FEDERAL COURT OF AUSTRALIA

Bakhtyar v Minister for Immigration & Multicultural Affairs [2001] FCA 947

IMMIGRATION -  review of decision of Refugee Review Tribunal – no evidence ground – expression of minimum rationality principle – mere illogicality not a ground of review

Migration Act 1958 (Cth) s 476

Airo-Farulla, Rationality and Judicial Review of  Administrative Action in “An Australian Retrospective” Vol 24, No 3, 2000 MULR 543-575

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 cited

Attorney-General (NSW) v Quinn (1990) 170 CLR 1 cited

Minister for Immigration and Multicultural Affairs v Al Miahi [2001] FCA 744 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Roads Corporation v Dacakis (1995) 2 VR 508 cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 cited

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 cited

Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 cited

Jegatheeswaran v Minister for Immigration and Multicultural Affairs [2001] FCA 865 cited

ABDUL HANAN BAKHTYAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W47 of 2001

FRENCH J

19 JULY 2001

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The Applicant pay the Respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     The applicant, a single man, was born in Kabul, Afghanistan in 1977.  He arrived in Australia on a boat from Indonesia on 5 January 2000.  His entry into Australia was not authorised by law.  On 2 May 2000, he applied for a protection visa.  That application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 11 July 2000.  On 19 July 2000, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.  Hearings were conducted by the Tribunal on 13 September and 15 December 2000 and on 15 January 2001 the Tribunal affirmed the delegate’s decision not to grant a protection visa.  The applicant filed an application in the Federal Court seeking an order for review of the Tribunal’s decision on 21 February 2001.

Factual Background

2                     The applicant summarised his claims in a statement in support of his original application for a protection visa on 2 May 2000.  He said his father had been a tank commander in the military, fighting on behalf of the Najibulla Communist government.  He  was 15 years old when his father was killed in action in Perchakhi during the Taliban led rebellion. 

3                     He and his family escaped from Kabul to Kandahar at the time of the revolution.  His mother taught adult female students at a private college.  She taught languages including Dari Pashto and English.  However, she was told to close the place down after the Taliban came to Kandahar as they would not permit women to study.  She taught for a few days after being warned by Taliban who then came back and took her away from the college.  She was kept for one month in a women’s prison.  It was necessary to pay 10,000 Kaldar, Pakistani currency, to the Taliban to secure her release.  She told the applicant that while she was in prison, women there questioned her about why she had taught girls.  She was beaten and slapped.  She was told that her husband had been a communist.  After her release, she stopped teaching. 

4                     Difficulties arose within the applicant’s extended family over the division of his grandfather’s estate.  He and his brother asked their paternal uncles, Nourullah and Abdullah, to provide them with a share of the family property of their grandfather. His father had been entitled to one half and his uncles to the other half.  The uncles hated the applicant’s family because his mother was a Shia and his father had been a communist.  The father’s family was Sunni.  The uncles would not provide the applicant’s family with its share of the family property.  The applicant’s brother stood up to them.  Because of this the uncles, who had links to the Taliban, looked for an excuse to create trouble for them.

5                     On two occasions the applicant was harassed by Taliban in Jadah Kandahar.  They would stop and harass people in the street.  People had been killed by the Taliban, beating them in the street and at their headquarters.  The applicant said that he was harassed at the shop where he repaired motor cycles at different times on about six or seven occasions.  Both his brother and he were bashed outside his shop and taken to Taliban headquarters for trivial matters, such as not offering prayers at the appropriate time and for not growing beards.  They used not to go to the Sunni Mosque, but to another place of worship, Imam Bargah.  On two of these occasions, according to the applicant, he was detained for a week and held at Taliban headquarters.  On other occasions he was held for one night or a couple of nights.

6                     About five and a half months before he left Afghanistan the Taliban came to the applicant’s  house and searched it.  They found some old documents of his father’s and took his brother away.  He was not home at the time.  He was in Herat  getting old motor cycles for repair and trade.  When he returned three weeks later his mother told him what had happened.  She had been unable to locate his brother.  At the time that he left Afghanistan, they had not heard from him again.  The applicant stayed at home for the next five months until he left for good.  The home was visited by the Taliban during that time but he hid in a basement, the entry to which was in the floor and was concealed.  In this way he evaded being taken by the Taliban himself.  A maternal uncle sold some of the family jewellery.  The applicant was given $5,000 by his uncle who told him to give $2,500 to an agent in Quetta and $1,500 for use in Bali.

7                     The applicant travelled from Kandahar to Buldak in a vehicle for about forty-five minutes with his uncle and three other Pashtun people.  He had grown his beard and was wearing a turban.  The vehicle stopped at Pule Arghasan and from there he walked with his uncle for about eight hours until they reached Chaman.  There he was introduced to an Hazara man and he and his uncle parted.  He stayed in Chaman for about two nights and then went to Quetta city where he stayed for a month.  He paid the Hazara man $2,500.  He was told he would be provided with a Pakistani passport which would get him to Indonesia.  He was later told, however, that the visa which was going to be used to enter Indonesia on that passport had expired.  A few days later he was given an Afghani passport.  He was handed this at Karachi airport after he had stayed there for one month.  This passport had his photograph and the name “Sham Sullah”.   The applicant flew to Bali.  He was told by the agent to put $US100 in the passport when he approached Indonesian immigration.  He did this at Bali and the passport was stamped.  He had a telephone number and an address to go to.  He paid someone in Indonesia $US1,500 just before he got on the boat which took him to Australia. 

