FEDERAL COURT OF AUSTRALIA

ADU18 v Minister for Home Affairs [2020] FCA 366

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) delivered on 29 November 2018 which dismissed the appellant’s application for review of a decision of the Immigration Assessment Authority (the Authority) dated 14 December 2017 in which a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection visa was affirmed.

Background

2    The appellant is a citizen and national of Afghanistan. He arrived in Australia on 3 February 2013 as an unauthorised maritime arrival.

3    He was born in the Muqur District of the Province of Ghazni in Afghanistan. Prior to leaving Afghanistan he had lived in the same village all his life. He claims to be of the Hazara ethnic group and a Shia Muslim. He speaks Hazaragi as well as Pashto, another local language.

4    Since being released from detention in February 2013 he has resided in Brisbane.

5    On 18 April 2016 he applied for a Temporary Protection (Subclass 785) Visa. His application was refused by a delegate of the Minister on 28 February 2017 and, as the delegate’s decision was a fast track reviewable decision, it was referred to the Authority for review pursuant to s 473CA of the Migration Act 1958 (Cth) (the Act).

Decision of the Authority

6    In the course of its lengthy consideration of the decision under review the Authority first made a number of findings concerning the appellant’s background. It accepted that he was an Afghani national (at [12]), and had lived in the Muqur district all his life (at [16]). Although he was generally uneducated he was nevertheless intelligent and articulate (at [14]). Whilst the Authority expressed concern as to various inconsistencies in his evidence as to his employment over the years, it generally accepted that whilst he worked casually as a labourer from time to time, he usually worked in his parent’s store which specialised in the sale and distribution of agricultural product (at [21]). The Authority also accepted that whilst he was Hazara and a Shia Muslim he was not a practising Shia (at [25]). Whilst he spoke Hazaragi, amongst other languages, it concluded that he did not have the appearance of an ethic Hazara (at [28]). It further accepted that his parents were killed in a rocket attack in 2010 (at [50]). The attack was apparently indiscriminate and had been instigated by the Taliban.

7    The appellant’s evidence given to the delegate concerning the events after the rocket attack, including whether he attended his father’s funeral or not, was identified by the Authority as being inconsistent, vague and not credible. Similarly, the Authority did not accept as being credible his assertions as to his inability to contact his siblings after an alleged further rocket attack (at [44]).

8    The appellant was also questioned about sending money to Indonesia (he having passed through Indonesia on his way to Australia) and the Authority found his evidence as to whom he was sending money and the reasons for it to be deliberately misleading and obfuscatory, and that this undermined his credibility (at [45]–[46]).

9    He had given evidence to the delegate that he was forced to leave Afghanistan because he was a Shia and, as such, had been targeted by Sunnis. He also claimed to have been targeted by the Taliban for being Hazara. In the latter respect, he claimed that on six occasions the Taliban had visited his store and assaulted him. However, in the course of his visa interview he acknowledged that he had not personally faced difficulties and nor had anyone in his family encountered problems because he was a Shia Hazara living in Afghanistan. The Authority considered the appellant’s failure to mention in his visa interview what he said were threats against him or his family disclosed a lack of credibility. It determined that neither he nor his family were targeted or harmed because of their ethnicity or faith, nor were they prevented from practising their religion (at [48]).

10    After assaying the range of inconsistencies and changes in the appellant’s evidence, the Authority concluded that, considered cumulatively, they strongly indicated that he was neither credible nor a witness of credit (at [49]). As a result, although it accepted that his parents were killed in 2010 in an indiscriminate rocket attack, it did not accept any of the other claims including that his siblings were involved in a second rocket attack and were missing. It found that neither he nor his family had ever faced harm on the basis of their religious and ethnic profile and that none had any adverse profile or faced any direct harm because of their ethnicity and religion (at [52]).

11    At [53] of its reasons the Authority said:

In terms of the applicant’s return to the country, when having regard to the evidence and information before me, I find the applicant would return to live and work in his family’s [agricultural products] business in his home area in Muqur District in Ghazni Province. As above, I have not accepted he or his family were targetted, threatened or otherwise harmed by the Taliban in the course of his business, or otherwise, in his home area. I consider these claims were untrue and designed to strengthen his claims to be owed protection. I consider that the family business is likely still ongoing. I consider that business is low level, and low profile, and not of interest to any person or group outside his home area. While there are risks to persons working with the government and the international community, I have no reason to find that the applicant would face any chance or risk of harm in working for a local [agricultural products] business on his return to the country. I find there is no real chance of the applicant being seriously harmed in connection with his work and family business in his village in Muqur.

12    The Authority also found that as the appellant would be returning to Afghanistan as a non-practising Shia Muslim, he would not be at risk of attacks from Sunis, the Taliban or Islamic State in the Ghazni Province (at [54]). Such attacks may have increased or escalated in Kabul and other areas of Afghanistan, but the Country Information did not indicate any corresponding escalation in the district where he lived. The Authority was also satisfied there was no real chance of the appellant being seriously harmed on the basis of his Shia faith in his home area. It was not satisfied that ethnic targeting of Hazaras was a feature of the security environment in the Muqur District (at [55]). Although it accepted that insurgents operated in various districts in the Ghazni Province, the Country Information did not indicate that Hazaras (or Shias) were systematically targeted for harm or that there was a real chance or real risk of the appellant being seriously harmed on the basis of his ethnic or religious profile in that area. The persons or groups that were at risk from insurgents were persons involved with the government, the military, the media and the international community. The appellant did not have any links to any of these organisations and had no higher profile beyond his ethnic and religious background (at [56]).

