FEDERAL COURT OF AUSTRALIA

ATU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1165

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal, including the extension of time application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The appellant is a citizen of Afghanistan. He arrived in Australia by sea on 6 June 2013. He did not at that time have the benefit of any visa issued under the Migration Act 1958 (Cth) (the Act) authorising him to enter and remain in Australia. He was, therefore, what the Act terms an unauthorised maritime arrival.

2    On 11 July 2017, having had the benefit of an authorisation decision by or on behalf of Ministerial predecessor to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) responsible for the administration of the Act, the appellant lodged with the Minister’s department an application for that class of visa under the Act known as a class XE-790 Safe Haven Enterprise Visa known as SHEV.

3    The appellant was notified by a letter of 9 October 2018 that a delegate of the Minister had decided to refuse his SHEV application. As the Act required, the application was then referred to the Immigration Assessment Authority (Authority) for “fast-track” review. On 30 January 2019, for reasons given in writing, the Authority decided to affirm the Minister’s delegate’s decision not to grant to the appellant an SHEV visa. The appellant then sought the judicial review of the Authority’s decision by the Federal Circuit Court of Australia (Federal Circuit Court).

4    On 25 October 2019, that Court dismissed the appellant’s judicial review application. Following the granting of an extension of time, the appellant now appeals to this Court against that order of dismissal. As pleaded, there were two grounds of appeal in the notice of appeal. Only the first of these in the result has come to be pressed. Ground 1 is in these terms:

1.    The Federal Circuit Court erred in failing to find that the decision of the Second Respondent (Authority) on 30 January 2019 was affected by jurisdictional error on the basis that the Authority’s findings were affected by illogical and irrational reasoning processes resulting in a decision that was unreasonable.

Particulars

(a)    The Federal Circuit Court erred in its assessment of the Authority’s findings at [19] that what the Authority found was that it was implausible that the Applicant would have taken “a couple of days” to tell his father about a threat of punishment from the Taliban (Federal Circuit Court decision at [16]).

(b)    The Federal Circuit Court erred in finding that the Authority did not err in in its findings as to the Applicant’s credibility (Federal Circuit Court decision at [20]).

(c)    The Federal Circuit Court erred in finding that the Authority’s erroneous finding relating to the timing of the motorbike incident was immaterial and that the Authority was entitled to have regard to a discrepancy concerning the alleged timing of the motorbike incident (Federal Circuit Court decision at [21]).

(d)    The Federal Circuit Court erred in not considering and not finding that the Authority erred in not finding that the Applicant would face harm due to his past association with the Swedish Committee of Afghanistan.

(e)    The Federal Circuit Court erred in not considering and not finding that the Authority erred in not finding that the Applicant would face harm from being recruited by the Taliban.

[sic]

5    There was no dispute between the appellant and the Minister, who is appropriately the only active party respondent to the appeal, that the learned primary judge correctly set out in his reasons for judgment the way or ways in which the jurisdictional error ground of irrationality or illogicality might be made out. I shall detail that shortly.

6    Before so doing, it is necessary to recognise that, ultimately, whether or not a visa was granted or not granted to the appellant depended, as s 65 of the Act dictates, on a presence or absence of a specified satisfaction. That being so, a necessary starting point, in my view, in relation to a challenge based on illogicality or irrationality is Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, in which, at [23] – [24], Gummow ACJ and Kiefel J stated:

23.    In Australia, as Basten JA recently observed, the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms “arbitrary, capricious, irrational” as well as “not bona fide” to stigmatise the formation of an opinion upon which a statutory power was enlivened. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open.

24.    A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.

[footnote references omitted]

To like effect, in terms of principle, is the statement made by Crennan and Bell JJ in their joint judgment, at [122]:

122.    Just as the unreasonableness of a result was referred to in Avon Downs, correspondingly, the “reasonableness” of a decision has often been considered in circumstances where a public officer must be “satisfied” of some fact or circumstance. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd, it was not suggested that such an officer must prove his or her satisfaction. However it was found that a requirement that a public officer be “satisfied” of certain facts or have “reasonable cause” to believe facts imports a requirement that the opinion is one that could be formed by a reasonable person. The Chief Justice went on to state:

“If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”

Further, satisfaction of the existence of facts must amount in point of law to what an empowering provision prescribes or specifies. As explicated subsequently by Gibbs J in Buck v Bavone, this means a decision-making authority which must be satisfied of certain facts “must act in good faith; it cannot act merely arbitrarily or capriciously”. His Honour went on to say that even if certain specified errors could not be established “the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”. Such formulations convey the idea that a court should not lightly interfere with administrative decision-making.