8                     The applicant said that he feared that if returned to Afghanistan he would be killed by the Taliban.  He thought they would kill him as they had already taken  his brother who was feared dead.  His father had been in the army under the Najibulla government.  They would mistreat him and kill him by reason of being a Shia and having a communist father.  The Taliban would believe that he was their enemy because of his father.

9                     The applicant was interviewed by a delegate of the Minister but the interview was taped and not transcribed.  It does not appear in the papers although a copy of the tape was given to the applicant.  A summary was prepared by the Tribunal member who dealt with the application for review of the delegate’s decision. 

10                  In the summary, it was said that the applicant understood that his father had been a Director of Personnel in the Tanks Division of the Military under the Najibulla government.  He had been in the army for a long time, having commenced military school after he completed his first six years at school.  He had died on 15 June 1992.  Late in 1992 the family moved to Kandahar where they had a property.  The delegate had asked the applicant how he came to be a Shia when his father had been a Sunni.  He replied that his father was a communist and had not followed a religion and so his religious training came from his mother.  She was a Shia and therefore so was he.  She was not allowed to have the family property in Kandahar because she was a Shia and it was for that reason that she had to work as a teacher.  An uncle had said that if he and his siblings left their mother, then they could have the property but they were too young to do this.

11                  The delegate discussed with the applicant the implications of his father’s involvement in the army under the communist regime.  The applicant said that the main Taliban officials had not known of his father’s involvement so there had not been problems in relation to employment for him and his brother.  But when the Taliban arrested his mother he said they did know of his father’s role.  The Taliban had been told by his mother that his father had a lower position than he actually had but they realised how senior he had been when they raided the applicant’s home and found documents.

12                  The applicant said at the interview with the delegate that he went to Imam Bargh, a place for Shias, which was behind the workshop which he and his brother managed and where they employed two other young Shias.  The Taliban would order people to go to the Mosque but he told them he would go to his own Mosque.  He told the delegate that he went there twice a day.  The delegate had asked him if that Mosque were still operating at the time he left Afghanistan but he said he did not know because he had been in hiding for five and a half months before he left.  In Kandahar the Taliban did not harass Shias very much but looked for excuses to do so.  Asked if the Taliban would know who went to the Shia Mosque, he said they would.  He said the Sunni Mosque was opposite his workshop and sometimes he saw Taliban nearby.  If they were about, he and his brother would go to a Shia market behind the workshop and have tea with friends in order to avoid being forced to go to the Mosque.  If the Taliban were not there at prayer time, the applicant and his brother would continue with their work.  At the end of the interview, the applicant said there were two big Mosques for Shias in Kandahar.  He went to one of these from two to four times each week.

13                  The applicant told the delegate he was detained twice for a week in the first part of 1998.  The first time was because his beard did not conform with what was required by the Taliban and he was not praying as they required.  He had said that he was young, about 20 at the time, and had not grown sufficient hair.  The Taliban said he was trimming his beard.  He told the delegate he cried a lot because if people cried they were released.  He had also gone on a hunger strike.  He told the delegate that the Taliban had raided his family home in April or May 1999 when he was in Herat.  That was when he returned home to find his brother had been taken.  The Taliban had come again afterwards.  He hid in the house in a concealed basement room.  He said that he thought the Taliban raided the house because his paternal uncles had  told them that his father had been a senior officer and that there were documents in the house.  They had taken the documents which they found, but not the father’s identity booklet which was in a separate place.

14                  Asked about documents which he had brought with him to Australia, the applicant referred to an identity booklet which he said was issued to him when he was 14 or 15.  It named his religion as Islam and his ethnicity as Pashtun. He had has also brought what he said was his father’s identity booklet which showed it was issued in 1989.  It gave his father’s occupation as retired army officer. The applicant said he had been told that this description had been put in later so that Mujahideen could be assured that his father was not in the army but had retired.  He understood the space to write in the bearer’s occupation had previously been empty.  It was pointed out to him that there was an entry marked 1994 which showed his father’s occupation as a businessman but the applicant said he did not know about that.

15                  A submission was received by the Tribunal from the applicant’s advisor on 8 September 2000.  With it there was a further statement from the applicant.  The applicant’s representative identified the main issue as that of his credibility arising because of notations made to his father’s identity card.  The applicant had provided his representatives with a letter dealing with those issues which was attached to their submission. They noted that the applicant claimed his father was killed by the Mujahideen in 1992 and that he was a military officer, whereas the notation on the identity card stated that in 1989 his father was a retired army officer.  The applicant’s explanation was that this notation was organised prior to his father’s death at the request of his grandfather who was afraid that the family land would be confiscated by the ruling faction because of his father’s military position.  After the notation was made the grandfather was able to take the identity card to Kandahar and settle the family’s position with the appropriate authorities and avoid any future usurping of the family land.  In further support of his explanation the applicant pointed out that in 1989 his father was 44 years of age, whereas the retirement age for military officers was 55.  During times of war this was extended and retirement of military officers was not granted.

