FEDERAL COURT OF AUSTRALIA

CRK15 v Minister for Immigration and Border Protection [2019] FCA 420

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Pakistan, appeals from a judgment of the Federal Circuit Court of Australia. The Federal Circuit Court dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal).

2    The appellant was given leave at the hearing to rely on an amended notice of appeal. In summary, the appellant’s three grounds of appeal are as follows:

(a)    The Federal Circuit Court erred by failing to find that the Tribunal’s decision was affected by jurisdictional error in that the decision was based on a finding that was irrational. In particular, the appellant contends that it was irrational for the Tribunal to rely on the appellant’s failure to join the Awami National Party (ANP) in Australia and his supposed lack of involvement with the ANP in Australia, in reaching a finding that the appellant had not had any involvement with the ANP or the Pukhtoon Student Federation (PSF) and had not been a member or supporter of the ANP or the PSF in Pakistan.

(b)    The Federal Circuit Court erred by failing to find that the Tribunal failed to conduct the review according to law, in that it failed to give the appellant a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. In particular, the appellant challenges the way in which the Tribunal dealt with his claim to have been attacked by two men in April 2013. The appellant contends that the Tribunal failed to engage with the evidence he gave at the hearing before the Tribunal.

(c)    The Federal Circuit Court, having found that the Tribunal failed to “engage in an active, intellectual evaluation of the evidence given at the hearing in relation to the April 2013 attack”, erred by finding that this did not constitute a failure of the Tribunal to perform its statutory task.

3    For the reasons that follow, none of these grounds is made out. It follows that the appeal is to be dismissed.

Background facts

4    The following statement of background facts is drawn substantially from the reasons for judgment of the primary judge (the Reasons).

5    The appellant is a citizen of Pakistan who arrived in Australia on 4 February 2009 as the holder of a student visa. On 5 February 2013, the appellant was granted a further student visa.

6    On 6 August 2013, the appellant lodged his application for the Protection (Class XA) visa. The principal basis of the appellant’s claim for a well-founded fear of persecution was his fear of being targeted by the Taliban for his imputed political opinion based on his involvement with the ANP and its aligned student group, the PSF. The appellant also made specific claims about an attack on him that occurred on 27 April 2013 as a result of his political activities, which he said was the catalyst for him fleeing to Australia. The appellant set out his claims in a statutory declaration dated 1 August 2013 and submitted with the visa application, which, in summary, were as follows:

(a)    the appellant was born in Buner, Khyber Pakhtunkhwha Province (KPK), Pakistan, and identifies as a Pashtun and a Muslim Sunni;

(b)    the appellant joined the PSF in 2002 while studying at Aisha Bawany College in Karachi, Pakistan. In 2003, the appellant joined the Government College of Commerce and Economics in Karachi, Pakistan, and continued his involvement in the ANP and the PSF working as an advisor, visiting students and teaching students about the aims of the ANP. The appellant was harassed by the Islamic Jamiat Tulba Party and All Pakistan Muhajar Student Organisation, who opposed his political work and were aligned with extremist groups and criminal gangs;

(c)    in 2007, the appellant returned to his village and continued to contribute time and money to the ANP during the lead up to a national election that was to take place in 2008. The appellant’s involvement included hanging up posters, handing out leaflets, speaking with people about the ANP and attending public forums with ANP leaders. The appellant’s involvement in the 2008 election campaign caused him problems as the Taliban would make threats against ANP members, supporters and leaders and became more influential in the area following the election. The appellant felt that it was dangerous for him to remain in the area and decided to come to Australia as a student;

(d)    in 2011, the appellant returned to Pakistan and spoke with members of the ANP about returning to the party and standing as a candidate for the ANP. However, the appellant wished to complete his education first and so returned to Australia, continuing to make financial contributions to the ANP and communicate with its members;

(e)    in 2013, the appellant returned to Pakistan to assist the ANP with an election campaign (the 2013 election campaign). The appellant’s involvement included attending rallies, accompanying ANP leaders to mosques, recruiting voters, fundraising, advising for the ANP and making speeches. Due to the appellant’s involvement with the ANP, the appellant again began receiving warnings from the Taliban who told him that he must stop campaigning or he would be killed. On 27 April 2013, the appellant was shot at by two men at the mechanics and he heard one of the men say that the appellant should take the threats against him by the Taliban seriously (the April 2013 attack). The appellant escaped and hid at a college near the mechanics and then fled to Islamabad for a few days before returning to Australia;

(f)    if the appellant was forced to return to Pakistan he would be seriously harmed or killed by the Taliban due to his political involvement with the ANP and association with “the West”. The Pakistani authorities are unable and unwilling to protect the appellant as the Taliban are more powerful than the Pakistani authorities and, in many instances, collaborate with the Pakistani authorities to perpetrate harm. The appellant cannot relocate within Pakistan as the Taliban has strong networks throughout the country; and

(g)    the appellant suffers from Post-Traumatic Stress Disorder (PTSD) for which he is currently receiving treatment. If forced to relocate from Australia, the Applicant would not be afforded adequate medical attention and would be vulnerable to harm. The appellant has no support networks or property in any other areas in Pakistan.