[footnote references omitted]

7    It was against, as I would take it, that particular background that the learned primary judge came in ATU19 v Minister for Home Affairs & Anor [2019] FCCA 3042, at [12] – [13], to summarise the position, as his Honour understood it, as follows:

12.    Ground 1 of the application for review asserts that the Authority’s findings were affected by illogical ad irrational reasoning processes resulting in a decision that was unreasonable. The applicant relied upon the judgment of Crennan and Bell JJ in the Minister for Immigration v SZMDS (2010) 240 CLR 611 from [121]. At [130] – [131] it was there said:

“[130]    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statue imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

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

13.    The threshold for illogicality has been held to be very high. The issues of irrationality and illogicality in relation to decision making have also been considered in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] – [61] where it was said:

“[60]    In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

52    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

…

54    … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

55    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

[61]    For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26] - [27]).

[footnote reference omitted]

8    While, of course, agreement between the parties in respect of a position at law is always pertinent, indeed persuasive, it nonetheless does not leave an appellate court from reaching its own conclusion as to the correctness in law of a particular position as recited in the original jurisdiction.

9    As it happens, I respectfully agree with the summary offered by the learned primary judge and commended jointly by the parties. So, the question in the present case is not whether there has been a misapprehension of principle, but rather, whether having regard to the ground of appeal as particularised, there has been, in the particular circumstances of the present case, a misapplication of principle.

10    A necessary starting point in that regard, in my view, in determining whether there is any such misapplication is to remind oneself of the emphatic cautionary note sounded in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), by particular reference to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, that the reasons of an administrator ought not to be read narrowly and with an eye for error, but rather, fairly and as a whole. It is singularly important that the frequency of encounter with Wu Shan Liang not diminish in particular cases its importance, nor diminish its application. What is called for is a principled restraint by the judicial branch in the reading of administrators’ reasons. Not so to do would make the conduct of public administration very difficult, indeed, on a day-to-day basis.

11    At common law, officers of the Executive, high or humble, are not obliged to give reasons for decisions: see Public Service Board (NSW) v Osmond (1986) 159 CLR 656. Parliament has, however, in the interests of good public administration and for the purpose of better understanding of administrative decisions, chosen in particular cases, of which the present is one, by statute to alter the position at common law so as to oblige the giving of reasons which comply with an ordained standard. It is only natural, therefore, that those affected by an administrative decision subject to such a statutory obligation will look to those reasons to understand why the decision was made and whether, truly, the decision was made according to law. It is just, that in reading reasons, it is necessary to bear in mind that the primary purpose is to inform the person affected of the outcome. Further, one must be careful not to regard a counsel of perfection as the standard against which one finds in its absence jurisdictional error. These particular sentiments, in my view, loom large in the present case. It is quite obvious from the reference by the learned primary judge: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, at [46] – [47], that they also loomed large in his Honour’s consideration of the grounds of review.

12    In the record of the appellant’s initial “Irregular Maritime Arrival of Induction Interview”, conducted in 2013, shortly after he arrived in Australia, under the heading “Reason to Leave”, at item 32, the following appears:

32.    Why did you leave your country of nationality (country of residence)?

My father was the project manager in the development section of the swedish educational institute. He was organising seminars for women in promoting education for women. Taliban threatened him.

‘if it was directed at your father, why did u leave’?

I was threatened as well because my dad likes his job, he didn't want to leave. I had to travel in and around the city and I was more at risk. My father was not happy that I chose this path. He wanted me to go to India and study instead however this was my choice.