16                  The representative’s submission also referred to a notation on the identity card which was dated 1994, two years after the father’s death, and described him as a businessman.  It was said that the card was in the possession of the father’s family from the time his grandfather needed it to settle their problem regarding their land.  He claimed that the card was used by one of his paternal uncles to trade and for dealing with authorities.  It was probable that the notation was organised by the uncle.  He did not come into possession of the card until his brother took it back from his father’s family.

17                  The representative addressed the claim that the applicant’s mother was arrested and taken to a women’s prison and that the college at which she taught was closed.  The delegate had rejected this claim. The representative, however, referred to a US Department of State Report on Afghanistan in 1999 which made reference to the harsh treatment of women under the Taliban rule.  It was noted in that Report that the Taliban forced almost all women to quit their jobs as professionals and clerical workers, including teachers, doctors, nurses, bank tellers and aide workers.  Girls were formally prohibited from attending school.

18                  The applicant’s claim that his paternal uncles had a part to play in his problems with the Taliban was also addressed.  It was said there was copious evidence to support the contention that the Taliban use their power to settle personal vendettas.  An Amnesty International Report on Afghanistan dated November 1999, referred to Taliban factions as alliances of a wide range of local commanders with fiefdoms in their locality and their own agendas.  A US Department of State Report on Afghanistan in 1999 referred to allegations that the Taliban maintained private prisons to settle personal vendettas.  The representative suggested it was probable, given the country information, that the applicant’s father’s family, being a landowning Sunni family with Taliban connections, would organise the arrest and detention of the applicant and his brother.  The applicant had decided to flee Afghanistan because he was afraid he would suffer the same fate as his brother.  His family was unable to access any protection against his father’s family who were well connected to the Taliban.  Reference was made to Professor Hathaway’s text on the Law of Refugee Status in which he said:

“In view of the recognition in international law of the family as “the natural and fundamental group unit of society [which] is entitled to protection by society and the State”, it is not surprising that refugee claims based on family affiliation have been recognized as within the scope of the social group category, both in Canada and elsewhere.” (AB 75)

The representative put it that the applicant’s brother had been arrested by the Taliban and it was likely that this was organised through the family of their deceased father.  As their father was a military officer with the communist regime, the Taliban would have been able to construct a case relating to the brother’s imputed political opinion.  It was likely that if the applicant had remained in Afghanistan he would have suffered the same fate.

The Tribunal’s Reasoning

19                  The Tribunal accepted at the outset that the applicant is a national of Afghanistan.  It then considered his claim to be a member of the Shia branch of Islam, noting that it was the Taliban’s treatment of Shia which made his religion a central element of his claim to be a refugee.

20                  There were aspects of the applicant’s evidence which suggested to the Tribunal that he was not a Shia. The first consideration was that his father was Sunni but that he had followed his mother’s religion because his father was a communist.  While accepting that religion was “not generally accommodated in communist ideology” the information before the Tribunal was said to be that Islam had always been of overwhelming importance in Afghanistan and that people close to the communist regime had continued to practice it.  Moreover, it was usual in Islam for children to follow their father’s religion when their parents had different religions.  The Tribunal, however, placed more significance on the applicant’s evidence about his life as a Shia in Kandahar after the Taliban took over in coming to the view that he might not be Shia as claimed or indeed that he was not in Kandahar for the time stated.

21                  There were said to be inconsistencies in the applicant’s evidence about his religious practice in post-Taliban Kandahar.  His evidence to the delegate and at the first Tribunal hearing was that he went to a Shia Mosque frequently and that Taliban members were aware of this.  However at the second hearing, he said he had not been able to do so and said he had gone only when the Tribunal pointed out what he had said before.  His evidence on attendance at the Mosque and his response to the Taliban’s rule about prayer was said to be “unconvincing” and the Tribunal was not satisfied that what he had said was true.  The fact that he was able correctly to describe differences in Shia and Sunni religious practice did not overcome the Tribunal’s doubts that he was Shia because he could easily have learned these things by observation or being told about them.

