Federal Court of Australia

BYH19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 157

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary judge on 18 November 2019 be set aside.

3.    There be orders in the nature of certiorari and mandamus quashing the decision of the Administrative Appeals Tribunal dated 29 April 2019 and remitting the matter to the Tribunal to be determined according to law.

4.    The First Respondent pay the Appellant’s costs of and incidental to the appeal, fixed in the sum of $12,000.

5.    The First Respondent pay the Appellant’s costs of and incidental to proceeding SYG 1167 of 2019 in the Federal Circuit Court, fixed in the sum of $7,467.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The Appellant has appealed from a decision of the Federal Circuit Court of Australia: BYH19 v Minister For Immigration & Anor [2019] FCCA 3310. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the Appellant a Protection Visa (Class XA) under the Migration Act 1958 (Cth).

2    For the reasons that follow, the appeal is allowed.

Background

3    The Appellant is a citizen of Pakistan. He is from Peshawar, a city in the province of Khyber Pakhtunkhwa. He arrived in Australia on a student visa in March 2013. That visa was valid until 15 March 2016. The Appellant applied for a Protection Visa on 23 July 2014.

4    In summary, the Appellant claimed that if returned to Pakistan he feared harm for the following reasons:

(1)    the Appellant’s father is involved in a construction company which has the government as a major client, making the Appellant a target for terrorist groups in Pakistan;

(2)    'Tehrek-e-Taliban', a group of terrorists in Peshawar, had allegedly sent him letters threatening to find him and kill him when he returned to Pakistan around April to May 2014;

(3)    Peshawar, where he resided in Pakistan, is very close to the Khyber Agency, a Taliban controlled area in which the Appellant claimed young people from the community were forcibly recruited to join the Taliban and asked to keep their beards; and

(4)    the Appellant was not safe in Pakistan as there have been many violent attacks and bombings, and that state does not have adequate resources to protect him.

5    The Appellant submitted various documents in support of his application, including two letters purportedly from the Taliban requiring him to report to a court and threatening him with death and a newspaper article dated 12 November 2014 describing a bomb allegedly placed in front of the Appellant’s uncle’s house. The newspaper article was published in the ‘Daily AAJ’, a newspaper from Peshawar, and stated (translated in English):

BOMB PLACED IN FRONT OF THE HOUSE IN KHAZANA DEACTIVATED

Unknown persons had placed explosive material in front of a businessman's house. Search operation by the Police

Peshawar (Crimes Reporter). Peshawar Police and Bomb Disposal Squad interrupted a terrorist plan by deactivating 5 kilo explosive material placed near a petrol pump. According to the details, Khazana Police Station received information yesterday about a suspicious item lying on the way near the petrol station in Shero Jhangi. At this, a large number of police force arrived at the scene; they surrounded the area and immediately called for BDU who declared the suspicious item as a bomb and exploded it using water charge. The entire city was shaken by the explosion, causing extreme fear among the people. According to BDU unknown terrorists had installed 5 kilo explosive material, linked with a time device, in order to spread terror.

6    On 19 February 2016, a delegate of the Minister refused to grant the Appellant a protection visa because the Appellant did not satisfy s 36(2) of the Act. That section provides:

36 Protection visas—criteria provided for by this Act

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

(a)     a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(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;

…

7    On 10 March 2016, the Appellant applied to the Tribunal for a review of the Minister’s decision. On 20 March 2019, the Appellant appeared before the Tribunal to give evidence and make submissions. He was accompanied by a registered migration agent and assisted by an interpreter. On 29 April 2019, the Tribunal affirmed the Minister’s decision not to grant the Appellant a Protection Visa.

8    The Tribunal, in its Statement of Decisions and Reasons (at [7]–[17]), set out the claims made by the Appellant in his Protection Visa application, as well as the further documents submitted to the Minister, including the letters purportedly from the Taliban and the newspaper article which the Appellant claims related to a bomb that was placed in front of his uncle’s home.

9    At [18] of the Reasons, the Tribunal noted that the delegate generally accepted the Appellant's claims to fear harm, but found it safe, practicable and reasonable for him to relocate to another city. The Tribunal then set out the evidence submitted by the Appellant and provided an overview of the submissions made by the Appellant during and after the Tribunal hearing (at [20]-[49]).

10    At [50]-[83] of its Reasons, the Tribunal set out its findings in relation to the Appellant’s claims. The Tribunal accepted that the Appellant “holds opinions that are not sympathetic with the Taliban or other religious extremists in Pakistan”, but did not accept that the Appellant “faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future, either separately or cumulatively, due to the opinions and beliefs he holds” (at [54]).

11    The Tribunal also accepted that the Appellant's father operated a construction business that had some connection with government officials and authorities (at [55]) and that the Appellant's siblings all live and work in and around Peshawar (at [56]). However, the Tribunal gave weight to the fact that the Appellant’s brother had been employed at his father’s business for some time and had not received any threats from the Taliban (at [55] and [58]).

