FEDERAL COURT OF AUSTRALIA

WZARJ v Minister for Immigration and Border Protection [2013] FCA 1318

THE COURT ORDERS THAT:

1.    The title of the first respondent be changed to ‘Minister for Immigration and Border Protection’.

2.    The appeal is dismissed.

3.    The appellants pay the costs of the first respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellants are male family members from Afghanistan, a father and three sons. They unsuccessfully sought protection visas in Australia. The Refugee Review Tribunal (the Tribunal) affirmed that decision and their application for judicial review of that decision to the Federal Circuit Court of Australia was dismissed. From that dismissal, they appeal to this Court.

BACKGROUND

2    At the time of the decision of the primary judge, the sons were aged 15, 18 and 26 respectively. They are Hazara and Shi′a Muslims. The father was born in Kabul, Afghanistan, but owned land in Behsud.

3    As the primary judge recounted, in about 2007/2008 the father, being a village elder, visited Behsud to participate in brief discussions with the Kuchis with whom the Hazara community in Behsud were in dispute. In the course of his visit, the father was severely injured in an explosion which occurred whilst he was attending a mosque. He was returned to Kabul where he was hospitalised. While he was hospitalised he was able to attend a funeral ceremony for others who had been killed in Behsud. On this occasion he was photographed. The photograph appeared in a nationally circulating newspaper. There is no indication that he was named. There was a further attack in the following year on Behsud by the ‘Kuchi Taliban’. The father travelled to Behsud to help those who had been injured and stayed there for about 15 days.

4    In or about 2009, the father built a swimming pool centre in Kabul which he ran with two of his sons. In about August 2011, the father was at the swimming pool with the youngest and the oldest sons, being the second and the fourth appellant.

5    That factual background was accepted by the Tribunal.

An incident at the swimming pool

6    The Tribunal did not accept the next part of the appellants’ account.

7    The appellants’ claims focus upon an alleged visit of an armed group of Kuchis to the swimming pool. Although it had been expressed in different ways, the essence of the claim was that the father and his sons formed the view that the Kuchis had come to the swimming pool to kill the father by reason of his background and involvement in disputation with the Kuchis and that by inference the children were similarly exposed to a risk of death. It was for that reason they left Afghanistan. The sale of the swimming pool business financially enabled them to do so.

8    On the date of the visit to the swimming pool, it was only the youngest son, then aged 14, to whom the Kuchis allegedly spoke.

9    The youngest son explained that when he was helping his father at the pool one day, he was standing at the entrance when four armed Kuchis came to the entrance. They were wandering around outside. They came up to him and asked him who owned the swimming pool. He said he was very scared and could not speak very much. He told them that he was just an employee and did not know anything about the owner. In fact he then went to tell his father who was with the oldest son. He reported that some Kuchis had come looking for him. They then apparently jumped over or across a wall into the farm next door and went home.

10    The Tribunal (at [131]) observed that the father and his youngest son:

gave consistent evidence at the hearing … that the Kuchi men who came to the swimming pool complex in Kabul asked who the owner of the swimming pool was and that they also asked [by name] where [the father] was.

11    The youngest son explained in the two months following the swimming pool incident, all of them stayed at home. The youngest son ceased attending school. He said he was very scared and tried not to think about it. He tried to pass his time playing games. It was the father’s decision that they had to leave Afghanistan. He found it depressing and upsetting, leaving his mother and family at home and was worried about what would happen to his father and brothers on the way to Australia. He feared that they would be killed or seriously injured by the Kuchi Taliban because he was part of the family and his father’s son. He believed there was no safe place for him in Afghanistan.

12    From the foregoing, it can be seen, as observed by the primary judge (at [13]) that it was only the youngest son, the second appellant, who had any communications with the Kuchis. His account of the event was also set out by the primary judge (at [14]).

IN THE TRIBUNAL

13    The Tribunal raised various issues with the father, including:

(a)    why the Kuchi men had asked the youngest son who the owner of swimming pool was even though, according to the answer given, they would have known who the owner was; and

(b)    why he had to immediately leave the swimming pool complex and go into hiding and flee Afghanistan when the incident in which the father had been injured occurred four years prior to the incident at the swimming pool.