22                  The Tribunal considered the applicant’s account of his life as a Shia in the light of independent information about the Taliban’s treatment of Shia followers.  Independent information indicated that the Taliban’s enforcement of its rules could be uneven but the applicant claimed to have lived in Taliban controlled Kandahar, the Taliban’s stronghold, for some five years, to have had a business near a Sunni Mosque and to have been known as a person who went to a Shia Mosque.  The adverse treatment he claimed was harassment and beating while in custody and being taken to Taliban headquarters six to eight times over matters connected with his beard and prayers and to have been twice detained for a week for these reasons in early 1998.  The Tribunal referred to the applicant’s evidence that people who cried were released and that he had cried and gone on a hunger strike and was released.  In the Tribunal’s opinion, the applicant’s evidence indicated “limited insight into the Taliban’s attitude to and treatment of Shias”.  It was considered very improbable that Taliban members who pressed him to pray would, for so long, have found his attendance at a Shia Mosque acceptable.  The Taliban had made its position on Shias very clear well before the time of the applicant’s detention.  The discrimination against the Shia people was significant from the time the Taliban assumed power and many Shias left for Pakistan.  The applicant had given no evidence that religious rituals in the Shia Mosque had altered and said he had prayed there in the Shia way.  This was at odds with expert advice to the Tribunal from Dr Maley that distinctly Shia features had been shorn from religious practice.  The Tribunal was unable to accept that the applicant was practising as a Shia in Kandahar as he had claimed.  The Tribunal summarised its finding in relation to the applicant’s claim to be a Shia thus:

“To summarise, there are three reasons which have led me to doubt that the applicant is Shia: that his father was Sunni; his evidence about his religious practice was confused and unconvincing; and his account of the attitude of the Taliban towards Shias and the effect of this on their religious practice.  Even in the light of the severity of the Taliban’s response to Shia which means that I must exercise the utmost caution in reaching conclusions which would mean that the applicant would have to return to Afghanistan, I consider that the evidence before me does not support his claim that he is Shia.”

23                  The Tribunal accepted that the applicant’s mother might have been Shia although it was considered somewhat doubtful given that the Taliban appeared to have paid her no attention for that reason.  The Tribunal also accepted that his mother was a teacher whose continued work with women after the Taliban took over in 1994 led to her arrest and detention for a month.  There was no evidence that anything further happened to the applicant’s mother presumably because she then complied with the Taliban’s rules about the conduct of women.  There was nothing to suggest that what had happened to her led to adverse consequences of a kind which might constitute persecution of the applicant.  The Tribunal did not consider that the circumstances of the applicant’s mother would affect what he might face if he were to return to Afghanistan. 

24                  Turning to the contention that the applicant’s father had been killed while in the army in 1992, this was said not to be consistent with the identity document issued in 1989 which showed the father’s occupation as a retired army officer.  The Tribunal referred to the representative’s submission about the reason for that insertion.  It referred also to a submission by the applicant that if his father had been alive in 1992 the problem with the grandfather’s estate would not have arisen.  He had also submitted that, had his father been alive and able to secure the inheritance, his family would not have had to live in a rented house in Kandahar by reason of not receiving the inheritance.  The Tribunal found the claim that the notation about the father’s occupation had been inserted at the request of the applicant’s grandfather and that the grandfather took the identity booklet to Kandahar to be “very curious”.  Why the applicant’s father would not have required his identity booklet himself and why the applicant’s paternal grandfather would have needed to demonstrate in Kandahar that his son in Kabul was not involved with communists was not evident. The writing which stated the father’s occupation as a retired army officer appeared to be identical to other writing on the applicant’s father’s identity card – although how this judgment was made in respect of a non-English language entry was not clear.  In context, the applicant’s speculation that one of his uncles included the notation made in 1994 designating the father’s  occupation as “businessman” was also regarded by the Tribunal as “very curious” and led it to doubt that the applicant’s father died at the time claimed. 

25                  For the purposes of the proceedings before it the Tribunal accepted that the applicant’s father was a member of the army under the communist regime and that he had died some years ago in 1992.  It was not satisfied that the senior position said to be held by the father, in charge of personnel in the communist army’s tank division, would give rise to a well-founded fear of persecution on the part of the applicant.  If, as the applicant submitted, his father died in 1992, his evidence was that nothing happened as a result of his father’s involvement with the communist regime until 1999, some seven years after the fall of the regime and the apparent death of his father.  According to the applicant’s evidence the Taliban were aware of his father’s involvement from 1994 because they were said to have raised it when they detained his mother.  The Tribunal said:

“I am aware of no independent information which supports the applicant’s claim that the children of people who had been involved in the communist regime and who died some years ago are at risk of persecution today because of their parent’s involvement.”

The Tribunal found the applicant’s claim that his brother had been taken by the Taliban because he was the son of a former communist army officer to be implausible and did not accept that this would have been even part of the reason for any such action by the Taliban.  The Tribunal did not accept that the Taliban were looking for the applicant for that reason.  It did not accept that his father’s role would have had any impact on what might happen to the applicant were he to return to Afghanistan in the reasonably foreseeable future.

26                  An additional difficulty with this aspect of the applicant’s claims was that his father’s role was an excuse which the Taliban took to persecute a Shia person.  Yet according to his claims, Taliban members had known since not long after they took power in 1994 that he was Shia and they had learned around that time that his father was a communist. 