7    On 30 April 2014, the appellant’s legal representative provided further documentation to the Tribunal, including a medical certificate from DHQ Hospital Daggar Buner, a translated Certificate of Participation in a polio eradication program in 1995/1996, a translation of an ANP poster, a medical certificate from Coburg Family Medical Centre dated 7 May 2013, and a National Police Certificate dated 3 October 2013.

8    On 29 May 2014, a delegate of the Minister (the Delegate) refused to grant the appellant the visa.

9    On 17 June 2014, the appellant applied to the Tribunal for review of the Delegate’s decision, enclosing a copy of the decision. On 10 June 2015, the appellant was invited to attend a hearing before the Tribunal on 21 July 2015.

10    On 16 July 2015, the appellant’s legal representative lodged a submission in support of the appellant’s application for review and a medical certificate from Coburg Family Medical Centre dated 14 July 2015.

11    The appellant attended the Tribunal hearing on 21 July 2015 and gave evidence and made submissions with the assistance of an interpreter in the Pashto and English languages and his legal representative.

12    The appellant was given an opportunity to make further written submissions to the Tribunal by 28 July 2015 and did so.

13    The Tribunal identified the issue on review as follows (at [9]):

The issue in this case is whether the applicant has been politically involved, as claimed, and whether, on return to Pakistan, he would face a real chance or a real risk of harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14    The Tribunal then proceeded to set out the appellant’s claims by first noting his personal details and that (at [11]):

He claims to have been a member of the student wing of the ANP and then of the ANP, and to have assisted with elections.

15    The Tribunal then extracted in full the appellant’s statutory declaration dated 1 August 2013 (at [12]) and summarised the documents provided to the Tribunal as follows (at [13]-[15]):

13.    The applicant’s representative provided documents from the applicant. These included a medical certificate from the HW Hospital in Brno, a certificate for the applicant for participation in the national day of prevention from polio, 1995/1996, a poster of the ANP party including translation, and a letter from [Clinical Senior Social Worker], family therapist and clinical counsellor, Clinical Senior Social Worker, dated 7 May 2013, which stated that the applicant presented with severe symptoms of depression and anxiety, and the assessment highlighted that he had symptoms of PTSD as a result of receiving calls from Taleban threatening his life.

14.    The applicant provided three money transfers, from himself in Australia, to his brother in Pakistan.

15.    The applicant provided his Pakistani passport and identity card, as well as his Victorian drivers licence.

(Errors in original.)

16    The Tribunal considered the appellant’s claims that he suffered from PTSD and the assessments of a Clinical Senior Social Worker of Coburg Family Medical Centre, that the PTSD was a consequence of threats the appellant had received from the Taliban in Pakistan. In relation to the mental health of the appellant, the Tribunal concluded the following (at [24]):

On the basis of the evidence before me I accept that the applicant suffers from insomnia, palpitations, difficulty in concentrating and forgetfulness. However, I note that he has been prescribed medications for this since April 2013, and has been attending therapeutic sessions with [the Clinical Senior Social Worker] regularly. He has also continued work as a taxi driver and then as a security guard. I do not accept on the evidence before me that the applicant has been diagnosed with depressions, anxiety or PTSD, and I consider that he has received treatment including medication and therapeutic sessions. I accept that the symptoms recorded by the Doctor in Pakistan may be symptoms consistent with one or more of these diagnoses, but that is all. I specifically reject, on the evidence before me, that these symptoms are a result of the claimed attack, or that these symptoms explain my credibility concerns below.

17    The Tribunal then addressed the general approach to the question of the appellant’s credibility and said the following (at [28]):

This case raises considerable credibility concerns. The applicant’s evidence contained significant inconsistencies and implausibilities, the most significant of which I have set out here, which lead me to have considerable concerns with that evidence.

18    Under the heading “Political involvement”, the Tribunal commenced its consideration by stating as follows (at [29]):

The applicant gave unconvincing and vague evidence in relation to his political involvement with PSF and ANP. In addition, he has provided some documentary evidence in an attempt to establish his involvement, but there are considerable difficulties with the evidence he has provided, and he has not satisfactorily explained why he cannot produce an ANP membership card despite claiming to be a member.

19    The Tribunal described the appellant’s evidence in support of his claim that he had been actively involved with the PSF in Karachi from 2002 until his return to KPK in 2007 as “vague and undetailed” (at [30]). With respect to the appellant’s evidence about his involvement with the ANP, including the appellant’s claim that he assisted in the 2013 election campaign, the Tribunal said as follows (at [34]):

I noted to the applicant that his evidence in relation to his political involvement was vague and undetailed. I noted that he claimed to have been actively involved with the PSF and ANP for a considerable period of time. I noted that he claimed to have discussed potentially running as a candidate for the ANP. His description of what he did and what he would speak to students about, and then his involvement with the ANP in KPK indicates to me that the applicant is not recounting his experiences but repeating general information he is aware of about the PSF and ANP.