14    The Tribunal decided that there was no evidence of any well-founded fear and it was difficult to believe that simply having been told that there was some Kuchis asking for the father that his immediate reaction would have been to leave the swimming pool complex, to go into hiding and then to flee Afghanistan. This particularly so where no one tried to find out what the Kuchis wanted. The Tribunal noted that the alleged concerns were driven by the fact that the Kuchis were armed but discounted this as there is high level of gun ownership in Kabul and the illegal trade in weapons is poorly regulated. The Tribunal rejected the contention that simply because the Kuchis were armed, that the father and the sons would have been in fear for their lives (at [135]). It also queried (at [132]) why, if the Kuchis had come to the swimming pool to look for the father as he claimed, they would have asked the youngest son who the owner of the swimming pool was.

15    The Tribunal expressly found (at [136]) that it did not accept that the appellants were telling the truth about the Kuchi men having come to the swimming pool complex and having asked for the father.

BEFORE THE PRIMARY JUDGE

16    By their amended application, the appellants advanced 16 grounds of appeal before the primary judge. It is necessary to summarise those grounds before discussing his Honour’s treatment of them.

17    Ground 1 was that the Tribunal never put to the oldest son, during the Tribunal hearing, or subsequently, that the Tribunal member had difficulty in accepting the oldest son’s account of Kuchi men with guns attending at the Kabul swimming pool complex owned by his father. Likewise, ground 2 was that the Tribunal never put to the youngest son, during the Tribunal hearing, or subsequently, that the Tribunal member had difficulty accepting the youngest son’s account of Kuchi men with guns attending at the Kabul swimming pool complex owned by his father. Ground 3 was that by reason of the matters pleaded in ground 1 and/or ground 2, the Tribunal hearing was conducted in a manner which was procedurally unfair towards to the appellants (both collectively and individually).

18    By ground 4, the appellants contended that the Tribunal’s rejection of the appellants’ accounts of the swimming pool incident was:

(1)    made by reason of a failure on the part of the Tribunal to give proper, genuine and realistic consideration to the appellants’ claims; and/or

(2)    irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

19    Grounds 5 and 6 of the amended application were, in substance, an attack on the credibility findings made by the Tribunal. The Tribunal found that due to the high proportion of gun ownership in Kabul, it was not credible that the father and his sons would have concluded from the fact that the Kuchis had guns that they (i.e., the Kuchis) had come to the Kabul swimming pool complex to kill the father or his sons. Complaint was made that the Tribunal member used that finding to reject the proposition that the father had a well-founded fear that the Kuchis wished to kill the father and/or his sons. There was criticism that the swimming pool incident was considered in isolation without placing that incident in the context of other relevant facts which the Tribunal member accepted as true.

20    Grounds 7 and 8 complained that the Tribunal:

1.    did not consider integers of the appellants’ claims relevant to the issue whether the father had a well-founded fear that Kuchis wished to kill him and/or his sons; and/or

2.    failed to give proper, genuine and realistic consideration to the appellants’ claims; and/or

3.    reached a conclusion that was irrational, illogical and not based on findings or inferences of fact supported by logical grounds on the issue of whether the father had a well-founded fear that Kuchis wished to kill him and/or his sons.

21    Ground 9 was that the Tribunal member assessed the credibility of the appellants’ accounts of the swimming pool incident by reference to country information concerning gun ownership which was irrelevant to those accounts. This was because the appellants’ case for protection visas was based on the father’s previous dealings with the Kuchis and his status as an elder in the Hazara community. Ground 10 was that by doing so, the Tribunal denied the appellants procedural fairness and/or failed to give proper genuine and realistic consideration to the appellants’ claims or made an assessment of credibility that was irrational, illogical and not based on findings of fact supported by logical grounds.