27                  As to the claim that his uncles triggered the interest of the Taliban, the Tribunal noted first its finding that the Taliban had not attributed an adverse profile to the applicant or his family given that their religion and the political affiliation of their father had been known for some time.  While not accepting that the applicant was Shia, the Tribunal was prepared to accept his father’s brothers did not like his mother and that they had acted to deny his family his father’s share of his grandfather’s estate.  The Tribunal accepted that such disputes could have serious implications for those involved and that the applicant and his family might feel extremely aggrieved about what his uncles had done.  The applicant had submitted that the uncles’ action to incite Taliban interest in his family was triggered by his brother’s pressure about the inheritance.  The Tribunal did not find this explanation about what it called “the apparently late timing of the uncles agitation of the Taliban’s interest” convincing.  The brother had been pressing the uncles for the inheritance for four or five years.  He was in his early twenties when he had begun to do so.

28                  The Tribunal therefore did not accept that the applicant had given truthful evidence about the Taliban coming to his home in April 1999 and taking his brother away as he claimed.  Nor did it accept that he hid for some five months or that the Taliban came looking for him while he was doing so.  There was no credible evidence before the Tribunal that the Taliban sought out the applicant for reasons connected to his religion or to his father’s role in the communist regime.  On the face of it, the dispute over the applicant’s grandfather’s estate did not engage any of the reasons in the Refugees Convention because it was essentially a private matter and not related to refugee grounds of race, religion, nationality, membership of a particular social group or political opinion.

29                  The Tribunal was not satisfied that the applicant’s return to Afghanistan from Australia would give rise to a real chance that he would face persecution.  It had consulted the information resources available to it and had found no information to support that assertion. Information from 1993 and 1995 indicated that returnees were not at risk.  It was dangerous for anyone to return to areas where war is ongoing but Kandahar and Kabul, the most likely places for the applicant to return to, are places in which the Taliban is firmly in control.  It was potentially dangerous for Hazara people to return, but the applicant is a Pashtun.  The Tribunal noted the applicant’s claim that if he were to return to Afghanistan people who helped him to leave might be punished.  The Tribunal did not know what might happen to those persons but was not satisfied that the evidence indicated this would be material to the applicant’s claim to fear persecution upon return.

30                  The Tribunal also considered whether non-compliance by the applicant with strict Taliban requirements about appearance and clothing could expose him to persecution for Convention reasons.  It was of the view that the Taliban was a heavy handed and often violent regime.  While there might be a chance that the applicant would be harassed and detained by Taliban members for transgressions in connection with appearance, it was not satisfied that the adoption of Taliban approved practices would be unreasonable given that the applicant appeared to have done so when he lived under the Taliban for some five years.  Moreover, the Tribunal did not consider that the Taliban harassment of the applicant because of his beard and clothes indicated a connection to a Convention reason.  His failure to comply with such rules had not resulted in the imputation to him of political or religious beliefs contrary to those of the Taliban.  He was detained for relatively short periods and released. This contrasted with the Taliban’s very harsh treatment of political and religious opponents.  While understanding that the applicant did not like the Taliban and the way they ruled Afghanistan, this would not establish a claim for refugee status unless it could be demonstrated that the applicant was differentially treated for a Convention reason.  Independent information indicated that persons returning to Afghanistan could face very difficult economic circumstances.  While understandable that a young person such as the applicant would seek to make his future elsewhere, the Refugees Convention does not normally give protection from economic hardship.

31                  The Tribunal  was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention. 

The Application for Review

32                  The application for review was itself uninformative, being filed by the applicant in person and specifying as the ground for review:

“The applicant respectfully submits that the decision of the Tribunal is wrong and unjust, in that it has jeopardize (sic) his chances of remaining alive and well, by forcing him into a position where,

(a)       He will be deported directly to Afghanistan, where his life will be put in grave danger.”

The applicant was  represented at the hearing by Mr Curthoys, of counsel, pursuant to a pro bono certificate under O 80 of the Federal Court Rules.  Mr Curthoys did not file an amended application but a substantial written submission which began by identifying as the ground of the applicant’s review the contention that there was no evidence or other material to justify the making of the decision because the decision was based on the existence of particular facts that did not exist.  In so doing he relied upon s 476(1)(g) of the Migration Act.

Statutory Framework

33                  Section 476 of the Migration Act 1958, which defines and confines the grounds upon which application may be made for review by the Federal Court of a judicially-reviewable decision under the Act, provides as follows, in the relevant parts:

“476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

…

(e)        that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(g)       that there was no evidence or other material to justify the making of the decision.

…

(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)       the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

Rationality and the No Evidence Ground

34                  Official decision-making in the exercise of a statutory power must accord with law.  An official making a decision must know the applicable law, determine the relevant facts of the case before him or her and apply the law to the facts.  It may also be necessary to exercise a discretion in which more than one outcome is possible for a given situation.  That cannot be done arbitrarily or capriciously. Ordinarily the law will also require that the process be carried out fairly. 