20    The Tribunal then noted “[f]urther concerns” with the Applicant’s evidence, which led the Tribunal to doubt the appellant’s claimed involvement with the PSF and the ANP (at [36]). The Tribunal’s concerns were as follows (at [37]-[42]):

(a)    the fact that the appellant did not have a membership card for the ANP, despite his claim that he had been and was still a member of the ANP (at [37], [39]);

(b)    the appellant’s lack of involvement in the ANP in Australia (at [39]); and

(c)    the appellant’s provision of copies of money transfer receipts sent to the appellant’s brother in Pakistan, which the appellant claimed were funds intended for the ANP (at [40]-[41]).

21    The Tribunal set out the evidence of the appellant in response to questions from the Tribunal member about the appellant’s involvement in the ANP in Australia as follows (at [38]):

I asked if he had joined the ANP in Australia. He said he had not, he knew the guys working here but didn’t join to be honest [as] he had already joined in Pakistan. I asked if he attended meetings of the ANP in Australia and he said he had not, sometimes he would go to gatherings or they would have a celebration or religious festival and come together and at that time have celebrations.

22    The Tribunal’s reasoning and findings regarding the appellant’s claims about his political involvement in the PSF and the ANP generally were set out at [42]:

When I raised my concerns with his evidence about his political involvement, he said that this was because of his health position, he is not stable. I noted to him that I had to assess on the evidence before me, and I had concerns I had raised with his claims that his mental health issues were responsible wholly or partly for his deficiencies in evidence. I have had regard to the letters above which detail the applicant's mental health. I am aware that the applicant complained of insomnia, difficulty in concentrating and forgetfulness to the Doctor in Pakistan, but I do not accept that this explains the concerns above. Further, he has received treatment in Pakistan and Australia for these symptoms, and has been able to continue working in Australia. The applicant was able to give very detailed information about other aspects of his claims, and he claims to have been involved with the student wing of the ANP, and then the ANP, for a considerable number of years, yet he is not able to provide more than general and undetailed information, and was unable to talk meaningfully about what he had done and said as an active member. When I consider this with the applicant’s poor documentary evidence – one poster which could easily have been obtained, and some money transfers which do not, I find, indicate what he claims they do, that he was contributing financially to the ANP, his lack of involvement with the ANP in Australia and his implausible explanation for why he does not have an ANP membership card, I have reached a positive state of disbelief that the applicant has had any involvement with the PSF or ANP. I find that the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support.

(Emphasis added.)

23    The Tribunal considered the appellant’s claims regarding the April 2013 attack under the heading “Claimed attack on 27 April 2013”. In this section, the Tribunal reasoned as follows:

43.    The applicant has claimed that he was attacked by two men on 27 April 2013 on his way to the mechanic. At the hearing the applicant gave a detailed account of the claimed attack. However, at the delegate interview, his responses were found to be rehearsed, limited to the phrasing used in his written statement and did not include the level of detail expected of someone who experiences such an event. He was unable to explain how he had escaped from the attackers. I noted to the applicant that I had concerns that he may have rehearsed his responses for the hearing.

44.    When these concerns were raised with the applicant he said that he was unable to describe this incident in detail to the delegate because just before that my his cousin was shot in Karachi, and that was a disappointing time for him, he was really upset. I asked if he had rescheduled the interview. He said that he did not wish to because he had been waiting too long for the interview. I asked what had happened to his cousin and he said somebody shot him, maybe a target killer or Taliban, they didn’t know. I note that the applicant has not provided any news reports or information about this claimed attack on his cousin.

45.    The submissions also make these arguments.

46.    I do not find the applicant’s explanations plausible. I do not have supporting evidence that the applicant’s cousin was shot immediately prior to the interview, but even if I accept that this occurred, the applicant did not seek an adjournment of the interview (and I do not accept, being represented then that he could not have received appropriate advice on seeking an adjournment or a further interview to clarify his claims), but I also do not accept on the evidence before me that the applicant grieving for his cousin would lead to the responses he gave at the interview, and I find that he gave these responses because this event has not happened to him.

47.    On the basis of my concerns with his evidence at the departmental interview, and independently on the basis of my findings that the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support, I find that the applicant was not attacked on 27 April 2013 or at any time.

(Errors in original.)

24    It is convenient at this point to set out the evidence the appellant gave at the Tribunal hearing in relation to the April 2013 attack. The Tribunal member posed to the appellant the question (in relation to the claimed April 2013 attack) “And what happened?” The appellant’s evidence was then as follows:

[Appellant]:    Shocking one. It was (indistinct) up there at (indistinct) it was around 10 o’clock in the morning. My car was broken. My car was broken and I was trying to take it to the mechanic.

…

[Appellant]:    And as usual I wake up early in the morning and tranquil – I was waiting for the mechanic but when (indistinct) the mechanic (indistinct) for a long time I was, like, thinking that someone is calling me, someone is calling me.

[Tribunal Member]:    This is in your village?