Principal Reason

Specific threat or incident

[sic]

13    The detail as to what lay behind the rather terse summary in the induction interview was offered by the appellant in his own first language which was not English, in a document translated into English on 22 June 2017, but which, at least in its original non-English form, is the document of 1 June 2017 referred to by the Authority in its reasons. It is desirable to set out the first three paragraphs of the document of 1 June 2017:

I worked in a Swedish organisation after school hours. I served at the education and training department. This department establishes schools and training centres at various villages and showed pictures aimed to enlighten the women about their rights and to prevent violence against women. I used to go with my other colleagues to different villages to absorb more students. We participated in gatherings intended to inform audience about women’s right issues. I also took part in the inauguration functions of schools. My father serves as the education project manager and highly prides himself with the kind of activities we engaged.

One day I received a call, the caller introduced himself that he was calling from the Islamic Emirate of Afghanistan. He said “You do not refrain from conducts which are contrary to Sharia Law, your conduct is against Sharia law as you teach infidelity. Engaging in anti-Jehad, you cooperate with the infidels. It is time now to punish you because you do not refrain from anti-Islamic activities”.

The caller said your conduct was contrary to Sharia law, you teach infidelity. Instead of participating in Jehad you work with infidels. I took this call not serious and thought perhaps someone is joking with me. I didn’t tell about this at home for couple of days. Whilst I was returning home, I notice two people sitting on a motorbike. It was at a locality called Kochi-e-Baghu. They asked me to stop my motorbike. When I approached them, I was asked if I was [ATU19], I said “Yes”. The person said “You infidels do not give up”. He attempted to take out his revolver. At that moment, I pushed him and started running until I arrived to a Police check point at the outskirt of military base called Firqi Charda. I went inside, stayed there for about two hours. Thereafter I was taken to my sister’s place. I decided not to go to my house. I was extremely shocked. The following day, I told about the incident to my father. My father and I decided I should leave Afghanistan as it was not safe to remain in the country.

14    Prior to the delegate making the refusal decision, the appellant participated in an interview with the delegate, termed the “SHEV interview” by the Authority. That interview was recorded, but a transcript thereof did not form part of the evidence before the Federal Circuit Court. Rather, the contents of that interview were either as summarised by the delegate under the heading “The applicant’s claims for protection are summarised below” or, it seems inferentially, as mentioned by the Authority in its reasons after having listened to the interview. I say “inferentially” because the Authority does not, as might desirably be the case, expressly state in its reasons that it has listened to the interview, but the recording did form part of the material referred to the Authority by the Secretary pursuant to s 473CB of the Act. Further, there are a number of references in the Authority’s reasons to the SHEV interview which in terms of the related detail go beyond the delegate’s summary and are consistent only with an inference that they must necessarily have resulted from listening to the interview itself: see in particular in that regard the direct quote which appears at [23] of the Authority’s reasons:

23.    I also have concerns about the evidence the applicant has given with respect to his brothers with whom he claims he has lost contact. In the SHEV interview the delegate noted the family appeared to be a close family and his brothers would likely have needed financial assistance in this time. She put to him that it was difficult to accept noting these factors, and especially in this age of social media, that the family do not know where his brothers are and have had no contact with them in the past few years. The applicant maintained that they had gone to India and told their father from there that they did not want to come back. He said “we don’t know if they’re alive or not” or what might have happened to them. I have considered the applicant’s responses but I concur with the sentiments the delegate expressed in the SHEV interview and I am unconvinced by the applicant’s responses. While I accept his brothers are overseas, I do not accept they disappeared as the applicant claims and nor do I accept their absence resulted from them being targeted by the Taliban, or anyone.

[emphasis in original]

15    As summarised by the delegate, the SHEV interview materially included statements to the following effect by the appellant (referred to be below as the applicant):

•    …

•    As a consequence of his father’s employment with SCA [Swedish Committee for Afghanistan] and his volunteering work with SCA the applicant was directly threatened by the Taliban, on two occasions, prior to his leaving Afghanistan in May 2013. These threats were made whilst he was living in Bahlol Sahib. They were:

1.    February / March 2013: a threatening phone call from an unknown person from the Taliban accusing him of continuing to do anti-Islamic activities and co-operating with infidels despite being told to stop these activities.

