FEDERAL COURT OF AUSTRALIA

MZYPV v Minister for Immigration and Citizenship [2012] FCA 296

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment made by the Federal Magistrates’ Court of Australia on 23 December 2011, dismissing an application invoking the jurisdiction of that court under s 75(v) of The Constitution, as vested by s 476 of the Migration Act 1958 (Cth) (“the Act”). That application named the Minister for Immigration and Citizenship (“the Minister”) and Mr Les Blacklow in his capacity as Independent Merits Reviewer (“the reviewer”) as respondents, and sought the following relief:

•    A declaration that the recommendation of [the reviewer] was not made in accordance with law, by reason of the ground/s of this application.

•    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of [the reviewer].

2    The recommendation referred to was made by the reviewer on 22 July 2011, and was in the following terms:

I find that the claimant, [MZYPV], does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958. Accordingly, I recommend that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Refugees Convention”).

3    The appellant is a national of Afghanistan who arrived at Christmas Island by boat on 7 April 2010. On 6 July 2010, he requested a Refugee Status Assessment (“RSA”), which assessment was made, adversely to the appellant, on 19 August 2010. On 31 August 2010, the appellant applied for the conduct of an Independent Merits Review, which review was carried out by the reviewer, and resulted in the recommendation which was the subject of the appellant’s application in the Federal Magistrates’ Court. Both in that Court and in the present appeal, the case was conducted on the assumption that the Federal Magistrates’ Court had jurisdiction under s 476 of the Act to hear the appellant’s application for a declaration and an injunction. Although I would have to say that it is not immediately apparent that that assumption was well founded, it was an assumption nonetheless, and I was not invited to depart from it in the determination of the present appeal.

4    The appellant is of Hazara ethnicity and follows the Shi’a Muslim religion. As identified by the reviewer, the appellant’s claims fell into two broad departments. The first related to the prospect of persecution by the Taliban on account of his ethnicity and religion. In rejecting these claims, the reviewer said:

… but could not conclude based on the reports mentioned in the previous paragraphs that they have been targeted for persecution on a systematic basis, ie. because they are Hazara and/or Shia as such.

….

The reviewer did not accept therefore that a person’s identity as an Hazara Shia was sufficient of itself for such a person to come within the Refugee Convention definition.

In these areas, the reviewer noted that s 91R of the Act required, for acceptance of the appellant’s claims, that the reasons for persecution upon which he relied be “essential and significant” ones, and that the persecution feared would involve “serious harm to the person” and “systematic and discriminatory conduct”. These were not conclusions which the reviewer was able to reach, based as they would have been upon circumstances confronting Shia Muslims of Hazaran ethnicity generally.

5    The reviewer then considered the second department of the appellant’s claims, which involved his individual circumstances. His claims were broadly as follows. For a number of years, the appellant and his brother had operated a bakery in the village of his residence which sold baked products in the European style, such as “French bread”, to the staff of non-government organisations working in Afghanistan. The bakery was well known for this practice, which commenced in 2007. He and his brother were required to travel from their village to Kandahar on a regular basis, in order to obtain supplies for their bakery. On one occasion in 2009, when his brother was absent on such a trip, the appellant received a phone call from a person using his brother’s mobile telephone. The caller claimed to be a member of the Taliban, said that he had killed the appellant’s brother, and threatened to kill the appellant as well. Thereafter, according to the appellant, he received threatening phone calls, in which he was accused of being an infidel and of “cooking for the Americans”. The appellant continued to operate the bakery alone for about five further months, although, according to what he told the reviewer, during this period he avoided staying in his own house at night, because of the threats which had been made to kill him. He then fled to Pakistan, and ultimately made his way to a point of embarkation from which he could travel by boat to Christmas Island.