[Appellant]:    Yeah. It’s in my village when I was going towards the mechanic. But I ignore it all the time. Like, because all the time, every week, if someone is driving – if someone is riding a motorbike, so they are not – all they time they cover their face, so I don’t know what’s happening around me. Maybe because of when, because of dust, someone covered their face or – because no-one using helmet. It is usual here but not in Pakistan, which there maybe in the cities someone is using but not in the village, no-one is using helmet. So I was going (indistinct) to the mechanic and when I’m about to reach there, they fired on. I was sitting – I was just (indistinct) by myself. I was just – I was driving by myself and the fight from the other side – from the opposite side. So luckily I was safe.

When they inquired, I heard something that the girl was asking him, “You didn’t take us serious. You should die now,” and I ran – I ran (indistinct). Then I run and hide in the college, which is nearby this place, just one-minute walk or just, you know, the …

[Tribunal Member]:    So explain to me, so you’re driving to the mechanic’s.

[Appellant]:        Yeah.

[Tribunal Member]:    And what happens? Did you get to the mechanic’s?

[Appellant]:        Yes, on the (indistinct) nearby – nearby.

[Tribunal Member]:    So did you get there or you didn’t get there?

[Appellant]:        I didn’t get there.

[Tribunal Member]:    Okay. So …

[Appellant]:        But, like, I was about to get there.

[Tribunal Member]:    You were about to get there?

[Appellant]:        Yes.

[Tribunal Member]:    And then what happened?

[Appellant]:    There was two people on the bike. The one that was sitting at the back, he fired on me.

[Tribunal Member]:    On a motorbike.

[Appellant]:        Yes.

[Tribunal Member]:    So where were you?

[Appellant]:        I was in the car.

[Tribunal Member]:    You were in the car.

[Appellant]:        Yeah.

[Tribunal Member]:    And where were they?

[Appellant]:    He was on the opposite side. Like my friend Aziz is sitting over here.

[Tribunal Member]:    So they shot at you into the car.

[Appellant]:        Yes.

[Tribunal Member]:    What happened then?

[Appellant]:    I opened my door and fired down intentionally. Fired down intentionally, like, that they shot me intentionally. They shot me and then straightaway they run away. When I saw they are running on their motorbikes, so I run backwards. I run backwards to the bodies and I hide, you know, because it was Saturday but on Saturday in Pakistan we have no holidays so the (indistinct) and there was lots of women in there. Then I called my dad.

[Tribunal Member]:    Yeah.

[Appellant]:    Then I called my dad and he made the arrangement for me to take (indistinct) from there my home and then to the doctor. Then he made arrangement for me to send me to Islamabad. I was in Islamabad for a couple of days. I was (indistinct) I didn't went outside, except when I was coming here.

[Tribunal Member]:    Mm’hm.

[Appellant]:    I was just hiding, hiding for three days because one of my relatives was studying at that time in Islamabad and, no, he didn’t work. He was (indistinct) at that time. He was doing MBA from college. So I stayed with him. When my time for the departure comes, I fly back from (indistinct)

[Tribunal Member]:    They were next to your car?

[Appellant]:        Yeah.

25    The Tribunal then considered whether the appellant would face harm on return to Pakistan by reason of his political opinion; his status as a failed asylum seeker or returnee from a Western country; or his mental health (at [48]-[55]). It found that there was no real risk that the appellant would be significantly harmed for those reasons or for any other reason (at [56]-[58]). In reaching this conclusion, the Tribunal considered country information (at [52]-[54]) that specifically addressed the situation in KPK.

26    For the reasons set out earlier in its decision record, the Tribunal found that the appellant did not satisfy the criterion set out in s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (at [59]-[60]). As the Tribunal was also satisfied that there was no basis upon which it could be said that the appellant was a member of the same family unit as a person who did satisfy s 36(2)(a) or 36(2)(aa) for the purpose of the appellant satisfying s 36(2)(b) or 36(2)(c), the Tribunal found that “…the applicant [did] not satisfy the criterion in s.36(2)” (at [61]), which the appellant was required to do in order to justify a grant of the visa.

The proceeding in the Federal Circuit Court

27    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant was represented by counsel at the hearing in the Federal Circuit Court. The appellant’s amended application contained three grounds of review, but the appellant did not press the third ground (see the Reasons at [26]). The two remaining grounds were, in summary, as follows:

(a)    Ground 1: The decision of the Tribunal was affected by jurisdictional error in that the decision was based on a finding for which there was no evidence before the Tribunal or, alternatively, a finding that was irrational. This ground focussed on the Tribunal’s reliance on the appellant’s failure to join the ANP in Australia and his supposed lack of involvement in the ANP in Australia in reaching its finding that the appellant had not had any involvement with the ANP or PSF and had not been a member or supporter of the ANP or PSF in Pakistan.

(b)    Ground 2: The Tribunal failed to conduct the review according to law, in that it failed to give the appellant a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. This ground related to the appellant’s claim to have been attacked by two men in April 2013 and the way in which the Tribunal dealt with the appellant’s evidence in relation to this claim.

28    The primary judge noted, at [28], that the first ground of judicial review had two components. The first component was based on a “no evidence” contention. The second component alleged that the findings of the Tribunal were irrational or illogical. The primary judge dealt separately with each of these components.