13    The Authority then turned its attention to the existence of any risk to the appellant as a Hazara whilst travelling on the roads within the Ghazni Province (at [57]–[62]). It noted that in 2014 and 2015 there were some incidents involving Hazara Shias travelling and that, at that time, they may have faced a greater risk than any other ethnic group. However, that risk was generally faced for Hazaras travelling to and from the Hazarajat. In its consideration of this issue the Authority gave weight to the fact there had been no further reports of abductions of Shia Hazaras or other persons within Ghazni Province or in Kabul in 2016 and 2017. It also observed that the appellant had no pressing need to travel to Kabul. While the Authority accepted the Taliban was active in the appellant’s home area, it was not seeking to target Hazaras or Shias in Muqur. It concluded that the chance of the appellant being involved in an incident or attack on the roads or put at additional risk because of his ethnic or religious profile was remote. At [63] of its reasons for decision it said:

Based on all the information before me, if the applicant was to return to live in his home area in Ghazni, I consider the chance of the applicant suffering serious harm in religious or ethnically motivated violence from Islamic State, the Taliban or any other insurgent group to be remote. Accordingly, I am satisfied there is not a real chance the applicant would face serious harm in his home area in Ghazni on the basis of his religious and ethnic profile, as a Shia Hazara.

14    The Authority was not satisfied there was any real chance that any ethnic or religious tension or discrimination would threaten the appellant’s capacity to subsist or earn a livelihood, or expose him to any circumstances which would constitute serious harm. As a result, he did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and nor did he meet the requirements of s 36(2)(a).

15    For similar reasons the Authority concluded that he did not satisfy the requirements of s 36(2)(aa) of the Act such that there was no basis on which to grant a protection visa on the complementary protection grounds.

Proceedings before the FCC

16    The appellant filed an application for judicial review to the FCC on 11 January 2018. It was heard and determined on 29 November 2018. The primary judge dealt with the grounds of review in the following way.

17    The first ground agitated was that the Authority had failed to consider the appellant’s claims that the rocket which had killed his parents had been fired by the Taliban and that in the area where he lived rockets were fired every day. The primary judge held that the Authority had considered these matters in the course of the generalised discussion of the appellant’s inconsistent and shifting evidence. His Honour was of the opinion that the Authority had rejected the allegations as part of its credibility finding. The primary judge also held that in the assessment of any risk to the appellant it was reasonable for the Authority to have assumed the appellant would return to Muqur in the Ghazni Province should he return to Afghanistan.

18    Ground two before the FCC was that the Authority had failed to consider the appellant’s claim that he would have to travel on roads around the Muqur district and elsewhere to procure supplies for his business. The primary judge ruled that there was no evidence that these matters were not considered and it was not necessary for the Authority to refer to each and every part of the reasoning process. In support of that his Honour relied upon the oft quoted passage in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (WAEE) at 604–605 [47] per French, Sackville and Hely JJ. Further, the primary judge found the Authority had considered the risks to the appellant were he to return to Afghanistan and, in particular, his safety on roads in the Muqur district in Ghazni. Accordingly, his Honour found there was no merit in this ground either.

19    The third ground was that the Authority had failed to consider information which it was required to do under s 473DB of the Act, that districts such as the Muqur district were not safe due to the presence of the Taliban and that it had been reported in January 2016 that the Muqur district was under direct threat from that organisation. The primary judge held that even though the Authority may not have set out in detail each and every piece of Country Information to which it had had regard and every aspect of its reasoning process, it could not be inferred that it had not taken into account the Country Information which is the subject of this ground. It was further held that given the extensive findings by the Authority it could not be established that the Authority had ignored any relevant Country Information.

20    Ground four of the application for review asserted the Authority had erred in failing to consider whether the Taliban may pose threats to Hazaras and Shias in the Muqur district in the foreseeable future. Ground five was that the Authority had erred in concluding that the appellant would return to work and live in the Muqur district in Ghazni Province then resume work in the family business. It was said there was no evidence that such was the case. The primary judge dealt with these somewhat disparate grounds together on the basis that the Authority had given attention to both issues. His Honour appeared to take ground five as an allegation of illogicality or irrationality but concluded that it could not be said the findings so made had such characteristics. He also held that the determination was not legally unreasonable or lacking an evident and intelligible justification as considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 363 [66] and 367 [76] per Hayne, Kiefel and Bell JJ. Further he found that there was ample evidence to suggest that the appellant would return to his home village in the Ghazni area as a matter of inference.

21    In the result, the primary judge dismissed the application.

Appeal to this Court

22    The grounds of appeal to this Court, extracted below, reflect grounds one to four of the application for review before the FCC.

1.    The court below erred in finding that the second respondent (the IAA) had considered the appellant’s claims that;

(a)     the rockets which had killed his parents had been fired by the Taliban; and

(b)    such attacks occurred regularly.

2.    The court below erred in finding that the IAA had considered a claim that clearly arose on the information before IAA and on its finding that the applicant would return to work in his family business, that claim being that he would have to travel on the roads around Muqur District and elsewhere to procure supplies [for] that business.

3.    The court below erred in finding that it cannot be inferred that the IAA failed to consider information that it was required to consider pursuant to s 473DB of the Migration Act, that,

(a)    Pashtun majority districts which would correspond to the applicant’s home district of Muqur were not safe due to the presence of the Taliban, and

(b)    Pajwok Afghan news reported in January 2016 that Maqur District was under direct threat from the Taliban.

4.    The court below erred in finding that the IAA had considered the risk to the applicant in the future, as opposed to merely having considered the past and the present.

Consideration

23    Prior to considering the specific grounds of appeal it is appropriate to identify some of the principles governing the conduct of a review by the Authority under Part 7AA of the Act and particularly those relating to allegations that a decision maker failed to consider an important matter.