35                  There is inherent in administrative decision-making according to law, a requirement for a basic or minimum level of rationality.  That requirement is applicable to the ascertainment of the law, the finding of the facts and the application of the law to the facts as well as the exercise of the discretion.  Rationality, in this sense, does not mandate only one outcome.  Nor does it mandate a single pathway of reasoning for any particular case.  It is an envelope which may be said to cover a family of alternative pathways for reaching what can be described as a rational decision. Evidentiary material may allow more than one inference to be drawn about matters of fact.  As to process, fairness, which serves rationality,  may be achieved in more than one way.  It serves rationality by minimising the risk that an answer to one view of a matter is not overlooked because  no opportunity has been given to express it or that matters extraneous to decision-making such as prejudice, partiality or conflict of interest do not contaminate it.  There is a pervasive requirement for rationality in the exercise of statutory powers based upon findings of fact and the application of legal principle to those findings.  It has been described as “a common law standard of good administrative decision-making” – see the extensive and useful discussion of the topic in Airo-Farulla, Rationality and Judicial Review of Administrative Action in “An Australian Retrospective”  Vol 24, No 3, 2000  MULR 543-575.

36                  That is not to say that all failures of rationality are amenable to the traditional grounds of judicial review.  Beyond the limitations imposed by the traditional grounds  the parliament, for policy reasons, may confine the grounds upon which official decision-making can be reviewed by the courts.  Thus Part 8 of the Migration Act limits judicial review by the Federal Court in respect of specified  decisions under the Act and Regulations, to the grounds enumerated in s 476.

37                  There are therefore areas of what might be called non-rational decision-making under the Act which are beyond the reach of people who come to the Court to challenge decisions.  So s 476(2)(b) of the Act excludes a challenge based on the proposition that the claimed challenge was “so unreasonable that no reasonable person could have so exercised the power”.  And s 476(3) puts beyond the reach of persons seeking to challenge decisions under the Act those in which irrelevant considerations have been taken into account or where there has been a failure to take into account relevant considerations or where there has been bad faith on the part of the decision-maker.  Abuse of power is also excluded except to the extent that it is covered by grounds relating to breach of procedures, want of jurisdiction by the decision-maker or where a decision is not authorised by the Act or Regulations.  This is not to say that some of these excluded considerations may not be invoked to demonstrate the existence of one or more of the permitted grounds of review:

“The circumstance of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material” . – Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at par 82.

38                  The general requirement of basic or minimum rationality which informs the traditional grounds of judicial review and those which are permitted under Part 8 of the Migration Act does not provide any warrant for interfering with findings of fact made by the decision-maker where such findings are open on the evidence, even if it can be said that they have been arrived at illogically.  They lie within the envelope of rationality.  As Brennan J said in Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35-36, in a passage approved in Yusuf at par 73:

“The duty and jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison [(1803) 1 Cranch 137, at 177]:

            “It is, emphatically, the province and duty of the judicial department to say what the law is.”

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

The term “merits of administrative action” is there used  to draw a distinction with legality in decision-making.  In a broad sense, of course, a decision which involves an error of law is bad on its merits.

39                  The grounds of review for which the Migration Act provides may be seen to support a principle of minimum rationality which itself has the character of a rule of law even though its application is confined for policy reasons to particular circumstances.  This is illustrated in relation to the “no evidence ground” by the proposition recently enunciated by a Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Al Miahi [2001] FCA 744 at par 34:

“The question whether there is any evidence of a particular fact is a question of law.  Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law.  That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion.  Accordingly, in the context of judicial review, the making of findings and the drawings of inferences in the absence of evidence is an error of law.”

Their Honours enunciated the preceding proposition alongside that reflected in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 that a party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in illogical reasoning:

“Thus, at common law, want of logic is not synonymous with error of law.  So long as  the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.” [par 34]

Brennan, Toohey and Gaudron JJ agreed with the observation.  Thus want of logic in drawing an inference of fact will not, of itself, constitute an error of law.  That was a conclusion reached by Batt J in Roads Corporation v Dacakis (1995) 2 VR 508 at 517-520 and adopted by the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411.  It is to be noted however that the Court in Epeabaka also observed that want of logic might in some cases sound a warning note as to whether there was only a purported and not real exercise of the functions entrusted to the decision-maker.  More recently, in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, it was said to be:

“…now clearly established that the Australian rule which rejects factual mistake or want of logic as a ground for judicial review…is applicable to review under Pt 8.” [par 42]

40                  In Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565, Stone J (Hill J agreeing) rejected the proposition that jurisdictional error reviewable under s 476(1)(b) and (c) would extend to cover unreasonable exercise of power falling within s 476(2)(b).  It was noted that Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at par 154, had not accepted that s 472(2)(b) so confined the permitted grounds under s 476.  This was said to be obiter and not supported by other members of the Court.  Nor did the subsequent approval of his Honour’s analysis of jurisdictional error in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at par 134 footnote 57, extend to an endorsement of his Honour’s view on s 476(2)(b) of the Migration Act.  Stone J said in Gamaethige:

“It is not appropriate to limit the effects of the restrictions imposed by s 476(2) by seeking to graft it onto common law stock.”

This approach is consistent with the observations in the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf, judgment in which was delivered ten days after Gamaethige.  There s 476(2) was seen as excluding grounds of breach of natural justice and unreasonable exercise of power from the grounds of review under Part 8.  Their Honours observed of the subsection that it “… is cast in general terms and is, therefore to be read as qualifying the whole of s 476(1)”.  This is not the case with s 476(3) and (4) which apply only to the particular grounds mentioned in s 476(1)(d) and s 476(1)(g).