29    In relation to the “no evidence” contention, the primary judge accepted the Minister’s submission that for an applicant to establish that the Tribunal fell into jurisdictional error by making a finding based on a “no evidence” ground it must be a finding in relation to a jurisdictional fact (see the Reasons at [30]-[33]). The primary judge found, at [53], that there was evidence or material before the Tribunal to justify its finding about the appellant’s lack of involvement with the ANP in Australia.

30    Although the primary judge disposed of the “no evidence” component of ground 1 on the basis set out above, her Honour went on to consider the materiality of the finding about the appellant’s lack of involvement with the ANP in Australia. The primary judge stated, at [55], that in the event it was necessary to consider whether, in the absence of the Tribunal’s finding about the appellant’s lack of involvement with or in the ANP in Australia, the Tribunal would have reached its state of satisfaction with respect to the appellant’s claims to fear persecution, she was satisfied that the Tribunal’s positive disbelief that the appellant was involved in the ANP in Pakistan, as claimed by the appellant, would not have changed. Her Honour provided reasons for this conclusion at [56]-[58]:

56.    My view is based on the fact that the Tribunal’s disbelief or lack of satisfaction arose primarily from its concerns about the Applicant’s vague and undetailed evidence regarding his involvement in the ANP and the PSF in Pakistan. The Tribunal rejected the Applicant’s explanations for the deficiencies in his evidence about his political involvement in the ANP and the PSF on the basis of the Applicant’s mental health. The inability of the Applicant to produce a membership card for the ANP, the question of money transfer receipts the Applicant claimed to have sent to his brother in Pakistan to financially contribute to the ANP, and the Applicant’s “lack of involvement in the ANP in Australia” were expressed as “further concerns” (CB 234 at [36]) that the Tribunal had with the Applicant’s evidence. In my opinion, it is evident that the Tribunal treated these matters as additional concerns to its primary concern that, in the context where the Applicant claimed to have been heavily involved with the PSF, to have been an active member and supporter of the ANP, to have assisted the ANP with campaigns and elections, and to have been a potential candidate for the ANP, the Applicant’s evidence about his involvement in both organisations was limited, vague and lacking in detail.

57.    This primary concern is also evident from the way in which [42] of the Tribunal’s decision record is expressed (CB 234-235 at [42]). The Tribunal notes that the Applicant was able to give very detailed information about other aspects of his claims but was unable to provide more than general and undetailed information or talk meaningfully about his involvement with the ANP. The Tribunal then goes on to state the following (CB 235 at [42]):

42.    …When I consider this with the applicant’s poor documentary evidence…his lack of involvement with the ANP in Australia and his implausible explanation for why he does not have an ANP membership card, I have reached a positive state of disbelief that the applicant has had any involvement with the PSF or ANP.

(Emphasis in original.)

58.    In my opinion, the three matters the Applicant identifies as a basis for the Tribunal’s finding or reaching a state of satisfaction with respect to the Applicant’s claims to fear persecution on the basis of his political involvement, that is, the inability of the Applicant to produce a membership card for the ANP, the question of money transfer receipts the Applicant claimed to have sent to his brother in Pakistan to financially contribute to the ANP, and the Applicant’s “lack of involvement in the ANP in Australia”, were, in reality, no more than three additional concerns to the Tribunal’s primary concern about the Applicant’s vague evidence and inability to talk meaningfully about his involvement with the ANP and the PSF in Pakistan.

31    Accordingly, the primary judge rejected the first component of ground 1.

32    In relation to the second component of ground 1, the primary judge summarised the appellant’s submissions at [60] of the Reasons. As there set out, the appellant submitted that it was self-evidently illogical to expect someone to join an entity in a country that he had already claimed to be a member of and to then, in turn, draw an inference that his failure to do so supported a finding that he had never been involved in that entity anywhere else in the world. The appellant also submitted that a logical connection was lacking between the asserted lack of the appellant’s involvement with the ANP in Australia and a subsequent finding that the appellant had, therefore, never been active with the ANP in Pakistan.

33    The primary judge considered this component of ground 1 at [65]-[74] of the Reasons. After referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [135] and SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [63]-[66], the primary judge rejected the appellant’s characterisation of the Tribunal’s reasoning for its finding that the appellant had not been involved in the ANP or the PSF in Pakistan. The primary judge’s reasons were, in summary, as follows. First, it could not be said that the Tribunal expected the appellant to have joined the ANP in Australia when he was already a member of the ANP in Pakistan. Secondly, it was incorrect to assert that the Tribunal drew an inference that the appellant’s failure to join the ANP in Australia supported a finding that the appellant had never been involved in the ANP in Pakistan. Thirdly, it was incorrect to assert that the Tribunal reasoned from the appellant’s lack of involvement in the ANP in Australia that the appellant had also never had any involvement in the ANP or the PSF in Pakistan. The primary judge rejected the submission that the Tribunal’s finding was illogical. The primary judge reasoned at [69]-[71]:

69.    I reject the Applicant’s further submission that it was illogical of the Tribunal to use a finding that the Applicant was not involved in political activities with the ANP in Australia to support a subsequent finding that the Applicant had also never been involved with the ANP or the PSF in Pakistan. Again, this argument put by the Applicant mischaracterises the Tribunal’s reasoning. I have earlier found that the Tribunal relied on four matters to reach its positive disbelief about the Applicant’s claims that he was actively involved in the ANP and the PSF in Pakistan (see [42] above). The primary reason was the Tribunal’s concern about the Applicant’s evidence in relation to his claimed involvement in those organisations. I refer to and repeat [56]-[59] of my reasons above.