2.    2 weeks after this phone call: a face-to-face encounter with two Taliban on the roadside at Kochi-e Baghu, Ghazni city in which the applicant was threated and he feared he would be shot with a gun.

•    When the applicant received the February / March phone call he thought someone was playing a joke on him and was not overly concerned. His encounter with the Taliban at Kochi-e Baghu frightened him and precipitated his going to Kabul.

•    February / March 2013 applicant flees to Kabul and remains in hiding there until departing Afghanistan May 2013 to go to India.

•    March 2015 (approx.): applicant’s brothers (Ajmal and Afzal) move to Jalalabad to undertake six months of tertiary study, at a private university before fleeing to India in August 2015 (approx.). A threatening phone call received by Ajmal demanding he and his brother join the Taliban, precipitated their departure from Afghanistan.

16    I do not intend any violation of the restriction that reasons must be read as a whole when setting out only particular excerpts from the Authority’s reasons. I do so, so as to expose my reasoning with respect to the disposition of the appeal, having regard to the way the appeal ground was argued. The Authority summarised the appellant’s claims at [7] as follows:

•    He is a Sunni Muslim of Tajik ethnicity from Bahlol Sahib village just outside the Ghazni City centre.

•    He and his father worked in the education and training department of the Swedish Committee of Afghanistan (SCA) which establishes schools and training centres in villages and works to educate women about their rights and prevent violence against women. He travelled to different villages with his colleagues to attract students and hold gatherings to inform audiences about women’s right issues. He also worked on the inauguration functions of schools. His father still works for the SCA as the education project manager.

•    One day he received a call purportedly from the Islamic Emirate of Afghanistan (the Taliban). The caller accused him of engaging in conduct contrary to Sharia law and teaching infidelity, and engaging in anti-Jihad activities and cooperating with infidels. He threatened he would be punished for his anti-Islamic activities. The applicant thought the call was a joke and did not take it seriously. He did not discuss it at home.

•    A couple of days later an incident occurred (‘the motorbike incident’). He was returning home when he noticed two people sitting on a motorbike in Kochi-e-Baghu. They asked him to stop and confirmed his name. They said “You infidels do not give up” and one of them tried to take out a revolver. The applicant pushed him and ran to the police checkpoint at the outskirt of the Firqi Charda military base. He entered the base and stayed for about two hours and preferring not to go home, he was taken to his sister’s place. His told his father about the incident and they agreed he should leave Afghanistan for his own safety.

•    When he departed Afghanistan, the Taliban demanded that his two younger brothers should join the jihad. His father sent them out of the country.

•    His father receives protection from the SCA, but the rest of the family cannot avail such protection.

•    In March 2016, some other SCA employees were kidnapped by the Taliban on Ghazni-Kabul Highway. In June 2016, SCA’s regional officer with whom the applicant used to work, was taken by the Taliban in Qarabagh district. Other agencies in Ghazni province experience the same treatment. In Waghaz district, five engineers and the driver were abducted by the Taliban. These incidents are frequent, but many are not reported for privacy reasons.

•    He fears that if returned he will be killed by militant groups (including Taliban, Daesh, Al Qaeda) because he refused to join the Taliban, his previous work with the SCA and his father’s ongoing work, his residence in Australia/ a western country, because he is in the Tajik ethnic minority. He also fears being kidnapped for ransom.

[emphasis in original] [sic]

17    Under the heading “Risk arising from previous threats association with the SCA”, the Authority stated:

11.     The applicant claims to fear harm on account of threats received from the Taliban stemming from his father’s employment and his own voluntary work with the education and training division of the SCA. He claims that his father was also threatened, and that after he left Afghanistan, the Taliban called and threatened his brothers who were studying in Jalalabad, demanding that since the applicant had not joined with them they must join instead. He claims his brothers left in fear for India and the family has since lost contact with them.

12.    The applicant claims that after he told his father about the motorbike incident and earlier phone threat his father revealed that he had also received Taliban warnings through some phone calls and a letter threatening to kill his son and the rest of the family if he did not stop working with the non-believers. He claims his father said he had not mentioned it earlier because he had not wanted to worry the family and he thought he was going to “sort it out”. He claims his father told him he couldn’t keep him safe and they agreed he would leave Afghanistan and the next morning he left for Kabul. The applicant claims his father also received further Taliban warnings/threats after he left Afghanistan and due to these threats, his family (his parents, three of his brothers and one of his sisters) are moving around Ghazni, not staying in one place for too long.