41                  As the Full Court said in Al Miahi, ss 476(1)(g) and 476(4) appear to have been intended to give effect to the principles arising out of the Bond decision.  Consistently with Yusuf it may be seen that there is an overlap between the no evidence ground and the error of law ground.  What unites them is the minimum rationality requirement which might be thought of as a kind of meta-rule to be observed in all exercises of statutory power and which shapes the rules of judicial review.  There is a wider concept of illogicality which extends beyond the scope of the minimum rationality requirement. It is important to keep in mind that it also extends beyond the limits of permitted judicial intervention whether under the Act or under the traditional grounds of judicial review.

Rationality, Logic and the No Evidence Ground in Relation to the Tribunal’s Decision

42                   Counsel for the applicant identified  the main elements of his client’s claims as fear of persecution because:

(a)        he is Shia;

(b)        his father had a senior role in the army under the communist regime;

(c)        his Sunni uncles, with links to the Taliban, had used those links against the applicant and his family because of a dispute over the grandfather’s estate.

The submission emphasised the significant inter-connection between the consequences of these three elements.

43                  In respect of the first element, raising a fear of persecution because of the applicant’s status as a Shia Muslim, the Tribunal was said to have relied upon a general statement about the centrality of Islam in Afghanistan.  This, it was said, could not support the proposition that Islam is important to everyone in Afghanistan.  The related generalisation adopted by the Tribunal that “…it is usual in Islam for children to follow their father’s religion…” was based upon evidence from Sheikh Fehmi El-Imam of Islamic Society of Victoria.  The Tribunal’s logic in application of the general propositions which it was said to have elicited from the independent evidence, was characterised thus:

(a)        Islam is important to everyone in Afghanistan;

(b)        therefore Islam was important to the applicant’s father;

(c)        every child follows its father’s religion;

(d)        given that Islam was important to the applicant’s father, he would have ensured that his son became a Sunni and not a Shia;

(e)        in the premises the applicant must have been raised as a Sunni.

It was submitted for the applicant that in both cases the evidence relied upon was so overwhelmingly general that it was of minimal probative value.  The Tribunal had relied upon an incorrect general assertion and a general assertion about what usually occurs to come to a particular conclusion in an individual case.  This simply could not be correct and could not provide a basis for a finding as to whether the applicant was or was not a Shia.  In my opinion, these submissions have identified a  weakness in the logic of the Tribunal in the sense that it seems to have drawn strong inferences from inadequate material.  That, however, is at worst a failure of logic and does not breach the minimum rule of rationality which would elevate it into an error of law.  In particular, it does not fall within the no evidence ground under s 476(1)(g).  There is no particular fact found to exist by the Tribunal which it has been demonstrated to the Court does not exist.  So the necessary condition for application of the no evidence ground, which is specified in s 476(4)(b), is not made out.

44                  The submissions for the applicant went on to contend that there was overwhelming evidence that Shias are persecuted.  It referred to evidence given to the Tribunal by Dr William Maley, Associate Professor of Politics with the Australian Defence Force Academy and an expert on Afghanistan.  He referred to the fears that many Shia realistically hold that some elements of the loosely structured Taliban movement might decide to give vent to their belief that Shia are heretics.  In some cases Shia are able to escape attention because of their practice of Taqiyya (approved dissimulation), but those who wish to practice their distinctive rituals run the risk of attracting unwelcome attention from the Taliban religious police.  The extent to which Shia Mosques in Kandahar can claim to be distinctively Shia is debateable because the Taliban’s control has shorn those Mosques of many of the features which would make them religiously meaningful and significant to Shia.  The ability of Shia people to attend Mosques was said by Dr Maley to possibly point not to religious freedom but to religious persecution.  The Tribunal had also referred to evidence from Mr Ahmed Rashid, a Pakistani reporter on Afghanistan for the Daily Telegraph, the Far Eastern Economic Review and other international news organisations.  He had spoken of Shias in Kandahar, the Shia Mosque there and the large scale discrimination against Shias when the Taliban first arrived in 1994.  Mr Ahmed observed that many Shia left the Quetta and Peshawar, but the discrimination against them became worse after the Taliban had conquered the Hazarajat area of Northern Afghanistan in 1998/1999.  He said the Taliban were intrinsically against Shias and did not think there were many left in Kandahar.  The Tribunal also referred to independent information indicating that the Taliban had made its position on the Shias very clear well before  the time of the applicant’s detention and that discrimination against Shias was significant from the time the Taliban assumed power.  It was submitted for the applicant that reports noted that persecution against Shias had increased significantly in 1998 and 1999.  The Tribunal was said to have relied heavily on the fact that the applicant gave no evidence that religious rituals had altered in the Shia Mosque, whereas Sheikh Fehmi El-Imam’s evidence was that the differences were slight in practice.  Religious persecution, it was said, is seldom based on any rational differences in practice nor on attendance at church or mosque. 