70.    In circumstances where a decision or, as in this case, a state of satisfaction was reached by the Tribunal on the basis of other reasoning that was logical and rational, there may be no basis for concluding that the finding or state of satisfaction was infected by the impugned finding (see SZWCO at [64]). No complaint is raised by the Applicant regarding the other three findings of the Tribunal. Consequently, even if I had found that the Tribunal’s finding regarding the Applicant’s “lack of involvement in the ANP in Australia” was illogical, because of the other findings upon which the Tribunal reached its state of satisfaction that the Applicant did not meet the criterion in s.36 of the Act, I would not find that the decision of the Tribunal was affected by jurisdictional error.

71.    Furthermore, I agree with the submission made by Counsel for the Minister that, having regard to the Applicant’s claims or integers of claim about the extent of his involvement in the ANP and commitment to political activity in Pakistan, it was not illogical for the Tribunal to have regard to any evidence about the Applicant’s involvement in the ANP in Australia. The relevance of the Applicant’s involvement in the ANP in Australia was perhaps something about which reasonable minds could differ, however, it cannot be said that the only conclusion to be drawn was that it was not relevant to the Tribunal’s statutory task on review.

34    Accordingly, the primary judge rejected the second component of ground 1.

35    In relation to ground 2 (namely, that the Tribunal failed to give the appellant a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review), the primary judge set out the appellant’s submissions at [76] of the Reasons. The primary judge set out, at [77], the extract from the appellant’s evidence at the Tribunal hearing that has been set out at [24] above.

36    The primary judge’s consideration of ground 2 was set out at [79]-[89] of the Reasons. After referring to SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 at [70]-[71], the primary judge stated at [80]-[84]:

80.    The Applicant’s submissions are largely in relation to evidence given by the Applicant at the Tribunal hearing. I am satisfied that the Tribunal did not engage in an active, intellectual evaluation of the Applicant’s evidence given at the hearing in relation to the April 2013 attack. The Tribunal simply noted that there was a difference between the amount of detail provided by the Applicant about the April 2013 attack at his interview with the Delegate and that provided at the Tribunal hearing. The Tribunal then rejected the Applicant’s explanation for his more limited evidence given at the interview with the Delegate (CB 235 at [43]-[44], [46]).

81.    Reading the reasoning of the Tribunal at [43]-[44] of the decision record (CB 235 at [43]-[44]), one is left wondering precisely what evidence the Applicant gave at the Tribunal hearing. The failure of the Tribunal to even summarise the evidence given by the Applicant at the Tribunal hearing supports an inference that the Tribunal did not actively engage in that evidence.

82.    Of course, the Tribunal was not required to engage in the assessment of the relevant evidence in any particular style or manner. This was for the Tribunal to decide. The difficulty is that the Tribunal did not engage in that evidence at all.

83.    The Minister’s submissions (set out at [78] above) do not overcome the fact that the Tribunal did not engage at all with the Applicant’s evidence given at the Tribunal hearing regarding the April 2013 attack. Indeed, the Minister’s submission that the Tribunal rejected the Applicant’s claim that he was attacked in 2013 by reason of the limited evidence the Applicant gave at his interview with the Delegate reinforces the conclusion that the Tribunal did not properly engage with the Applicant’s evidence at the Tribunal hearing.

84.    Furthermore, I do not accept that it can be inferred from the Tribunal’s statement at [43] of its decision record, “…[a]t hearing the applicant gave a detailed account of the claimed attack…” (CB 235 at [43]), that the Tribunal disclosed the requisite intellectual engagement with the Applicant’s evidence. The statement was immediately followed by a statement contrasting the evidence given by the Applicant at the Tribunal hearing with the Delegate’s findings about the evidence given by the Applicant at his interview. That is, it was, in reality, part of the Tribunal’s reasoning regarding its concern that the evidence given at the Tribunal hearing by the Applicant was more detailed than that given by the Applicant at his interview with the Delegate.

37    The primary judge then stated, at [85], that the appellant’s claim that he was attacked in 2013 in Pakistan was directly connected with his claim that he was actively involved with the ANP in Pakistan, referring to the context in which the claim that he was attacked was made. The primary judge referred to Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [65]-[68] and then stated at [87]-[88]:

87.    The relevant question is not whether or not the Tribunal actively engaged with the Applicant’s evidence but whether the Tribunal performed its statutory task in determining the Applicant’s claim. The Applicant’s claim to fear persecution if he was returned to Pakistan was based on his claim regarding his active and ongoing involvement with the ANP in Pakistan prior to leaving Pakistan for Australia. The Tribunal dealt with this claim. In my opinion, the fact that the Tribunal failed to actively and intellectually engage with the evidence given by the Applicant at the Tribunal hearing about the April 2013 attack in Pakistan does not mean that the Tribunal failed to perform its statutory task. The evidence about the April 2013 attack in Pakistan depended upon the evidence about the Applicant’s claims to have been actively involved in the ANP in Pakistan. The Tribunal properly dealt with that claim (see [56]-[59] above).