6    These aspects of the appellant’s case were treated by the reviewer as involving a claim that he feared persecution on the ground of his imputed political opinion. The reviewer said:

It has been noted and it is accepted that the claimant sold French Breads to NGOs for the period 2007 to 2009. The attack on his brother and his death, suggested to have been at the hands of the Taliban, occurred at a time when, on available country information, the Taliban had been gaining in influence, including in the Jaghori district. However, the reviewer could not conclude that the brother’s death was known to be due to the Taliban. Another factor is that, as part of the baking business, it is accepted that the claimant would often travel outside his village, including to Khandahar, to purchase specialty supplies for his bakery including appropriate flour and oils. According to the UNHCR eligibility guidelines groups especially at risk are Afghans who work with or who are associated with international organisations. Given it is accepted that the claimant had previously supplied NGOs and it is noted that the claimant said this was well known in his area, the question remains as to how this impacted on the claimant’s claims of persecution. The claimant stated he had not had difficulty with the Taliban until 2009 and it was only then he said he commenced to receive threats. The claimant stated, when questioned, that the Taliban did not actually visit his shop at any time to carry out any actions against him. According to the claimant the Taliban knew of the location of the bakery, and the reviewer accepted that, but he had no explanation as to why the Taliban did not visit his shop at any time.

The reviewer took the view that the appellant’s choice to continue operating the bakery for some five months after the apparent death of his brother suggested that he “did not act consistently with being in fear of his life”.

7    In determining this aspect of the matter, the reviewer noted that a fear of persecution was to be regarded as “well-founded” within the meaning of the Refugees Convention if there was, as a matter of objective basis, a “real chance” that the appellant would be persecuted. The reviewer continued:

An assessment of the claimant’s subjective fear rests substantially on his oral evidence and the plausibility of his account about receiving threats from the Taliban made on his brothers mobile phone. Even if it were to be accepted that the claimant had a subjective fear of persecution I do not consider the claimant will face a real chance of serious harm for a convention reason now or in the reasonably foreseeable future if he were to return to Afghanistan.

The reviewer concluded that there was no real chance of the appellant being persecuted, taking into account the following matters:

–    The claimant had been a French baker for a number of years at his shop in the bazaar at Sang-e Masha.

–    It was well known in his area his bakery had many customers, including NGOs.

–    The physical location of his shop was also well known to many people.

–    The claimant acknowledged that his bakery was well known and had no explanation, given the threats he had allegedly received, why the Taliban had not visited his shop.

–    The Taliban had not visited either his shop or his home at any time.

–    He had no personal contact with the Taliban in any other place (ie. excluding his shop and home) including on any of his trips to Kandahar to purchase supplies.

–    In his statement of 6 July 2010 he indicated that the photo of him and his brother at the bakery was shown on a mobile phone to the taxi driver who was conveying his brother to Khandahar. In his original statement he stated that Pashtun who had gone to the bazaar “had given my photos to the Taliban on the highway of Qandahar [sic]”. This inconsistency throws considerable doubt on whether the Taliban actually had a photo of the claimant, and given there was no need for one as his location was well known.

–    Up to the time of his brother’s death the claimant had travelled many times to Khandahar without incident.

–    He stated at the review interview that he had received threats “every night and day”. This was taken to be an embellishment because if it were literally true the claimant could not have effectively continued to operate his bakery at all during the 5 months following his brother’s death, as he had also stated that he closed the bakery every time he received a threatening phone call.

8    The reviewer accepted that Afghans ran a “a very high risk of persecution from the Taliban if they are perceived as supporting the government or working directly or indirectly with foreign forces”, but considered that the facts that the appellant had been selling his baked products at his shop since 2007, that the Taliban knew of that circumstance, and that no action had been taken against him, were irreconcilable with the proposition that the appellant’s bakery trade was “seen as unacceptable to the Taliban”. The reviewer continued (and concluded):

The claimant put at the interview, that having produced and sold “western” goods to NGOs, one of which was directly involved in reconstruction efforts, the “damage” in a way had been done and could not effectively be remedied. However that was not accepted because, as stated above, the claimant had been selling his goods to NGOs without incident for many months from 2007 to 2009. In this particular aspect I note the RSA assessment record and conclude that the evidence suggests that the Taliban could not be taken to have had a real interest in him and hence I have concluded that there was no real chance of serious harm to him now or in the reasonably foreseeable future.