22    The appellants contended by ground 11 that the Tribunal assessed the credibility of the appellants’ accounts of the swimming pool incident by reference to general country information about the Kuchi/Hazara ethnic conflict in Kabul which was not relevant to those accounts. By using that country information in the way it did, the appellants contended before the primary judge by ground 12 that the Tribunal denied the appellants procedural fairness, failed to give proper assessment to their claims and/or made an assessment of credibility that was irrational, illogical or not based on findings of fact or inference supported by illogical grounds.

23    Ground 13 was that the Tribunal asked itself the wrong question and/or misconstrued the expression ‘well-founded fear of being persecuted’ in Art 1A(2) of the Convention by (in effect) requiring the appellants to establish why the Kuchis wanted to kill the father and/or his sons.

24    Ground 14 was that the Tribunal asked itself the wrong question and/or misconstrued the expression ‘well-founded fear of being persecuted’ in Art 1A(2) of the Convention by (in effect) requiring each of the appellants (including the youngest son who was only 14 years old at the time) to ‘find out what the Kuchis wanted’ before going into hiding and fleeing Afghanistan.

25    Ground 15 was that the Tribunal asked itself the wrong question and/or misconstrued the ‘risk component’ in the expression ‘well-founded fear of being persecuted’ in Art 1A(2) of the Convention.

26    Ground 16 was that the Tribunal member rejected the proposition that the father had a well-founded fear that Kuchis wished to kill the father and/or his sons without considering the possibility that the Tribunal member’s assessment of the credibility of the appellants’ accounts of the ‘swimming pool incident’ may have been wrong.

27    The primary judge rejected all grounds of appeal. As to ground 1, which raised the complaint that the Tribunal member never put to the oldest son that he had difficulty in accepting the account of the Kuchi men with guns attending at the swimming pool, the Tribunal member did put his doubts about that topic to the father. His Honour accepted the Minister’s submission that it was not a requirement for the Tribunal to give a running commentary about the veracity of evidence put forward by the appellants: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (at [48]). The primary judge also observed the transcript from the Tribunal hearing and noted that the father appeared to speak as a lead spokesman for the appellants in the Tribunal hearing.

28    As to ground 2, which simply duplicated ground 1, but in relation to the youngest son it was disposed of in the same way by his Honour, as was ground 3.

29    As to ground 4, the primary judge noted what was said by Griffiths J in SZQGC v Minister for Immigration and Citizenship (2012) 128 ALD 338 (at [32]) when his Honour observed:

Secondly, it is now well established that the epithet “proper, genuine and realistic consideration” needs to be viewed with considerable caution because it invites the Court to slide into an impermissible merits review (see, for example, Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [65] per Heerey, Goldberg and Weinberg JJ; Reece v Webber (2011) 192 FCR 254 at [68]-[70] per Jacobson, Flick and Reeves JJ; and Anderson v Director-General, Department of Environmental and Climate Change (2008) 251 ALR 633 at [51]-[60] per Tobias JA, with whom Spigelman CJ and Macfarlan JA agreed).

30    The primary judge formed the view that the Tribunal had given genuine consideration to the appellants’ central claim about armed Kuchis visiting the swimming pool and asking where the father was but unfortunately for the appellants they were not believed.

31    As to ground 5 and ground 6, the primary judge accepted the Minister’s submission that the Tribunal did not reject the appellants’ account of the swimming pool incident solely as a result of inherent implausibility, but also because none of the appellants had ‘asked the Kuchis what they wanted’ and there was no evidence on any account that the Kuchis ever threatened the appellants at the swimming pool complex. His Honour accepted that assessment of credibility was a finding of fact which was a matter for the Tribunal.

32    Similarly, in relation to ground 7 and ground 8, the primary judge noted that the Tribunal was entitled to rely on the finding that the evidence demonstrated that the father had lived comfortably in Kabul from about 2007/2008 when the attack took place, to 2011 without any untoward incident. His Honour was of the view that it could not be said that the Tribunal’s conclusion was irrational or illogical or made without evidence.

