the IAA not to have invited him to give evidence before it decided his application.

170    Although not abandoned, that complaint was not developed beyond assertion. It is easily enough addressed. The process of automatic review for which part 7AA of the Act provides allows for the procurement and consideration of “new information” only in limited circumstances: the Act, ss 473DC and 473DD. There is no doubt that, in exercising (or not exercising) the discretions reposed in it to that end, the IAA must refrain from acting unreasonably, irrationally or illogically: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (“M174”), 227 [21], 235-236 [49], 242 [71] (Gageler, Keane and Nettle JJ), 245 [86] (Gordon J), 249 [97] (Edelman J); DPI17 v Minister for Home Affairs (2019) 269 FCR 134 (“DPI17”), 147 [36] (Griffiths and Steward JJ), 160 [91] (Mortimer J). There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretions might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [42] (Allsop CJ, Robertson and Mortimer JJ).

171    In DPI17, this court considered the elements that inform the boundaries of legal unreasonableness insofar as concerns the IAA’s approach to the exercise of its powers under part 7AA of the Act. Griffiths and Steward JJ, referring to the plurality judgment in M174, listed (at 147 [35]) six relevant propositions, being that:

(1)     as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);

(2)     the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);

(3)     the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);

(4)     the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);

(5)     although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and

(6)     s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).

172    Their Honours then (at 148 [37]) added a further four observations on that theme:

First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.

173    The issue, in the present case, is whether the IAA’s failure to invite input from the appellant before it proceeded to reject his narrative was beyond what the IAA was free to decide: in other words, whether the only course logically or rationally available to the IAA in the circumstances was to get and/or consider new information from him. The task, as Thawley J put it in CCQ17 (at [51]), is to:

…evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

174    I do not consider that the impugned failure here was any of those things. The IAA was obliged to consider the appellant’s application for a protection visa afresh and come to its own view as to whether or not the delegate’s decision should be affirmed on its merits. If it felt that the material required factual findings or conclusions that differed from those made at first instance, it was obliged to give them voice. It was under no statutory obligation to give the appellant notice that it was inclined to overturn any issue that the delegate decided in his favour; nor to get, request or accept any new information (whether at the appellant’s request or otherwise). It was obliged to discharge its function in a manner consistent with the statutory objective of providing a mechanism of limited review that (amongst other things) was efficient and quick: the Act, s 473FA(1).

175    In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (Reeves, Robertson and Rangiah JJ), this court observed (at 569 [72]):

In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

176    There will, of course, be cases where the IAA does have to at least consider whether it should exercise the discretion to get new information for which s 473DC of the Act provides; and where its failure to do so might vitiate its review for reasons of legal unreasonableness. DPI17 is a good example. But such a requirement does not arise merely because the IAA is minded to form a view about an issue that diverges from what the delegate decided.

177    The failure of the IAA in this case to invite the appellant to give additional evidence is not reflective of jurisdictional error.

Conclusions

178    Save insofar as is set out above, I otherwise respectfully agree with the conclusions identified by Murphy J in respect of the appellant’s first ground of appeal, and with the reasons that his Honour gives for those conclusions. In my view, none of the various ways in which the appellant’s first appeal ground was prosecuted is made out.

Ground 2: inadequacy of the Federal Circuit Court’s reasons

179    As with the first, the appellant’s second ground of appeal is replicated in the reasons for judgment of Murphy J (above, [134]-[135]). I respectfully agree with the conclusions that his Honour expresses in connection with that ground, and also with the reasons expressed in support of those conclusions.

180    Having come to a different view than Murphy J about the first appeal ground, I should say something about ground 2(a). The appellant’s complaint is that the learned primary judge failed to refer, in her reasons, to certain authorities that, he claims, supported the part of the case that he advanced below that is now the subject of his first ground of appeal. That failure is said to highlight an inadequacy inherent in her Honour’s reasons for determining the appellant’s claim in the way that she did; and that inadequacy is said constitute appellable error.

181    The fact that the primary judge did not expressly refer in her reasons for judgment to particular authorities that were advanced on the appellant’s behalf is not reason enough to describe those reasons as inadequate. On the contrary, as the reasons for judgment of Murphy J make clear, the primary judge’s reasons set out why it was that her Honour rejected the appellant’s claim that the IAA fell into jurisdictional error insofar as it concluded that his evidence that he had worked as a teacher at a school that had received threatening letters was untruthful. The basis upon which her Honour formed that view is sufficiently clear from her reasons.

182    The appellant’s second appeal ground is not made out.

Ground 3: failure to apply the appropriate statutory test

183    I respectfully agree with the conclusions that Murphy J states in respect of the appellant’s third ground of appeal, as well as the reasons that his Honour gives in support of them.

Conclusion

184    None of the appellant’s appeal grounds is made out. The appeal should be dismissed with the usual order as to costs.

Associate:

Dated:    9 November 2020