13.    The applicant has provided what he claims are copies of four Taliban threat/warning letters given to his father, all of which address his father personally:

•    The June 2012 letter accuses the applicant’s father of organising un-Islamic training for women studying infidel subjects and demands that he stop.

•    The October 2012 letter accuses the applicant’s father of, despite being warned previously, continuing his anti-Islamic activities leading women and girls against Sharia law and of serving Jews and Christians. It states he is not repentant and threatens that Allah willing, he and his children will face consequences and will “go to hill very soon”.

•    The February 2016 letter states they had previously spoken to the applicant’s father and sent a letter about his working at the “infidels NGO”. It also states they had asked him to send his son (the applicant) to serve them but he escaped. They request the applicant’s father summon him, or that another of the sons be sent to join them immediately.

•    The October 2016 letter accuses the applicant’s father of “always serving the infidel and also encouraging his son to follow his path”. It refers to their earlier failed request for the applicant’s father to send him or another son to join the Mujahidin and states that he would be punished for his wrongdoing.

14.    I accept the applicant’s claims with regards to his father’s employment and his own voluntary involvement in the SCA, an NGO which as the delegate noted, works in the healthcare, disability and rural development sectors and most relevantly to the applicant’s circumstances, establishes schools and training centres and promotes women’s rights.

15.    I accept the applicant’s evidence that his father has worked as an SCA project manager for more than 14 years, working five days a week, and that for much of this time he has managed around 24 employees. I accept the applicant’s father is based in the office but I have some reservations about the applicant’s claims that his is permanently in the office and does not go out on site or field visits. It does not seem plausible to me that a lead project manager in a field office in Ghazni would not on occasion need to visit a project site, or attend another location in the course of their work. I consider the applicant has embellished on this aspect of his claims.

16.    I accept the applicant’s volunteering role involved doing some typing in the office and accompanying educators when they went to train teachers or deliver their own training sessions to civilians in other areas of Ghazni. I accept this often took place in schools or mosques and that the training topics included inter alia, human rights, children’s rights and gender issues or women’s rights. I am satisfied on the evidence that the applicant’s role in these scenarios was limited to observing, that he attended the SCA voluntarily when he “felt like it” outside of his school hours and that he did not carry any responsibilities.

17.    Country information considered by the delegate including the United Nations High Commissioner for Refugees’ (UNHCR’s) 2013 and 2016 Eligibility Guidelines, the 2017 report from the Department of Foreign Affairs and Trade (DFAT) and the European Asylum Support Office’s (EASO’s) 2018 Country Guidance report for Afghanistan notes the existence of reports of Anti-Government Elements (AGEs) including the Taliban targeting civilians employed by international humanitarian and development agencies, as well as human rights defenders and others with international or government associations. Various EASO reports considered by the delegate indicate that the Taliban were highly active around Ghazni city when the applicant lived there and that they have maintained a presence there. It is plausible that the Taliban and other AGEs have targeted SCA employees or employees of similar agencies.

18.    However I have concerns with the veracity of the applicant’s claims that this happened to him and his family.

19.    I have difficulty accepting that as someone who grew up in an environment which, as noted above, had a highly active Taliban presence, and as someone whose father went to and from work under security escort and worked in a guarded building, and who himself volunteered in that guarded building, the applicant would have treated the phone threat as a joke and not mentioned it to his father. I also have some concerns about discrepancies between the applicant’s accounts as to whether the motorbike incident occurred two days (as per his written statement of 1 June 2017) or two weeks (as per his evidence in the SHEV interview) after receiving the threatening phone call, and also as to whether he pushed the person and escaped as he was attempting to take out his gun (as per his written statement of 1 June 2017) or whether the gun was actually being pointed at him when he escaped (as per his evidence in the SHEV interview). I also have some doubts about the plausibility of the applicant being able to escape by pushing the person with the gun.