24    Mr Karp of Counsel for the appellant relied on the observations of the Full Court in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at 138–139 [79] per Kenny, Tracey and Griffiths JJ, where their Honours observed that the scope of the inquisitorial process to be undertaken when considering a protection visa application requires the court to consider and determine the case as articulated and any unarticulated claim which is nevertheless clearly and squarely raised on the material. Reference was also made to the observations in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (AYY17) where a Full Court (Collier, McKerracher and Banks-Smith JJ) observed (at 509–510 [18]) that in exercising the power under s 65 of the Act in relation to a protection visa, the decision maker is “only required to consider claims that are the subject of substantial clearly articulated argument which rely upon established facts, or which clearly emerge from the materials”. Their Honours accepted that a conclusion that a claim “clearly emerges” is not one to be made lightly and it is not sufficient if it might emerge. They further accepted that a claim can only emerge from established facts in the sense that a claim will not emerge from mere hypothetical scenarios. On the other hand, a claim may well emerge from the findings made by the arbiter of fact as well as from the primary materials. At 512–513 [26] it was said:

We can accept the appellant’s contention that the NABE principle in relation to claims or issues clearly arising from materials before the Tribunal or IAA would extend to materials which are actually the Tribunal or IAA’s own findings. An unarticulated claim might “clearly emerge” before a decision maker, having regard to his or her own findings and the material before the decision-maker upon which those findings are reached. This proposition was also accepted by Bromberg J in ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 (at [27]) where his Honour said:

While I respectfully agree that a Tribunal’s obligation to determine a claim extends only to those claims which arise squarely from the materials before the Tribunal, and would also agree that those materials ought to include the Tribunal’s own findings of fact, I consider that the debate misses the point in this case.

25    It was further submitted by Mr Karp that fulfilment of the statutory duty required the repository of power to apply an active intellectual process directed to the claim or relevant issue. He relied upon the observations in Tickner v Chapman (1995) 57 FCR 451 (Tickner v Chapman) at 462 where Black CJ assayed a statutory requirement of a decision maker to consider a report and attached representations. In doing so the Chief Justice relied on the dictionary definition of the word “consider” as follows:

The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.

26    This approach as to the nature of what is required of a “consideration” has been widely accepted: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 540 [105] per Gleeson CJ and Gummow J. It was adopted by the Full Court in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao) at 364 [46] in relation to the obligations of the Minister when cancelling a visa under s 501(3) to consider the merits of the case before him. That passage was relied upon by the appellant and it is appropriate to set it out in full:

We are of the view that the meaning of the word “consider” set out in Tickner v Chapman and the requirement for a decision-maker to engage in an active intellectual process in giving consideration to the relevant matters or criteria should also be applied in determining grounds 1 and 2 of the present applications. As noted above, under s 501(3), the Minister has a discretion to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest. Otherwise, the Act does not expressly oblige the Minister to consider any particular thing or matter before deciding to exercise his powers under that provision. Nevertheless, as we have noted above, the Minister did not contest that he was under a general legal obligation to consider the merits of their cases before cancelling the visas of both Mr Taulahi and Mr Carrascalao. An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).

27    In this area of discourse the allegation that a matter has not been considered usually arises from the absence of any discussion of it in the decision maker’s reasons. However, whether that absence has any probative force in determining whether a statutory obligation has been performed is to be determined in the context of the decision maker’s duty to provide written reasons. Under the Act this is governed by s 473EA(1) which relevantly provides:

Written statement of decision

(1)    If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:

(a)    sets out the decision of the Authority on the review; and

(b)    sets out the reasons for the decision; and

(c)    records the day and time the statement is made.

28    This section does not require the setting out or reference to each and every piece of evidence before the Authority. It is, on its face, less prescriptive than the obligations imposed upon the Tribunal: s 430 of the Act; however s 25D of the Acts Interpretation Act 1901 (Cth) imposes an obligation to set out the findings on material questions of fact and to refer to the evidence or other material on which they are based: BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 at 46–47 [47]–[48] per Flick, Markovic and Banks-Smith JJ. In this way the obligations under s 473EA and s 430 are roughly equivalent.

29    Given the above, the issue which arises is the extent to which the omission to mention a matter in the reasons can evidence a failure to consider it.

A failure to mention relevant considerations and evidence

30    It follows from the scope of the Authority’s obligation to give reasons, that, if after giving a matter real and genuine active intellectual attention, it is considered to be immaterial to the conclusion, the decision maker is not bound to refer to it in their reasons for decision: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (Kumar) at [85]–[86]; Carrascalao at 363–364 [45]. In Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 (SZSRS) (at 75 [33]–[34]) the Full Court observed that whilst a court may infer that any matter not mentioned in the Tribunal’s reasons was not considered by it to be material to its review, it did not follow that the matter was not considered at all. The matter may well have been considered but determined not to be of relevance to the decision. Similarly, the fact that a particular piece of evidence is not referred to does not give rise to an inference that it was overlooked. After consideration, the Tribunal may have given it no weight and, therefore, did not rely upon it in arriving at its findings of material facts. Nevertheless, where a matter or piece of evidence has not been referred to in a Tribunal’s reasons, the findings and the reasons which have been set out may be used as a basis for inferring that the matter or evidence was not considered at all. The question is whether it can be sensibly understood that the matter was considered and not mentioned because it was found to be immaterial. It may well be that in the context of the findings made and the evidence referenced it can be concluded that, if the matter or evidence had been considered it would have been referred to in the reasons, even if it were rejected or given little weight.

31    Whilst it is not necessary for a decision maker such as the Tribunal to reference all of the evidence or matters which it considers and finds are immaterial, to do so in any event is sensible administrative practice which will operate to avoid subsequent disputes as to the process undertaken by them: Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290 at 297–298 [22].