9    Before the Federal Magistrate, the appellant had three grounds. The first was that the reviewer had “incorrectly substituted a test of actual past persecution for the test required by the Convention”. In this respect, the Federal Magistrate held that the reviewer “was aware of the correct test and applied that test to the applicant’s case”. Her Honour noted that, at the outset of his reasons, the reviewer had said that the question posed by s 36(2) of the Act was to be assessed “upon the facts as found when the assessment was made”, and required a consideration of the circumstances “in the reasonably foreseeable future”. Her Honour noted that the reviewer had considered the “real chance” test as discussed by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, and referred to the utility of past events in the assessment of the likelihood of future events, as dealt with by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow  JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. Finally, her Honour adverted to the passages which I have set out above in which, in his conclusion, the reviewer expressed the opinion that there was no real chance of the appellant being persecuted “now or in the reasonably foreseeable future”. Accordingly, her Honour rejected this ground.

10    The appellant’s second ground before the Federal Magistrate was that the reviewer “failed to consider the possibility” that the appellant’s brother might have been killed by the Taliban. The point here was that, although the reviewer had said that he “could not conclude” that the brother’s death was attributable to the Taliban, he had not proceeded to consider the possibility of the contrary being the case. The point was based upon what had been said by Sackville J, with the agreement of North J, in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, 239 [60]:

It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.

However, the Federal Magistrate referred to the following passage in Sackville J’s judgment in Rajalingam (93 FCR at 241 [67]):

Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

Her Honour considered that, on a “fair reading” of the reviewer’s reasons, it was clear that he had “no real doubt” about the finding that the appellant’s brother had not been killed by the Taliban for any Convention-related reasons.

11    The appellant’s third ground before the Federal Magistrate was that the decision of the reviewer was not “based on findings supported by logical evidence”. This ground, it seems, involved the proposition that jurisdictional error might occur, in some circumstances, if the reasons said to be infected thereby were illogical or irrational. But the Federal Magistrate considered that the appellant’s point amounted to no more than “simply [sic] disagreement with the merits of the [reviewer’s] reasoning”. Her Honour relied upon the following passage from the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131]:

But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

According to the Federal Magistrate, on the probative evidence before the reviewer, a logical or rational decision-maker could have come to the same conclusion as he did.

12    For the reasons given by her Honour, the Federal Magistrate dismissed the appellant’s application for a declaration and an injunction in relation to the decision of the reviewer.

13    In the appellant’s appeal in this Court, he relied upon the same three grounds as he had advanced before the Federal Magistrate, together with an additional ground to the effect that her Honour failed to give adequate reasons for the conclusion which she reached. In the way the submissions were developed on behalf of the appellant, this fourth ground was advanced in respect of each of the conclusions reached by the Federal Magistrate the subject of the original three grounds. It is convenient also to deal here with the fourth ground in the course of my consideration of each of the other grounds of appeal advanced on behalf of the appellant.

14    In the order in which they were advanced by counsel for the appellant, the first of his grounds was what was described as the “Rajalingam ground”. Here, as before the Federal Magistrate, the focus was upon the way the reviewer had dealt with the appellant’s claim that his brother had met his end at the hands of the Taliban. It was submitted that the Federal Magistrate’s conclusion that the reviewer had no real doubt in finding that the brother had not been killed by the Taliban was not open upon, and involved a misunderstanding of, the written reasons of the reviewer which, it was said, necessarily disclosed his deliberative process. The crux of the matter was to be found in the single sentence:

However, the Reviewer could not conclude that the brother’s death was known to be due to the Taliban.

It was submitted that that sentence involved no more than a statement of the reviewer’s inability to reach a positive conclusion as to the cause of the brother’s death. This was to be contrasted, it was said, with a conclusion that the brother’s death had not been caused by the Taliban. In a case of the latter kind, it may be possible to infer that the conclusion was reached without any element of real doubt. In the case of the former kind, however, it would almost never be possible to reach such a conclusion, and it was certainly not possible to do so by reference only to the sentence set out above. According to the submissions advanced on behalf of the appellant, the Federal Magistrate had no choice but to perceive in that sentence an element of real doubt as to the conclusion about the brother’s death.