88.    I agree with the submission made by Counsel for the Minister that the Tribunal did not confine its consideration of the claimed April 2013 attack to the enlargement of the Applicant’s evidence at the Tribunal hearing. At [47] of the Tribunal’s decision record (CB 235 at [47], relevantly extracted at [78](c) above), the Tribunal made it plain that it rejected the Applicant’s claim that he was attacked in April 2013 because of its rejection of the Applicant’s claim he was an active member and supported of the ANP and the PSF in Pakistan.

38    Accordingly, the primary judge concluded that ground 2 did not give rise to jurisdictional error.

The appeal to this Court

39    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The grounds in the appellant’s amended notice of appeal have been summarised at [2] above.

40    The Minister was given leave at the hearing to rely on a notice of contention filed out of time. By the notice of contention, the Minister contends that the judgment of the Federal Circuit Court should be affirmed on the ground that, in summary, the Tribunal did not fail to consider the evidence that the appellant gave at the Tribunal hearing about the 2013 attack.

Consideration

41    It will be convenient to consider grounds 2 and 3 together and to consider the notice of contention in the course of considering these grounds.

Ground 1

42    By this ground, the appellant contends that the Federal Circuit Court erred by failing to find that the Tribunal decision was affected by jurisdictional error, in that the decision was based on a finding that was irrational.

43    The appellant’s submissions can be summarised as follows:

(a)    The Tribunal at [42] stated that it had reached a positive state of disbelief that the appellant had had any involvement with the PSF or ANP, and found that the appellant had not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor had he assisted with campaigns or elections or provided financial support. That “positive state of disbelief” was expressed to be based on four matters, one of which was the appellant’s “lack of involvement with the ANP in Australia”.

(b)    The Tribunal’s finding regarding the appellant’s lack of involvement in the ANP in Australia was, in part, the result of illogical reasoning on the part of the Tribunal. The Tribunal evidently expected the appellant to have joined the ANP in Australia, despite his claim to have already been a member of the ANP, having joined in Pakistan. That is, the Tribunal treated the appellant’s failure to join an organisation of which he was already a member as a factor in finding that the appellant had never been involved in that organisation at all.

(c)    Further and alternatively, the Tribunal’s treatment of its finding regarding the appellant’s lack of involvement in the ANP in Australia as logically probative of its “positive state of disbelief” that the appellant had ever been a member of the ANP in Pakistan was itself irrational.

(d)    In SZMDS, Crennan and Bell JJ held, at [135], that a decision will be irrational “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”.

(e)    In this case, the Tribunal itself specified, pursuant to s 430 of the Migration Act, the four intertwined reasons that were integral to the Tribunal’s reasoning for the critical finding at [42] that the appellant had never had any involvement with the ANP or PSF in Pakistan. It follows that if one of those bases is found to be the result of illogical or irrational reasoning, the conclusion cannot stand. The Tribunal could have expressed its conclusion as being reached independently for one reason and reinforced by others, but did not do so.

(f)    The Federal Circuit Court reasoned at [69]-[70] of the Reasons that the impugned finding of the Tribunal was not the main reason given for its ultimate finding and therefore the decision would not give rise to jurisdictional error even if the impugned finding was irrational. That reasoning is erroneous, as it cannot be said, on the basis of the Tribunal’s own structure of its reasons, that it would undoubtedly have reached the same conclusion if the irrationally reached finding was removed.

44    Insofar as the appellant submits that the Tribunal relied on the fact that the appellant had not joined the ANP in Australia, I do not consider this to reflect the Tribunal’s reasons. The Tribunal at [38] noted that it had asked the appellant if he had joined the ANP in Australia and that he had answered that he had not. However, the Tribunal subsequently referred, at [42], to the appellant’s “lack of involvement with the ANP in Australia”. Accordingly, I do not accept the appellant’s submission that the Tribunal expected the appellant to have joined the ANP in Australia.

45    I accept that, in concluding that the Tribunal had a “positive state of disbelief” that the appellant had any involvement with the PSF or ANP, the Tribunal referred (at [42]) to four matters, one of which was the appellant’s “lack of involvement with the ANP in Australia”. However, I do not accept that it was irrational in the sense described in SZMDS at [135] for the Tribunal to have regard to this as one of the four matters. The appellant’s claims were based on extensive involvement with ANP in Pakistan over many years. In his statutory declaration dated 1 August 2013, the appellant referred to his involvement in the 2008 election campaign. He said that he contributed his time and funds to the ANP and that he worked as an “advisor, informer and fundraiser”. The appellant stated that he left Pakistan after the election as it was dangerous to remain in the area. He stated that he returned to Pakistan in 2011 and during that time he spoke to members of his party “about returning and standing as a candidate for the ANP Party”. This was because he “desired to assist [to] create change for my country”. The appellant stated that he returned to Pakistan in February 2013 to assist the ANP with the election campaign. He stated that he had “been making financial contributions and had also been communicating with members of the ANP Party while living in Australia”. He stated that when he arrived back in Pakistan he began to attend rallies, accompanied leaders to visit mosques, assisted recruitment of voters, fundraised for the party and made speeches. Thus, the appellant was presenting a claim to have had significant involvement in and commitment to the ANP in Pakistan. I consider that in this context, it was open to the Tribunal, in assessing the veracity of the appellant’s claims, to consider whether and, if so, the extent to which the appellant had been involved in the ANP in Australia (assuming that the party had some presence in Australia).