32    With respect to that latter proposition the appellant also relied upon the decision in Singh v Minister for Immigration and Border Protection (2018) 266 FCR 459, being a case where a visa applicant failed to attend a hearing at the Administrative Appeals Tribunal for a student visa and the Tribunal dismissed his application. The applicant sought the reinstatement of his application and communicated to the Tribunal that there had been a miscommunication between himself and his migration agent in relation to the timing of the hearing. The Tribunal was required to consider under s 362B(1C) of the Act whether it was appropriate to reinstate the application and, if not so satisfied, to provide a written statement of reasons. The Tribunal refused the application for reinstatement and in its reasons identified the excuse provided by the applicant for his non-attendance but did not address its merits. The Full Court held that by its omission to address the applicant’s excuse, the Tribunal had failed to perform its statutory task. Colvin J (with whom Kenny and Bromberg JJ agreed) found that the Tribunal had an obligation to engage with the excuse provided by the applicant as a ground for reinstatement. His Honour added (at 466–467 [36]) that if the factual matters relied upon in support of the application were not to be accepted, the Tribunal was required to make express findings to that effect in its reasons together with an explanation of the basis for the findings.

33    With respect to Mr Karp’s submissions, it is not self-evident that the proposition as to the scope of the statutory task of the Tribunal arising from the identified collection of provisions relevant in that case is one of general application. The Tribunal was required to give a written statement for refusing the application for reinstatement. Determination of that sole issue required an intellectual engagement with the reasons advanced by the applicant as to why the application should be reinstated and that included an active consideration of the supporting evidence.

34    Mr Karp also referred to Minister for Immigration and Border Protect v MZYTS (2013) 230 FCR 431. It is not necessary to identify the particular circumstances of the protection visa application in that case. The point sought to be made was one of general application to the consideration of issues in such matters and, in particular, the Full Court’s observation (at 444 [37]) that, given the prospective nature of the claims which are made by protection visa applicants, a decision maker was required to assess and determine what might happen to the applicant if they were compelled to return to their country of nationality at the time of the decision or in the near future thereafter. In the circumstances of that case, (at 444 [38]) the Court observed of the scope of the Tribunal’s obligations: (1) it was required to undertake its task with a consciousness and consideration of the submissions, evidence and material advanced by the applicant most likely to give it an accurate picture of the ongoing circumstances in the applicant’s home country were the applicant to return there; (2) whilst it is for the applicant to advance whatever argument and evidence they wish to advance in support of their claim of a well-founded fear of persecution, it must determine whether the claim is made out; and (3) although evidence about the situation of persons in the applicant’s circumstances in the country of origin in the past might provide the most accurate picture of the ongoing circumstances, that conclusion could only be made after an evaluation of pertinent material advanced by the applicant “including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed”.

The evidence vs claim distinction

35    In reliance on this authority Mr Karp submitted that each of the evidence, claims and submissions relevant to the circumstances of the particular country of reference or particular area of that country had to be considered in the manner referred to in Tickner v Chapman.

36    Mr McGlade for the Minister submitted that the obligation to consider the merits of a claim did not require the Tribunal to engage in the same active intellectual process in relation to every piece of evidence advanced by the visa applicant. He submitted there existed a distinction between matters which required consideration, being claims or integers of claims, and mere pieces of evidence in respect of which the same active intellectual engagement was not required.

37    In response Mr Karp submitted that no such distinction exists. He relied upon the observations of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at 130–131 [111]–[112] to the effect that there is no clear distinction between claims and evidence and that the essential question must be the importance of the material to the exercise of the Tribunal’s functions and thus the seriousness of any error. His Honour considered that the distinction between claims and evidence provided a tool of analysis but not a discrimen itself. Whether a Tribunal is required to consider a document or documents will depend on the circumstances of the case and the nature of the document including the cogency of the evidentiary material and its place in the assessment of the claims advanced.

38    The observations of Roberston J in SZRKT state accurately and concisely the principle under consideration and they have relevance to the issues in this matter. To those valuable observations it might be added that it is not surprising that it is often difficult to distinguish between evidence on the one hand and claims or integers of claims on the other in migration matters and, in particular, in relation to protection visas. The reason is that it is usually the case that the applicant’s assertions as to their history and circumstances provide both the claims or integers of claims and the supporting evidence. The circumstances of this case might provide an example in that the appellant said in his entry interview that every day rockets were fired into his home village in Afghanistan and that his reason for leaving was that it was very dangerous to live there. The effect of this was that he made a claim that he feared harm in Afghanistan because of the danger from rockets being fired into his village every day. The claim and the evidence in support of it arises from his statements to that effect.

39    It is to be observed that the above views of Robertson J have been approved of by a number of Full Courts including Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 and SZSRS. In the latter (at 74 [29]) the endorsement of the Court was in the following terms:

The relevance of the distinction between claims and evidence and the authorities relied on by the minister are considered later in this judgment. It is sufficient to note at this stage that the minister did not directly challenge the correctness of Robertson J’s recent analysis of the relevant principles in this area in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; 302 ALR 572; 136 ALD 41; [2013] FCA 317 (SZRKT), which was cited with approval by the court in MZYTS at [68]–[70] . The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the tribunal’s function and the seriousness of the error.