20.    The applicant’s descriptions of the warnings/threats vacillate between the whether the Taliban were focussed on his involvement with the SCA or the fact that he hadn’t joined them or both. While in his written claims the applicant stated his threatening phone call focused on his work with the infidels, it wasn’t until the SHEV interview that he said they also asked him to join them. I have concerns about this earlier omission and find the applicant has painted a confused picture of the issues the Taliban took with him. I also have concerns with the plausibility of the Taliban trying to recruit the applicant in the same conversation (or in the same letter) that they were accusing him and threatening to harm him for doing un-Islamic activities and working with infidels, their enemies.

21.    I have concerns too about the plausibility of the applicant’s father reacting by immediately arranging for him to leave Ghazni and Afghanistan following the phone call and the motorbike incident but not making similar arrangements in respect of any other family members who, applicant claims (and the letters also suggest) were also being threatened. I note the father’s comment about trying to ‘sort it out’ but there is no evidence before me of any protective or precautionary measures put in place for any other family members in the following two years. On the evidence, the only family members to leave the area after the applicant left were his brothers who went to Jalalabad and I am satisfied this was not for around two years after the applicant’s departure and that they did not face problems in Ghazni in these intervening two years. I am satisfied that rather than leaving Ghazni for Jalalabad for safety reasons, they went there to undertake their tertiary studies.

22.    Apart from the motorbike incident (which I have noted my other concerns about), there is no evidence to suggest that the Taliban took any steps to attempt to apprehend or physically harm the applicant, his father or any member of his family. I have difficulty accepting the Taliban issued repeated warnings/threats in the manner claimed and over the timeframe claimed without taking steps to carry out their threat, particularly as all their demands continued unmet.

23.    I also have concerns about the evidence the applicant has given with respect to his brothers with whom he claims he has lost contact. In the SHEV interview the delegate noted the family appeared to be a close family and his brothers would likely have needed financial assistance in this time. She put to him that it was difficult to accept noting these factors, and especially in this age of social media, that the family do not know where his brothers are and have had no contact with them in the past few years. The applicant maintained that they had gone to India and told their father from there that they did not want to come back. He said “we don’t know if they’re alive or not” or what might have happened to them. I have considered the applicant’s responses but I concur with the sentiments the delegate expressed in the SHEV interview and I am unconvinced by the applicant’s responses. While I accept his brothers are overseas, I do not accept they disappeared as the applicant claims and nor do I accept their absence resulted from them being targeted by the Taliban, or anyone.

24.    While the applicant claims that in recent years his family have had to keep moving house to avoid the Taliban he confirmed at the SHEV interview that his father is still working at the SCA office in Ghazni and his younger brothers are still attending the same school. He said they are able to because they receive protection. However this is inconsistent with his claims and his purported letter from the SCA suggesting that only his father receives protection; not the other family members. I have concerns about this inconsistency and I also consider it implausible that the applicant’s family would keep moving their residency but maintain other routines. The applicant claims the threat letters were not delivered at home or to his father’s workplace due to the security presence but were hand delivered to his father by unknown people when they saw him out in the city. This seems implausible to me but even in the event that this were true, I would still find the evidence concerning because it indicates to me that his father continued to go out and about and was able to be found by people acting for the Taliban but was not subject to any other action from them. I am satisfied that had they wanted to, the Taliban had opportunities to harm the applicant’s father or other family members.

25.    I am nonetheless prepared to accept the applicant’s submissions that SCA workers he knew and employees of other similar organisations have been targeted for kidnappings and other harm in Afghanistan. As noted by the delegate, sources such as DFAT, EASO and UNHCR have reported on the targeting of people with government or international associations. Given the longevity of the applicant’s father’s service in the SCA in Ghazni, I accept the Taliban may be aware of his father’s work and I accept the SCA offers some limited protections to its employees. However given my numerous concerns with the inconsistencies and implausibilities outlined above, I am not satisfied that the applicant’s claims of his being targeted by the Taliban for his SCA work/association or for his father’s role and association with the SCA are credible. I do not accept that the applicant received a threatening phone call or that the motorbike incident occurred. I do not accept his father and family have been receiving threatening phone calls and letters, that they have had to move houses, or that his brothers went to Jalalabad and left the country because they were being threatened by the Taliban. I do not accept the applicant is of adverse interest to the Taliban for these claimed reasons.