46    Further, even if (contrary to the above), the reliance on the appellant’s lack of involvement with the ANP in Australia was irrational, I do not consider the finding to have been material (see, eg, Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 at [2]-[4], [45]-[46]). It is true that, in reaching a “positive state of disbelief” that the appellant had had any involvement with the PSF or ANP (at [42]), the Tribunal relied on four matters and the lack of involvement with the ANP in Australia was one of these matters. However, the primary matter relied on by the Tribunal was that, despite claiming to have been involved with the student wing of the ANP, and then the ANP, for a considerable number of years, the appellant was “unable to provide more than general and undetailed information”, and was “unable to talk meaningfully about what he had done and said as an active member”. After referring to this matter, the Tribunal then referred to three other matters, namely poor documentary evidence, the lack of involvement with the ANP in Australia, and the appellant’s “implausible explanation for why he does not have an ANP membership card”. The earlier discussion of these three matters, commencing at [36], had been introduced with the description that they were “[f]urther concerns”. Read in context, the three other matters relied upon by the Tribunal at [42] were in substance additional concerns to the Tribunal’s primary concern about the appellant’s vague evidence and inability to talk meaningfully about his involvement with the ANP and the PSF in Pakistan. Thus, I agree with the primary judge’s analysis at [55]-[58] of the Reasons.

47    For these reasons, ground 1 is not made out.

Grounds 2 and 3

48    Grounds 2 and 3 relate to the way in which the Tribunal dealt with the evidence the appellant gave at the Tribunal hearing in relation to the April 2013 attack. By ground 2, the appellant contends that the Federal Circuit Court erred by failing to find that the Tribunal failed to conduct the review according to law, in that it failed to give the appellant a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. By ground 3, the appellant contends that the Federal Circuit Court erred by finding that the Tribunal’s failure to “engage in an active, intellectual evaluation of the evidence given at the hearing in relation to the April 2013 attack” did not constitute a failure of the Tribunal to perform its statutory task.

49    The critical passage of the Tribunal’s reasons is at [43]-[47]. This passage has been set out above. The Tribunal contrasted the detailed account of the April 2013 attack given by the appellant at the Tribunal hearing with the limited account given at the Delegate interview. The Tribunal referred to the evidence the appellant gave at the Tribunal hearing by way of explanation for not having given a more detailed account at the delegate interview, but did not refer to or analyse the evidence the appellant gave at the Tribunal hearing about the attack itself. In my view the primary judge was correct to conclude, at [80]-[84] of the Reasons, that the Tribunal did not engage in an active, intellectual evaluation of the appellant’s evidence given at the Tribunal hearing in relation to the April 2013 attack.

50    However, no error is shown in the primary judge’s conclusion, at [87]-[88] of the Reasons, that the Tribunal did not fail to perform its statutory task. At [47] of its decision, the Tribunal stated that it rejected the appellant’s account of the April 2013 attack “independently on the basis of my findings that the applicant has not been a member or supporter of the PSF or the ANP, nor a potential candidate or leader, nor has he assisted with campaigns or elections or provided financial support”. The appellant’s claim in relation to the April 2013 attack was inextricably connected with his claims based on political involvement. In particular, in his statutory declaration dated 1 August 2013 (set out in the Tribunal’s decision at [12]) the April 2013 attack was described in a paragraph that commenced with the sentence: “Given my involvement in the ANP election campaign, I began receiving warning from the Taliban.” It was thus open to the Tribunal to reject the appellant’s account of the April 2013 attack on the basis of its earlier findings regarding the appellant’s claimed political involvement. In the circumstances, I am not satisfied that the error of the Tribunal was material. As the primary judge stated at [88] of the Reasons, the Tribunal did not confine its consideration of the claimed April 2013 attack to the enlargement of the appellant’s evidence at the Tribunal hearing; at [47] of the Tribunal’s decision, the Tribunal made it plain that it rejected the appellant’s claim that he was attacked in April 2013 because of its rejection of the appellant’s claim that he was an active member and supporter of the ANP and PSF in Pakistan.

51    For these reasons, grounds 2 and 3 are not made out. It also follows from the above that I reject the Minister’s notice of contention.

Conclusion

52    For the above reasons, the appeal is to be dismissed. At the hearing, both sides accepted that costs should follow the event. Accordingly, I will also order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.

Associate:

Dated:    26 March 2019