40    The Minister’s submission sought to maintain a strong distinction between a “claim” (being the factual basis upon which a person says they will be harmed in the future if they are returned to their country of origin) and “evidence” relied on to support such a factual premise. Reference was made to, inter alia, SZURJ v Minister for Immigration and Border Protection (2016) 312 FLR 345 at [22]; CQO15 v Minister for Immigration and Border Protection [2016] FCCA 2948 at [40]; SZVWF v Minister for Immigration and Border Protection (2016) 313 FCR 90 at [20]; FMM17 v Minister for Immigration and Border Protection [2019] FCCA 1500 at [36]. Those decisions of the FCC, however, do not eschew the importance of Robertson J’s observations. They merely identify that which is inherent in them; being that in nearly all cases there will be material advanced to the decision maker which can properly be regarded as “mere evidence” and the question of whether a jurisdictional error has arisen as a result must be tested according to established principles.

Ground 1

Submissions in relation to Ground 1

41    The first ground of appeal is that the Authority failed to consider the appellant’s claim that the Taliban had fired the rockets which killed his parents and that in the area in which he lived rockets were fired every day. It was submitted that these matters were relevant to various parts of his claims, including the possible motivation for the attacks, the veracity of the appellant’s claims that his siblings had also been affected by a rocket attack, and the risk of harm if he returned to Afghanistan.

42    When the circumstances are articulated, the gravamen of the appellant’s complaint is self-evident. The Authority accepted that the appellant’s parents had been killed in a rocket attack on their village when a rocket hit their house and that the rocket had been fired indiscriminately. However, the appellant had claimed that the rocket had been fired by the Taliban, that rocket attacks on the village were a daily occurrence, and that in one such attack the home of siblings was hit and they have disappeared. The ultimate conclusions of the Authority in relation to these issues are at [50] of its reasons:

Weighing everything before me, I find that the applicant is not a witness of credit. I am prepared to accept that his parents were killed in 2010 in an indiscriminate rocket attack. That aspect of his claims has been reasonably consistent, notwithstanding my concerns about his evidence relating to his attendance at his father's funeral. However, I do not accept any of his other claims, including that his siblings were involved in a second rocket attack and are missing. I also do not accept that the applicant or his family ever faced any threat, mistreatment, assault or any other form of harm (including being prevented for practising their faith) from the local Taliban in Muqur, Islamic State, local Sunnis, Pashtuns or any other person or group, whether in connection with their [agricultural product] business, or otherwise. On his own evidence, the rocket attack that killed his parents was not a deliberate attack. I am not satisfied that he and his family were ever targetted (sic) because of their ethnicity or faith in Muqur, and I do not accept the applicant’s claims to the contrary.

43    The appellant submitted that the conclusion that neither he nor his family faced any threat from the Taliban in their home village was made without considering the claim as to the frequency of the rocket attacks from the Taliban. In particular, it was said that there was a failure to consider the claims advanced in relation to the threat of harm the appellant would encounter were he to return to Afghanistan for the purposes of s 36(2)(aa) of the Act. Relevantly, that section provides:

(2)     A criterion for a protection visa is that the applicant for the visa is:

…

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

44    The effect of the Authority’s determination is that there was no real risk that the appellant would suffer significant harm were he to return to Afghanistan and, in particular, to his home village. That finding was made despite the appellant advancing a claim that he would face the risk of harm in his village because of the daily rocket attacks from the Taliban. The Authority made no specific reference to that claim yet it concluded that he would not suffer harm from generalised violence as opposed to violence arising from religious or ethnic reasons ([75] and [76] of the Authority’s reasons). That conclusion was necessary so as to permit the Authority to transpose its findings in relation to the claim for protection under the Convention to the claim under the complementary protection provisions.

45    Mr McGlade for the Minister submitted that the question to be determined by the decision maker concerned the risks which might face the appellant were he to return to Afghanistan in the near future. In that sense they are prospective. In contradistinction, the statements by the appellant about the frequency of rockets fired into his village and the identity of those who fired them, concerned historical or retrospective facts. In this way the submission made was that the claim advanced by the appellant was to the effect that if he returned home he would be killed as a result of the violence perpetrated by the Taliban and, so it follows, the statements he made in 2013 about what had occurred in his village in 2010 was merely evidence which he advanced to support his claim. The Minister submitted that while this evidence was not irrelevant, the Authority was entitled to give primary weight to the ‘up-to-date’ Country Information before it in concluding that the risk of harm from generalised violence was remote.

Was the claim or integer of claim considered?

46    Despite the careful and somewhat persuasive submissions advanced on behalf of the Minister, in this case the Authority failed to consider a claim or an integer of a claim which had been advanced by the appellant. Although he spoke of the danger in his home village in the context of the death of his parents, when the reference to rockets being fired into the village on a daily basis is taken together with his statements that it “was very dangerous” and “not safe to live” in Afghanistan, there exists a clear claim that he would suffer harm if he returned, because of the daily rocket attacks on his village. At the very least the assertion about the daily firing of rockets into his village, if established, would be one of the facts constituting a claim and therefore an integer of a claim: SZVWF (at 95 [20]). On any view it was an important assertion.

47    The authority did not expressly refer to the allegation that the rocket attack of the type that killed his parents was a daily occurrence and nor did it do so implicitly. It did not identify that the appellant had made such a claim even though it did refer to the claim that his parents had died in a rocket attack. It appears that it took the view that the appellant’s reference to the attack as being “indiscriminate” was intended to mean that it was not deliberate in the sense that it was not intentional. That seems to have been in error. What was intended was that rockets were intentionally fired into the village, being a village populated by ethnic Hazara, although not specifically aimed at any particular house. That particular error was not, of itself, the source of any greater decisional mistake.