26.     Given my findings in the preceding paragraph, the limited and irregular nature of the applicant’s volunteering with the SCA and that around six years have passed since he was last in Afghanistan and was engaged with the SCA, I do not accept there is a real chance the applicant would be identified as having been associated with the SCA and will be harmed on this basis, nor for his familial connection to this father. I do not accept there is a real chance of the applicant facing harm due to his past association or his father’s ongoing association with the SCA.

[emphasis in original] [sic]

18    The critical paragraph in terms of a challenge made both before the learned primary judge and on appeal is [19]. In respect of the findings in this paragraph, the learned primary judge concluded that the Authority was mistaken, in fact, in the statement that the motorbike incident had occurred two days after the threatening phone call.

19    I can find no support either in the statement of 1 June 2017 or the summary offered by the delegate of the SHEV interview for the two day qualification. Nor does the Authority in [19], unlike in other paragraphs such as [23] and [24], make reference in relation to this particular fact to two days as flowing from the SHEV interview. Rather, the two day position is attributed to the statement of 1 June 2017, and it just does not appear there. So, I share the conclusion of the primary judge. Indeed the Minister did not seek to contradict that particular conclusion, reached by the learned primary judge. That factual error formed one part of the attack which the appellant mounted on the ultimate conclusion of the learned primary judge that there was no material illogicality or irrationality or, perhaps better put, that nothing in terms of illogicality or irrationality flowed from that particular factual error.

20    As developed in submissions, the appellant's case was akin to that in relation to which I found jurisdictional error in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 (SZLGP), at [33] – [37]. In particular, I understood the appellant’s case to be to adopt a description which commended itself to me in SZLGP, that this was a case where the adjectives “ignorant”, “arbitrary” and “perverse” applied because there was a process of reasoning which damned a man’s credibility by reference to a false factual premise which was critical.

21    The difficulty for the appellant, and this was revealed was by the primary judge, is that there were other facts as well to which the Authority referred which grounded an adverse assessment in relation to the events, namely, the motorbike incident and the telephone call, which lay at the heart of the claim for the protection visa.

22    Initially, it seemed to me from submissions made for the appellant that there may be another factual error in [19] arising from the Authority’s reference to “whether the gun was actually being pointed at him”. Viewed against the background of the statement of 1 June 2017 and the summary offered by the delegate of the SHEV interview, there was just no support at all, in my view, for a finding that the gun had been pointed at the appellant. However, as Mr Keim, Senior Counsel for the appellant, very fairly conceded, support for that might be found in the contents of the recording of the SHEV interview, and that interview as recorded was not in evidence in the original jurisdiction. That being so, the Minister, not inappropriately, highlighted that there was an evidentiary embarrassment at large. Again, in fairness to Mr Keim, there was no pressing of error as opposed to a submission that the reasoning was, nonetheless, speculative.

23    Another feature of the Authority’s statements in [19] is the reference to “not mentioned it to his father” in relation to the claims of a threatening phone call. That gels with the way in which, at [7], the Authority summarised the appellant’s claims but, reading the reasons as a whole, as one must, it is tolerably clear that the Authority was well aware that the appellant had stated that the phone call had been reported to his father: see, in particular, [12] and [21].

24    One must be careful not to supply words which are not present in reasons, but equally, one must read reasons in context. So read, it seems to me that the point made by the Authority, albeit, with respect, clumsily, is just that one might have expected the threatening phone call to have been mentioned forthwith. A similar view, I note, was taken by the learned primary judge.

25    Other paragraphs of the reasons, as mentioned in the particulars of the ground of appeal, were developed in argument in a subsidiary way. These were dealt with in the original jurisdiction at a general level of abstraction by the learned primary judge in concluding that these also did not highlight illogicality or irrationality. I rather suspect this may as with the appeal, have reflected emphasis in the course of oral submissions.