33    As to ground 9 and ground 10 (assessing the credibility of the appellants’ accounts of the swimming pool incident by reference to country information concerning gun ownership which was irrelevant to those accounts), these too were rejected. The primary judge noted that the Tribunal put those matters squarely to the appellants at the hearing and that usage of country information was logical and relevant.

34    As to ground 11 and ground 12, the only country information relied upon by the Tribunal in the primary judge’s view was that relating to the Kuchi/Hazara general ethnic conflict by which it was accepted that there had been an attack on Shi’a Muslims in Kabul on December 2011 but that this was rare. The primary judge considered that this did not operate in any significant way on the Tribunal’s reasoning and did not give rise to any cause for complaint.

35    As to ground 13, the primary judge addressed this ground for review (that is, the Tribunal asked itself the wrong question by requiring the appellants to establish why the Kuchis would want to kill the father and/or his sons) in one paragraph on the basis that the account given by the appellants was simply not believed. His Honour found that that was a finding which was open to be made. Ground 14 was dealt with in the same way. His Honour concluded that it was not unreasonable for the Tribunal to have regard to the fact that none of the appellants had ever asked what the Kuchis wanted in testing their claims.

36    Ground 15 and ground 16 were also rejected. The primary judge followed the observations of the Full Court (Keane CJ, Perram and Yates JJ) in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 where their Honours said (at [95]):

…

(f)    In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal's own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

(emphasis added)

IN THIS COURT

37    In this Court, grounds 7, 8, 9 and 10 of the grounds of appeal filed 5 June 2013 were abandoned. Grounds 1-6 read as follows:

1.    Rejection of Ground 4 of the Amended Application: The [primary judge] erred in law in failing to find that the [Tribunal] committed a jurisdictional error in arriving at the decision “not [to] accept that [the youngest son] [was] telling the truth about the Kuchi men having come to the swimming pool complex and having asked for [the father]”. The [primary judge] should have held that there was no rational basis for the [Tribunal] to find that the [youngest son] was not telling the truth.

2.    Rejection of Grounds 6 & 8 of the Amended Application: The [Tribunal] rejected the proposition that the [father] had a [well-founded] fear that the Kuchis wished to kill the [father] and/or [his sons] by reason of Kuchi men having come to the swimming pool complex and asked the [youngest son] for the [father]. The learned [primary judge] erred in law in failing to find that the [Tribunal] committed jurisdictional error in rejecting that proposition. The learned [primary judge] should have held that the [Tribunal] failed to give proper consideration [to] the Appellants’ claims of an “implied threat” by not considering the “swimming pool incident” in the context of:

(1)    [The father]’s:

(a)    standing in the Hazara community;

(b)    public profile; and

(c)    previous dealings with the Kuchis; and

(2)    Kuchi culture of “long term revenge”.

3.    Rejection of Ground 13 of the Amended Application: Although purporting to deal with Ground 13 of the Amended Application, the learned [primary judge] in substance failed to do so because his Honour:

(1)    in effect treated Ground 13 as a challenge to the credibility finding rather in the terms pleaded; and

(2)    gave no consideration to the principles of law identified in para 119 of the Appellants’ written submissions (upon which the Appellants’ counsel relied below) in support of that ground.

4.    Rejection of Ground 13 of the Amended Application: Had the learned [primary judge] properly considered Ground 13 of the Amended Application his Honour should have upheld that ground and found that the [Tribunal] had committed a jurisdictional error. The learned [primary judge] erred in failing to do so.

5.    Rejection of Ground 14 of the Amended Application: Although purporting to deal with Ground 14 of the Amended Application, the learned [primary judge] in substance failed to do so because his Honour gave no consideration to the principles of law identified in paras 36 – 38 and 122 of the Appellants’ written submissions (upon which the Appellants’ counsel relied below) in support of that ground. In particular, the learned [primary judge] filed to address the law relating to “cultural considerations” referred to in paras 70 & 71 of the Appellants’ written submissions (upon which the Appellants’ counsel relied below).

6.    Rejection of Ground 14 of the Amended Application: Had the learned [primary judge] properly considered Ground 14 of the Amended Application his Honour should have upheld that ground and found that the [Tribunal] had committed jurisdictional error. The learned [primary judge] erred in law in failing to do so.