48    Nor is it possible to conclude that consideration of the claim or integer of the claim that the appellant’s village was unsafe to return to because of daily rocket attacks, was subsumed in the findings about general risk in the Ghazni district based on Country Information. The Authority found that whilst there had been an escalation in violence against Shia in the rest of the country there was no corresponding rise in such attacks in the Ghazni district. At [63] it was found:

Based on all the information before me, if the applicant was to return to live in his home area in Ghazni, I consider the chance of the applicant suffering serious harm in religious or ethnically motivated violence from Islamic State, the Taliban or any other insurgent group to be remote. Accordingly, I am satisfied there is not a real chance the applicant would face serious harm in his home area in Ghazni on the basis of his religious and ethnic profile, as a Shia Hazara.

49    The difficulty with that conclusion is the absence of any finding as to the pre-existing level of violence which had been perpetrated against the Hazara population in the appellant’s home village. Had the Authority considered the claim advanced it would have been required to make such a finding. Whilst a finding was made that the appellant would not be targeted because of his ethnicity, religion, or profile, nothing was determined as to the level of violence generally encountered in the appellant’s home village save that, at a general level, it was concluded that the Ghazni district is a volatile and insecure province.

50    Mr McGlade submitted, in effect, that the events in the past concerning rocket attacks had been overtaken by more recent Country Information. Whilst there is some force in that submission, it is apposite to note that, in a slightly different context, the Authority considered that what had occurred in the past was relevant as to what might happen in the future. At [52] of its reasons it said:

While the applicant has lived in the Pashtun dominated Muqur district since birth, I have found that neither he nor his family have ever faced harm on the basis of their religious and ethnic profile. While the absence of past harm is not determinative of the question of whether person faces a real chance or real risk of being seriously or significantly harmed in the future, it is a relevant consideration. In my assessment, the applicant and his family have had no adverse profile, or faced any direct harm, on the basis of their ethnic and religious profile.

51    By parity of reasoning it might be thought that the fact of rockets being fired into the appellant’s home village on a daily basis in the past might be a relevant consideration as to what might happen in the future. More importantly, the appellant’s assertion about the daily rocket attacks was, at least, an integer of the claim that he faced a real risk of harm if he returned to his village because of them. The veracity of that claim was an important and crucial part of the appellant’s visa application and it was not dealt with.

52    Mr Karp for the appellant submitted that the failure of the Authority to consider the claim as to the daily firing of rockets into the appellant’s village by the Taliban had the consequence that no attention was paid to the issue of the identity of the persons who were firing those rockets and why. Had it turned its mind to this question it would have concluded that it was the Taliban who were firing the rockets and, so the submission went, it was because of the ethnicity or religion of those in the village. Unfortunately the Authority did not deal with this issue save in a general way by identifying that insurgents were not targeting Shias in the region. Whether the reference to insurgents was a reference to the Taliban or all insurgents was not clear.

Does the absence of any mention of the claim reveal that it was not considered?

53    Mr McGlade for the Minister submitted that it was not sufficient to establish a failure to consider the claim for the appellant to point to the absence of any mention of it in the Authority’s reasons. He relied upon the decision in WAEE at 604–605 [46]–[47] where the Court observed that it is not necessary for a decision maker to refer to every piece of evidence and every contention made by the parties as some may be irrelevant and others misconceived. It also reiterated that there is a distinction between the Tribunal not averting to a piece of evidence as opposed to a contention. Further, given that it is an administrative body, its written reasons are not to be scrutinised “with an eye keenly attuned to error” and nor are they required to be of a type expected by a court of law. Mr McGlade specifically referred to [47] of the reasons in WAEE where it was said:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

54    To similar effect is the following passage from the decision of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1100 [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ:

As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.

(footnotes omitted)

55    In reliance on these authorities Mr McGlade submitted that, as the Authority took into account the relevant Country Information, the identity of the firer of rockets into the appellant’s home village was not important. It was also submitted that the making by the Authority of the broad finding about the level of risk in the appellant’s home village had the consequence that it can be inferred that a particular piece of evidence has been taken into account, by being subsumed in other findings.

56    However, here a claim was made about the danger to the appellant arising from the circumstances of the village where he lived; namely that it was subject to daily rocket attacks by the Taliban. That went directly to the criteria relevant to his entitlement to a grant of a protection visa. The Authority made the finding that he would not be subject to generalized violence or harm from the Taliban if he returned home without mentioning this claim. Indeed, there is no mention of it at all or of the issue of the frequency of rocket attacks. The absence of any mention of it, let alone any determination about it, suggests that it had been overlooked.

57    It can be acknowledged that in [50] of its reasons the Authority made the general comment that whilst it accepted the claim that the appellant’s parents were killed, it did “not accept any of his other claims”. However, it is difficult to infer that it had in mind the claim that rockets were fired into the appellant’s village on a daily basis. That is particularly so given there was no mention of that important claim in its reasons. To that it can be added that the Authority had identified each of the other claims which it rejected. The rather clear inference is that the Authority overlooked and did not deal with the appellant’s claim as to this particular source of risk to his life.

58    In such circumstances the Court is entitled to infer that the matter was not considered at all. As was recently said in Kumar at [59]:

Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant.  On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error.  A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case.  A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked.  But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation (2002) 123 FCR 499 at [62] (p 512) (per Hely J).  Whether that inference should be drawn will depend on the circumstances of the particular case.

59    This was not a case of the claim or integer thereof being given only cursory attention. It was not given attention at all. Its significance to the outcome of the application was such that it could not be dismissed as irrelevant or as being merely subservient to other issues.

60    Further, it is not possible to regard any finding about the claim as being subsumed in any other finding. As indicated above, the findings flowing from the Country Information concerned increases in the level of violence and not the extant levels of violence. At this point it must also be kept in mind that the claim was advanced under s 36(2)(a) and s 36(2)(aa) and the findings as to whether the appellant would be targeted for religious or because of his ethnicity were not directly relevant to the actual circumstances of the generalised threat of rockets being fired into his village daily which is particularly important to the consideration of s 36(2)(aa).