15    When looking at the reasons of an administrative decision-maker, it is wrong to take an unduly semantic approach. The quality of each finding, or expression of an inability to make a finding, of the decision-maker, and the conviction with which such conclusions are expressly or implicitly reached, is to be assessed by reference to the context in which the decision came to be made, to the background circumstances confronting the decision-maker, and to the words of the decision as a whole, approached, as has often been said, by way of a “fair reading”. Although the reviewer in the present case was engaged in what he recognised to be a fresh consideration of all the appellant’s claims, he had before him, uncontroversially, the record of the original RSA. At that level, the appellant’s claim that the Taliban had killed his brother had not been accepted. The only evidence that the brother had been killed by the Taliban was the oral version of the events given by the appellant himself, and even then that version involved not an eye witness account, but an account of a telephone call from someone claiming to have been associated with the killing. On any realistic and practical view of the matter, the proposition that the brother had been killed by the Taliban was the appellant’s to make good. It would be unsurprising and, in my view, unexceptionable, for the reviewer to have approached this question on the basis that he was either persuaded by the appellant that the brother had been killed by the Taliban, or not so persuaded.

16    Fairly read, what the reviewer said in the present case was that he could not reach the conclusion which was pressed upon him by the appellant. In other words, a finding that the brother’s death was due to the Taliban ought not to be made on the material before the reviewer, including the statements of the appellant himself. In this respect it is significant that the reviewer did not admit of a possibility of a conclusion that the brother’s death was due to the Taliban. He said, in effect, that such a conclusion could not be reached. The words of the reviewer were regarded by the Federal Magistrate as conveying an absence of any real doubt as to the conclusion there referred to. I agree with the Federal Magistrate that that is the most natural understanding of the passage in question in the reviewer’s decision.

17    It follows that I would also reject the appellant’s challenge to the sufficiency of the reasons of the Federal Magistrate in relation to his first ground. Her Honour set out the essence of the finding by the reviewer upon which this ground was based, referred to Rajalingam, noted that the reviewer was “not satisfied that the applicant’s brother had been killed by the Taliban for any Convention-related reason”, and concluded that, “[o]n a fair reading of the report as a whole it is clear that the Reviewer had no real doubt as to this finding”. There is, in my view, no insufficiency in these reasons.

18    As developed on appeal, the appellant’s second ground depended very much on the evidence which was before the reviewer that the influence of the Taliban, in the region in which the appellant and his brother lived and travelled, had been increasing in recent years, and particularly since 2007. Although the reviewer correctly identified the question which he was required to answer as relating to the present and to the “reasonably foreseeable future”, it was submitted on behalf of the appellant that this amounted, in effect, to little more than paying lip service to the applicable principle. It was said that, in point of substance, the reviewer’s conclusion that the appellant would not face a real chance of serious harm in Afghanistan was almost entirely based upon circumstances which pre-dated the recent rise in the influence of the Taliban.

19    The difficulty confronted by this ground lies in the circumstance that the reviewer did instruct himself by reference to the correct test, and did note, in the deliberative part of his reasons, that, in the general period within which the death of the appellant’s brother had occurred, “the Taliban had been gaining in influence”. This was not a case in which factual material, noted in the earlier parts of the reviewer’s reasons, had been overlooked at the point where the decision had to be made. Rather, the conclusion for which counsel for the appellant pressed – that the reviewer’s reference to the need to consider the reasonably foreseeable future was a token reference only – might (not would) be reached only as the result of a fastidious, dismembering of relevant passages in the reviewer’s reasons. That is not the approach which should be taken to the reasons of an administrative decision-maker.

20    I do not share the cynicism about the genuineness of the statements made in the reviewer’s reasons which was implicit in the submissions advanced on behalf of the appellant. There is, in my view, no substance in the suggestion that the reviewer did not have at the centre of his deliberations the prospect of the appellant suffering serious harm in Afghanistan, both at the time when he made his decision and into the reasonably foreseeable future. I agree with the Federal Magistrate in this regard. I would only add that much of the concern expressed on behalf of the appellant as to the Taliban in recent years appears to ignore an important theme which is implicit in all of the reviewer’s findings, namely, that, however influential the Taliban was, it had little or no interest in the appellant or his bakery.