(emphasis added)

Argument and consideration

38    In support of the contention that there was no rational basis for the Tribunal to find that the youngest son was not telling the truth, the first complaint is that the primary judge did not explain his reasoning because he dealt with review ground 4 essentially in two sentences. It is argued that he should have considered the legal principles relating to ‘proper, realistic and genuine consideration’. If he had done so, the primary judge would have reached the conclusions that:

(1)    The [Tribunal] was required to (but did not) review the whole of the Appellants’ claims by a real and conscientious consideration of all relevant matters. See SZNTL v Minister for Immigration and Citizenship [2012] FCA 1040 at [37] per Nicholas J; Basile v Minister for Immigration and Citizenship … (2011) 193 FCR 329 at [28] – [29] per Tracey J; Khan v Minister for Immigration and Citizenship … (2011) 192 FCR 173 at [75] per Flick J.

(2)    It is important that the question of the truth of an account found to be inherently improbable is addressed and dealt with in the [Tribunal]’s reasons. See Gheisari v Secretary of State for the Home Department [2004] EWCA Civ 1854 at [16] per Thomas LJ.

(3)    The [Tribunal] must provide reasons as to why individual pieces of evidence were accepted or rejected on which findings were made. See SZMBA v Minister for Immigration and Citizenship [2008] FCA 1331 at [36] per Gilmour J.

(4)    It was a jurisdictional error for the [Tribunal] to reject the Appellants’ claims of a well-founded fear of persecution as a result of the “swimming pool incident” by reference to supposed inherent improbability. See HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 at [29] – [30] per Neuberger LJ (with whom Jacob LJ agreed) & [70] per Chadwick LJ; HA v Secretary of State for the Home Department [2007] ScotCS CSIH 65 at [14] & [17] per Lords Macfadyen, Nimmo Smith & Kingarth.

(5)    The [Tribunal]’s use of the word “implausible” does not preclude a reasonable finding of a real chance of persecution. See Applicant M164/2002 v Minister for Immigration & Multicultural [Affairs] [2006] FCAFC 16 at [111] per Tamberlin J.

(6)    There was a constructive failure to exercise jurisdiction because the [Tribunal] considered each of the facts put forward by the Appellants in isolation and without consideration of the cumulative weight of those facts. See Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401 at [11] – [12] per Moore J; Jegatheeswaran v Minister for Immigration and Multicultural Affairs … (2001) 194 ALR 263 at [48] per Finkelstein J; SJIWJ v Minister for Immigration and Multicultural Affairs [2006] FCA 1706 at [31] per Jacobson J.

39    The appellants contended that the legal principles relating to ‘irrational/illogical’ reasoning required the primary judge to address and grant the appellants relief on the basis of the matters raised in the particulars to the review ground because:

(1)    If illogicality or irrationality occurs at the point of satisfaction for the purposes of section 65 of the [Act], then this is a jurisdictional fact and a jurisdictional error is established. See Minister for Immigration and Citizenship … (2010) 240 CLR 611 at 643 [119] per Crennan & Bell JJ; MZXSA v Minister for Immigration and Citizenship … (2010) 117 ALD 441 at [42] & [44] per Keane CJ, Perram & Yates JJ.

(2)    The [Tribunal]’s weight and credibility determinations must be properly articulated. Minor inconsistencies and trivial errors do not constitute a valid ground upon which the [Tribunal] can find an asylum claim is not credible. See SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 at [25] – [26] per Gordon J

(3)    A bare assertion that the Appellants’ account was implausible is not enough to justify the [Tribunal] rejecting that account. See Esen v Secretary of State for the Home Department [2006] ScotCS CSHI 23; [2006] CSIH 23; 2006 SC 555 at [21] per Lords Abernethy, Nimmo Smith & Clarke citing W321/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 201 per Lee J; HA v Secretary of State for the Home Department [2007] ScotCS CSIH 65; [2007] CSIH 65 at [16] per Lords Macfadyen, Nimmo Smith & Kingarth.