45                  So far as this part of the submissions criticises the Tribunal’s treatment of the evidence before it in relation to discrimination against Shias, again it does not identify a no evidence ground or any breach of the minimum rationality rule which would give rise to an error of law.  The evidence relied upon by the Tribunal may be weak.  It may be contradicted by other cogent evidence.  But if the inference drawn by the Tribunal was open, there can be no error of law merely from the drawing of that inference.  Further, there is again no particular fact basing the Tribunal’s decision whose non-existence has been demonstrated for the Court.

46                  The submissions for the applicant turned to the Tribunal’s treatment of his father’s position as a member of the army under the communist regime.  The Tribunal, it will be recalled, had accepted that his father was a member of the army under the communist regime and that he had died in 1992.  However, it had acted on the basis that his father’s involvement with the army was not relevant because the Taliban had done nothing about it in five years.  This conclusion was criticised on the basis that the Tribunal had equated the Taliban’s knowledge of the applicant’s father’s status as a communist with knowledge that he was a senior army officer.  In this respect the Tribunal had referred to the fact that when the applicant’s mother was imprisoned she had been told by the Taliban that her husband was a communist.  However, it was said, a statement that someone is a communist does not equate to a statement that he was a senior army officer.  It was wrong, therefore, for the Tribunal to assume that the Taliban was aware of this at the time of the mother’s imprisonment.  Again, this was at best an error of logic.  It was not an error of law nor did it disclose a basis for application of the no evidence ground.

47                  In relation to the applicant’s claim that the children of people who had been involved in the communist regime were at risk of persecution today because of their parents’ former affiliation, counsel for the applicant observed that the Tribunal had acted on the basis that it was aware of no independent information which supported that claim.  However the Tribunal, it was said, had misapprehended the nature of the claim and failed to give it proper consideration.  The claim was not that the applicant was at risk of persecution because of his father’s status, but that this “in combination with the other factors” had given rise to persecution.  Reference was made to the existence of independent information before the Tribunal that children whose parents had been involved with the communist regime were at risk of persecution.  Having regard to the material before the Tribunal, including the United Kingdom Immigration and Nationality Directorates Afghanistan Assessment for April 2000, it was impossible to conclude that there was no independent information supporting the applicant’s claim of persecution of children of former communists.  The Tribunal relied upon the inaction by the Taliban since 1994 against the applicant, given that they had learned around that time that his father was a communist.  It was said that the Tribunal’s finding in respect of the failure to take action was based on the false premise that the Taliban knew of his father’s status for four years before they took action.  They learned he was a communist in 1995, but there was no evidence that they learned he was a senior army officer under the communist regime until 1999 when they searched the house and found the identity documents.

48                  The Tribunal’s misapprehension concerning the nature of the persecution of the young men from families of members of the former regime meant they had failed to consider the significance of  the taking of the applicant’s brother.  They had also failed to consider the important question of the probability of their misapprehension as to the nature of the persecution.  The Tribunal should have concluded that the applicant was substantially at risk.  In this respect again, I am unable to identify anything more than an arguable error of logic on the part of the Tribunal and not an absence of evidence of the kind that would support a review under s 476(1)(g). 

49                  In relation to the action of the Sunni uncles, it was submitted that the Tribunal’s logic appeared to be based on the fact that the uncles had waited until 1999 to take any action.  The Tribunal, it was said, could not have formed an adverse view as to the applicant’s credibility based on the fact that they did not believe his evidence.  This disbelief was said to have arisen from the Tribunal’s finding that the applicant and his brother had established a small business which did not give rise to any enhanced ability to cause trouble for the uncles.  This, it was said, might be true in Australian society but it could not be transferred to Afghan society in the absence of evidence as to conduct in that society.  In this respect it was said there is just no evidence.

50                  For the Refugee Review Tribunal it is of obviously of vital importance, and no doubt generally appreciated, that in its decision-making it must make allowance for the very different cultural settings from which many of those appearing before it come and the need to avoid applying assumptions about human behaviour  which are contingent upon or informed by local culture.  Having said that, a failure so to do does not give rise of itself to a reviewable ground under s 476.   As Finkelstein J recently observed, as a member of the Full Court, in Jegatheeswaran v Minister for Immigration and Multicultural Affairs [2001] FCA 865:

“…the trier of fact’s views about human behaviour will not always be sound.  Those views may be grounded in prejudice or bias.  The resultant findings of fact may be wrong.  But the result cannot be challenged on the “no evidence” ground.  That is to say, there can be no error of law of the “no evidence” type when one is concerned with a process of reasoning in respect of which no evidence is tendered.” [par 58]

 Whilst one might have reservations in this case about the inferences drawn by the Tribunal in respect of the relationship between the applicant and his uncles and its genesis, those reservations do not enliven a ground of review under Part 8 of the Act.

51                  Despite the best efforts of counsel for the applicant, who was acting pro bono in this matter, no ground of review has been exposed and the application must be dismissed.

Conclusion

52                  The application is dismissed with costs.

Associate:

Dated:              19 July 2001