61    The appellant had raised a claim that he would be at risk of harm if he returned, because of the daily rocket attacks on his village. He asserted that risk of danger forced him to flea Afghanistan. If the Authority had found in his favour on this issue it may well have been dispositive of the application. It may have established a basis on its own for the granting of a visa on the complementary protection grounds. Alternatively, it could have formed part of the foundation for the grant of a visa on the Convention grounds. On any view, it was a significant part of the appellant’s claim and the failure to mention it in the reasons supports the conclusion that it was overlooked.

62    Mr Karp further submitted that the failure to consider the claim about daily rocket attacks had the consequence that the Authority did not consider the identity of those who made the attacks. It was submitted that if this were considered, it would have been appreciated that the attacks were carried out by the Taliban for religious or ethnic reasons. In this manner it was submitted that the Authority failed to consider a claim based on Convention grounds.

63    Given the previous findings it is not necessary to reach a final conclusion on this point. However, there is force in the submission that a claim that the Taliban was firing rockets at a particular village on a daily basis, carried with it the implication that the attacks were motivated by a desire to persecute the inhabitants because of their religion or ethnicity. Here, because the Authority overlooked the claim concerning daily rocket attacks, it is probable that it also overlooked a claim for protection based on Convention grounds.

A failure to consider a claim or integer of a claim

64    It follows that the Authority failed to consider a claim or an integer of a claim advanced by the appellant which supported his visa application on the complementary protection grounds or Convention grounds. There is no need to discuss any qualitative aspects of the concept of “real and genuine consideration” in this case: Carrascalao at 360 [31]–[32]; as there was no active intellectual process directed at the merits of the claim or integer of the claim at all: Carrascalao at 363–364 [45]–[46]. It was, in effect, overlooked by the Authority, which had the consequence that it failed to fulfil its statutory duty.

65    The Minister submitted that any error was immaterial and would not affect the ultimate conclusion and relied on CRG16 v Minister for Home Affairs [2019] FCA 374, [52]. However, that case concerned a failure to have regard to material or evidence going to a claim or an integer of a claim. It was not concerned with a failure to consider the claim or integer at all.

66    It might be thought that where it has been determined that a claim or an integer of a claim has not been considered such that there is a failure of the Authority to undertake its statutory task, there is little room for questions of materiality: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. Whether that is so or not need not be considered. Where, as here, a genuine claim is advanced which would, if made good, found the grant of a protection visa, the omission to consider it would lead to a jurisdictional error (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at 445 [45] per Bell, Gageler and Keane JJ) or a jurisdictional error of a nature that relief should be granted (SZMTA at 456–460 [84]–[95] per Nettle and Gordon JJ). The Authority’s failure to consider the claim or integer of the claim had the result that its conclusion that it was not satisfied that the appellant met the criteria for the grant of a visa was vitiated. Its determination to affirm the Minister’s decision thereby miscarried.

Conclusion as to Ground 1

67    It follows that the appellant has established that the Authority’s decision was affected by jurisdictional error and the primary judge erred in not so concluding. The appeal should be allowed on this basis.

Ground 2

Submissions in relation to Ground 2

68    As previously outlined, the appellant claimed in his protection visa application that he had trouble getting supplies for his business as he could not travel safely in this local district because of the danger of the Taliban. The Authority considered the risk of harm to the appellant travelling on the roads in [57]–[66] of its reasons. It concluded that although there was a credible chance that the appellant would be involved in an incident or attack on the roads, that risk was remote because, inter alia, the appellant would have few reasons to travel frequently on those roads.

69    The appellant submitted that the Authority erred in failing to consider the appellant’s unarticulated claim that he may have to travel to obtain supplies if he were to return to working in his family business. He contended that had the Authority considered that claim, it may not have been so willing to reach the conclusion that the appellant would have few reasons to travel frequently on the roads and no reason to enter the Hazarajat. Although framed as an unarticulated claim, the argument could also be understood as alleging the Authority’s conclusion on this issue was illogical on the evidence before it.

70    The Minister submitted that, at best, on the evidence before the Authority there was a speculative prospect that the appellant “may” travel on dangerous roads to obtain supplies for his business. That was argued to be insufficient to give rise to a claim that the Authority was obliged to consider. In any event, the Minister argued that the Authority did not accept that there was any risk of harm on the roads in the appellant’s home area, and therefore rejected the factual premise underpinning the appellant’s claim. Further, the Minister contended that there was nothing to suggest the Authority was not cognisant of the speculative possibility that the appellant might need to travel on the roads to obtain agricultural supplies when it concluded that the appellant “would have few reasons to travel frequently on the roads”.

Did an unarticulated claim arise?

71    The appellant’s alleged unarticulated claim was not made in isolation. It was part of a broader claim, which is apposite to set out in full:

… The Taliban were actively targeting Hazara people throughout the roads around Ghazni. The Taliban had many checkpoints throughout the area which made it very difficult and unsafe for me to leave my village. Most of the time I wasn’t able to leave [my village] because it was surrounded by Taliban. Sometimes the Taliban would be hiding and then would ambush Hazara people and kill them…

72    Taking into account this context, the appellant’s statement may be interpreted in one of two ways. On the one reading, it appears the appellant was saying he did not travel on the roads because of the risk from the Taliban, and because of this he had difficulties getting supplies for his business. This interpretation is supported by his claim that he was unable to leave his village most of the time because of the Taliban. On the other reading, it appears he was saying that when he travelled to obtain supplies, he faced difficulty because of the risk from the Taliban. This interpretation is supported by the fact that the appellant did not say he could not travel in the area, but rather than he could not travel safely in the area.