21    As to her Honour’s reasons in relation to this ground, I refer to what I have said in para 9 above. Those reasons were manifestly sufficient to deal with the point which had been raised on behalf of the appellant at that level.

22    The appellant’s third ground was based upon what had been said in the joint judgments of Gummow ACJ and Kiefel J, and of Crennan and Bell JJ, in SZMDS. Although he noted some, perhaps subtle, differences between the approaches taken in those judgments, counsel submitted that it made little difference which approach was taken. In the circumstances, it will be sufficient if I set out the following from the judgment of Crennan and Bell JJ (240 CLR at 649 [135]):

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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.

23    It was submitted on behalf of the appellant that the decision of the reviewer was illogical or irrational because it was based on no probative evidence, and because of the inherent illogicality of the inferences which, it was said, the reviewer drew. In each respect, the appellant’s arguments were closely bound up with his second ground as identified above, namely, that involving the reviewer’s reliance upon past events in circumstances where the present, and the reasonably foreseeable future, fell to be considered.

24    It was submitted on behalf of the appellant that “there was no probative evidence that the Taliban had no interest in the appellant”. It will be seen, immediately, that it is counsel for the appellant who has here infringed his own injunction that illogical and irrational reasoning must be avoided. It was not for the reviewer to establish that there was probative evidence that the Taliban had no interest in the appellant. It was not, in other words, for the reviewer to establish a negative state of affairs. The reviewer was obliged to look at all the material available to him, and to decide whether that material established that the appellant’s fear of harm at the hands of the Taliban – assuming for present purposes that that fear existed – was well-founded. Quite clearly, the reviewer was not so satisfied. It would, in my view, be a distraction to propose that the reviewer had no jurisdiction to dispose of the appellant’s application in this way unless there was “probative evidence that the Taliban had no interest in the appellant”. In this respect, the decision of the reviewer was, in my view, both logical and rational.

25    The other aspect of this ground was, according to the appellant, that it had been illogical for the reviewer to have inferred from the fact that the appellant had not been persecuted in the past that there was no real prospect of him being persecuted in the reasonably foreseeable future. Although I would reject the proposition, implicit in this aspect of the appellant’s case, that it was the mere absence of persecution in the past from which the reviewer inferred the absence of any prospect of persecution in the future, I cannot understand how it can be said that the use of past events and situations as a basis for assessing the foundation of a presumptive fear as to events of the future might be described as illogical. The question rising under the Convention was, after all, whether the appellant had a “well-founded” fear of being persecuted. That is to say, the fear of being persecuted must be founded in something, and it was the events which had happened in the past upon which the appellant relied in his case before the reviewer. If it was, indeed, the reviewer’s decision that those events did not found the fear which the appellant claimed to have, far from being illogical, I would consider that the reviewer’s approach was closely conformable with the terms of the Convention.

26    In the words of Crennan and Bell JJ in SZMDS, I would reject the appellant’s case that there was “no logical connection between the evidence and the inferences or conclusions drawn” by the reviewer. I agree with the conclusion drawn by the Federal Magistrate that a logical and a rational decision maker could have come to the same conclusion as did the reviewer, and that this aspect of the appellant’s case is no more than an attempt to revisit the merits of the reviewer’s reasoning.

27    It will be apparent from what I have most recently said above that I see no insufficiency in the reasons given by the Federal Magistrate for rejecting this aspect of the appellant’s case. Her Honour referred to SZMDS, her Honour accepted that the “illogical or irrational” ground existed as a basis for jurisdictional challenge, but her Honour came to the conclusion, adversely to the appellant, that a logical or rational decision maker could have come to the same conclusion as did the reviewer. I am bound to say that the rejection of the point here being advanced on behalf of the appellant deserved no greater elaboration, in point of reasoning, than that provided by her Honour.

28    It follows that the appeal must be dismissed. Counsel for the appellant accepted, if this should be my conclusion, and in the absence of some special circumstance, that the costs of the appeal must follow the event. The Minister must, therefore, have his costs of the appeal.

Associate:

Dated:    28 March 2012