26    Were this a case where there was just one factual error, I could well see how an analogy with SZLGP and cases which have cited that with approval might be made out. It is certainly not the presence of a vexatious challenge which led to the conclusion by the learned primary judge, that there was no jurisdictional error. There is, as was put on behalf of the Minister, a different way of viewing these reasons once one reaches a view, as the learned judge did, and as I have, that the error made in [19] was not the only basis upon which credibility as to the claims was doubted. There were independent bases.

27    Further, as to the two day error itself, there was, as the learned primary judge pointed out, nonetheless, a temporal discrepancy if one excises the two days as between the written statement of 1 June 2017 read in a way that was open and the SHEV interview. That would mean that the case was one apt to adopt by the language of Thawley J in CED15 v Minister for Immigration and Border Protection [2018] FCA 451, at [23]. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. So, too, is reasoning which takes into account differences in statements at different times as to timings of particular incidents.

28    Something should, in fairness to the careful and thoughtful arguments of the appellant, be said about the statement of 1 June 2017.

29    In the third of the paragraphs quoted, the passage “Whilst I was returning home” might, perhaps, have become the subject of a separate paragraph, or it might not. It is certainly not the way the person fluent in both the appellant’s principal language and English has chosen to translate the statement into English. It is always necessary for administrators dealing with statements given in the first instance in a language other than English and translated into English to bear in mind that there may be imperfections in relation to the translation, or at least the rendition of the translation.

30    The Authority has not overtly acknowledged this, but again, to require that in each and every instance would be to counsel perfection rather than sufficiency. It is certainly possible to read the statement as the Authority did. The statement was translated on 22 June 2017. If there were a particular error thought to be significant by or on behalf of the appellant, more than a year passed between the translation and the delegate’s decision. I note that the appellant had the benefit in administrative proceedings leading up to the delegate's decision of the services of a registered migration agent who made a submission to the delegate on 15 June 2018.

31    Where there are material factual errors in respect of a critical part of a visa applicant's case, one must be conscious that a view formed as a result of false premises may colour the ways in which one comes to view other subjects. Equally, one must be careful in judicial review and in the exercise of appellate jurisdiction not to substitute one's own views for those of the person whose lawful task it is to reach such views.

32    Paragraphs 20 and 21 of the Authority’s reasons offer examples of circumstances like this. It is certainly possible in respect of the subjects covered in those paragraphs for different views to be reached, but that does not mean that either view is illogical. So, whilst I acknowledge the force on the merits, for example, of the submission that it is not necessarily the case that there might be some differentiation as between the appellant and younger brothers because of a different risk profile presented by the appellant in his undertaking work voluntarily around the city for SCA, compared with younger brothers who are moving only to school, I am obliged to rebuff that type of submission because otherwise that, truly, with respect, would descend into the merits.

33    Equally, as I raised with counsel in the course of submissions, were I deciding the case on the merits, and I most emphatically am not, I might well, based on personal experience with small arms and pistols in particular, have reached different views to the Authority about the likelihood or otherwise once the appellant got beyond, for example, 25 or 30 metres from those on the motorbike that he would be hit with a pistol shot. Again, though, that type of reaction must necessarily and firmly be resisted in the exercise of judicial power. Instead, one must acknowledge that the views expressed by the Authority on that subject in [19] are one way of viewing the material.

34    The result, therefore, is that I share the conclusions reached by the learned primary judge in his application of principle to the facts of the present case on the subject of whether or not a jurisdictional error of illogicality or irrationality was raised. The error which the Authority did make was not material in the sense described in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. There were quite separate bases upon which the Authority reached an adverse credibility finding in relation to the telephone and motorbike/pistol incidents.

35    That being so, the Authority’s ultimate satisfaction, or, rather, absence of satisfaction for the purposes of s 65 of the Act which necessarily led to confirmation of the visa refusal, was not attended with a jurisdictional error of illogicality or irrationality.

36    Those same sentiments attend, in my view, all of the findings which were sought to be challenged via the particularised ground of appeal. This is just one of those cases where reasonable people might reasonably differ, but that is not a circumstance which sounds in a conclusion of jurisdictional error.

37    For these reasons, the appeal must be dismissed.

Associate:    

Dated:    12 August 2020