73    Both interpretations were logically available to the Authority based on the evidence before it. As a consequence it cannot be said that a claim that the appellant was at risk because he would travel on the local roads arose clearly and squarely on the material before the Authority. This is consistent with the principles set out in AYY17 at [18], principally that it is not enough that a claim might be said to arise from materials. Where, as here, there are multiple reasonable interpretations of the evidence available to the Authority, it will be difficult to conclude that a claim arose clearly and squarely on the material.

74    For similar reasons it could not be said that the Authority’s conclusion, that the risk of harm to the appellant on the roads was remote, was illogical. It was open to the Authority to adopt the first reading of his statement, and thereby conclude, as it did at [61] of its reasons, that the appellant would have few reasons to travel frequently on the roads. Further, the Authority’s conclusion was based on a consideration of several other cogent pieces of evidence, including Country Information that indicated there had been no recent incidents on the roads in Ghazni, and no reports of abductions of Shia Hazaras (or other persons) within Ghazni Province through 2016 and 2017; that the appellant is familiar and experienced with travelling in his home area; and the appellant does not possess typical Hazara features.

75    For these reasons, ground 2 must be dismissed.

Ground 3

76    In broad terms, in support of this ground the appellant submitted that the Authority did not adequately consider the threat posed by the Taliban in the specific region of the appellant’s home village. While the Authority made findings to the effect that Ghazni is a volatile and insecure province, and that there had been a deterioration in security throughout the country, the appellant had submitted before the FCC that the risk posed in a particular district of a province is not addressed by a consideration of risk in the province as a whole, as the risk might be different in different places. It was submitted before this court that the Authority erred in failing to consider the security situation in the Muqur district specifically and explicitly, which was detailed in two pieces of Country Information referred to in the delegate’s decision. Those pieces of information were both before the delegate and it was submitted that the Authority was required by ss 473CC and 473DB(1) to consider them in the sense of applying an active intellectual process to them. They consisted of a DFAT report and a report from an Afghan news body.

77    On the appellant’s submission, the evidence in question – relating to the threat posed by the Taliban in the Muqur district – was highly relevant to the danger faced by the appellant in his home area and therefore it would be expected that it would be specifically mentioned in the Authority’s reasons. The appellant’s submission, although not articulated to its conclusion, appears to be that the Authority therefore erred because it can be assumed, contrary to the findings of the FCC, that the Authority did not consider these relevant matters at all.

78    The Minister submitted that the Authority’s failure to expressly refer to the two pieces of Country Information does not, of itself, provide any basis to draw an inference that such evidence was overlooked: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. He referred to the Authority’s assertion at [8] where it said:

In undertaking this review, I have also obtained new country information. Since the time of the delegate’s decision, there have been developments in the security situation in Afghanistan relevant to this application. In recent months, the Australian Department of Foreign Affairs and Trade (DFAT) released two new country information reports on Afghanistan. The delegate’s decision turns in large part on reference to earlier versions of these DFAT reports. I consider the updated reports take into account relevant security developments in the country in the second half of 2016 and through 2017, in particular a number of attacks against the Shia Hazara population. Those reports also provide analysis of those developments. In this case, I consider there are exceptional circumstances to justify consideration of these two new reports.

79    The reference in that paragraph to the fact that the delegate’s decision turned in large part on reference to the earlier DFAT reports shows that the Authority had a clear understanding of those reports and their relevance to the issues concerning the later applications.

80    Mr McGlade also submitted that the earlier reports and news items were not overlooked by the Authority. He referred to [2] and [70] of the Authority’s decision where it stated it had considered all the review material, and [56] and [69]–[70] where the Authority demonstrated it was cognisant of the existence of Country Information evidencing the existence of security risks. The Minister also noted that the Authority expressly referenced the updated version of the DFAT report the appellant alleged was overlooked (in footnote 1, 11 and 12 of the Authority’s reasons).

81    On this issue the Minister’s submissions should be accepted. It is apparent that the Authority made a detailed assessment of the current security position in Afghanistan and, particularly, as to the level of violence in the Ghazni province. It identified the existence of some security risks and made an assessment of the situation in the province where the appellant’s village was located. In such circumstances it is difficult to reach the conclusion that it did not consider all of the material before it. No inference to that effect appears from the reasons.

82    Although it will not always be the case, it would not be unusual for a decision maker to give prominence or even dominance to the most recent Country Information. By its nature it has a limited temporal value as it speaks of the circumstances in a particular country as at the date of its publication. Necessarily, the more recent and updated information is significantly more relevant to assessing the risk to a visa applicant if they were to return to their country of origin in the foreseeable future.

83    Here the Authority paid attention to the more recent information which, albeit, more general, included the area in which the appellant’s village was located. That information must have superseded the earlier information as the Authority had inferentially observed. It was entitled to rely upon the more recent information and the failure to specifically refer to earlier information does not bespeak of a failure to consider it. In the circumstances, the earlier Country Information on which the appellant relied in relation to this ground had reduced in significance since the delegate’s determination. It was no longer central to the security issues and it cannot be said that the failure to expressly refer to it indicated a failure to consider it.

84    For these reasons, ground 3 must be dismissed.

Ground 4

85    The appellant did not press Ground 4.

Conclusion

86    It follows that the appellant has succeeded on Ground 1 with the consequence that the appeal should be allowed. The FCC erred in not quashing the decision of the Authority and its order dismissing the application should be set aside. A writ of certiorari should be directed to the Authority quashing its decision. The matter should be remitted to the Authority to determine the appellant’s application according to law.

87    The first respondent should pay the appellant’s costs of the appeal.

Associate:    

Dated:    18 March 2020