(4)    Unwarranted assumptions as to matters relevant to formation of a view on credibility may constitute a failure to duly consider the question raised by the material put before the [Tribunal]. See WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs … (2002) 194 ALR 676 at [54] per Lee & RD Nicholson JJ. …

40    The appellants specifically advanced on appeal the argument that the Tribunal made an unwarranted cultural assumption as to how the appellants should have reacted to the armed Kuchi visit to the swimming pool complex. It was argued that actions which might appear implausible if judged by Australian standards might be perfectly plausible when considered in the context of the appellants’ social and cultural background. Reference was made to HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 (at [30]) per Neuberger LJ with whom Jacob LJ agreed.

41    It may be accepted, as argued for the appellants, that because something seems implausible by our standards, it may not necessarily be so in another culture. There are no indications, however, that the Tribunal made a wrong cultural assumption, even if it be assumed, as is common ground, that Pashtuns ‘have long memories’ and may continue to seek revenge many years into the future. Logically, however, there is no suggestion and certainly no evidence that they would be disinclined to take the opportunity to seek revenge sooner if it were presented to them.

42    The Tribunal found as a fact that the Kuchis or Taliban had no interest in the father and his family. The Tribunal found it difficult to believe that such a threat existed in circumstances where the father had returned from Behsud and opened a swimming pool complex in Kabul in 2009 and had conducted that in a public manner for several years without incident.

43    It was reasonable and plausible for the Tribunal to form the view that if there was a real desire for the Kuchis to kill the father or members of his family, there was ample opportunity to do so over those several years.

44    The conclusions fell well short of being irrational or improperly reached as contended for the appellants.

45    A factor of significance for the Tribunal was the questions that the Kuchis purportedly asked the youngest son. He gave evidence that the Kuchis had asked who the owner of the swimming pool was and where the father was by name. Although the Tribunal accepted the submissions for the appellants that the questions were not necessarily inconsistent, the Tribunal noted (at [132]) that if, as the father claimed, the Kuchis had come to the swimming pool to look for him, there would have been no need for them to ask who the owner was. On these factual findings, credibility reasoning and process of analysis, another Tribunal could possibly have reached another conclusion. Regrettably, however, for the appellants and for the reasons articulated by the primary judge (at [29] and [32]-[33]) they were simply not believed about this event at all. For a credit finding to be reversed, consistent with earlier decisions of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 and SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1, it would be necessary to conclude that no reasonable decision maker could possibly have come to the conclusion reached by the Tribunal. That is a high threshold in circumstances where the reasoning was explained in detail. It is not presently demonstrated.

46    The Tribunal concluded that the incident did not occur at all. The appeal ground must fail.

Appeal ground 2

47    The observations made above in relation to appeal ground 1 permeate throughout the grounds of appeal. Even accepting that the armed Kuchi visit had to be considered in context against a background of bitter rivalry and disputation, all of those matters were fully considered by the Tribunal as the primary judge observed. This ground cannot succeed.

Appeal ground 3 and ground 4

48    These grounds repeat many of the same matters. They have been dealt with above in the response to ground 1. There is no jurisdictional error made out. The grounds essentially seek merits review. It cannot be shown that the decision was arbitrary or capricious, irrational or absurd. The fact that another tribunal may have taken a more sympathetic view to the response by the appellants to the account of the alleged appearance of the armed Kuchis is not sufficient to disturb the conclusion reached.

Appeal ground 5 and ground 6

49    Again, these grounds press an alleged failure to take into account cultural considerations but this has been dealt with in my response to the previous grounds.

CONCLUSION AND ACKNOWLEDGEMENT

50    As no ground of appeal has been made out, the appeal must be dismissed with costs.

51    The appellants were ably and generously represented pro bono by Mr P Hannan of counsel. The Court is grateful for his assistance. The following orders are made:

1.    The title of the first respondent be changed to ‘Minister for Immigration and Border Protection’.

2.    The appeal is dismissed.

3.    The appellants to the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    6 December 2013