12    The Tribunal concluded that the letters purportedly from the Taliban, and produced to the Tribunal by the Appellant, were fabricated (at [60]-[62]). Further, the Tribunal did not accept the Appellant’s claims about a bomb having been planted to target a family member (at [38] and [60]). Given it is this aspect of the Tribunal’s reasons which the Appellant seeks to impugn by the first ground of appeal, it is appropriate to set out the relevant paragraph in full:

38. [The Appellant] went on to say that the Taliban demanded money (two million rupees) from his maternal uncle who refused to pay them anything. He claimed that the Taliban then laid a bomb outside his uncle’s house. He said the police came and defused the bomb. He said that since that episode his uncle has been paying tithes to the Taliban. I asked [the Appellant] if he had told the delegate that the bomb actually blew up in front of his uncle’s house and he informed me that this indeed was what he had said to the delegate. He went on to tell me that the delegate gave greater weight to the independent news report he had submitted in which the bomb had been described as having been placed at or near a petrol station. I examined the news report…it states that the bomb had been located next to a petrol pump. I drew [the Appellant’s] attention to this and he said that a road lies between his uncle’s house and the petrol station. He reiterated that the bomb had been found in front of his uncle’s house. I note, however, that no houses are mentioned in the article. Meanwhile, [the Appellant] claims his uncle was approached by authorities in the course of their investigation, but none of the reporting suggests that investigators entertained the possibility that the bomb was laid to intimidate an individual who lived across the road from the petrol station after he refused to give money to the Taliban. It struck me that [the Appellant’s] claims about the bomb having been set directly to target a family member of his was tenuous, somewhat contradicted by available independent evidence, otherwise unsupported and somewhat far-fetched.

[emphasis added]

13    Further, the Tribunal did not accept that the Appellant’s “family started receiving telephone calls from the Taliban or any other group demanding money in the last two years, or ever” and concluded that the Appellant’s “claim about his family having received threatening demands for money over the telephone is a recent invention, and goes to [the] overall impression to the effect that he is, to a critical extent in this matter, unreliable” (at [63]).

14    Having regard to the foregoing, the Tribunal concluded that:

64. Generally, although I accept that the pushback against the Taliban in KPK province and other parts of Pakistan suffers occasional violent setbacks, and even though I accept that [the Appellant’s] family has a profile for its contractual work and other affiliations with state officials, I am not satisfied that [the Appellant] faces a real chance of being persecuted by the Taliban or any other extremist and/or militant group or any party in Pakistan in the reasonably foreseeable future. I am not satisfied on the evidence before me that he would be unable to avail himself of effective state protection from harassment from the non-state parties he describes in his claims. I find that the level of state protection available to [the Appellant], evident in the protection enjoyed by his family, is sufficient to meet standards considered and set out by Australian courts in relevant rulings, including MIMA v Respondents S152/2003 [2004] HCA 18. Although we explored the issue of relocation during the Tribunal hearing, I find that [the Appellant] does not need to relocate in order to avoid a real chance of being persecuted.

65. Meanwhile, I am not satisfied that [the Appellant] faces a real chance of being persecuted in Pakistan for reasons of his Pashtun ethnicity. Such a problem has evidently not been not [sic] faced by him or his family in KPK province. I am not satisfied on the evidence before me that he would face a real chance of being persecuted for reasons of his “race” or ethnicity in the event of trying to access KPK province form [sic] a port of entry in Pakistan. I give some weight to the fact that, travelling to and from Australia, he has travelled through such places three times without potentially relevant incident in fairly recent years.

66. I am not satisfied on the evidence before me that [the Appellant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for either separate or cumulative reasons of having stayed, or having sought asylum, in a Western country in general or Australia in particular.

67. On the basis of independent country information, I am not satisfied on the evidence before me that [the Appellant] faces a real chance of being persecuted in Pakistan due to his living close to the area called Khyber Agency.

68. Looking at when [the Appellant] lodged his protection visa application in 2014, I find on the evidence before me that he did so around the time he was already ill and foreseeing difficulties attending and completing his studies, and also soon after already having received warnings about non-attendance. This evidence of concurrent factors contributes cumulatively to my finding that he had strong motivations for lodging a protection visa application that had nothing to do with a genuine need for protection.

69. Having considered all of the evidence in its entirety, I am not satisfied that [the Appellant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any Convention-related reason. His claimed fear of being persecuted in Pakistan for a Convention-related reason is not well founded. He is not a refugee.

70. For the reasons given above, I am not satisfied that [the Appellant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

[emphasis added]

15    Having concluded that the Appellant did not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal went on to consider whether the Appellant met the requirements for complementary protection pursuant to s 36(2)(aa) of the Act by assessing whether there is a real risk that the Appellant would suffer significant harm if returned to Pakistan. The Tribunal was not satisfied that the Appellant is a person in respect of whom Australia owed protection obligations pursuant to s 36(2)(aa) of the Act, and therefore the Appellant did not satisfy the criterion in s 36(2) of the Act:

81. On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the Appellant] will suffer significant harm.

16    Accordingly, the Tribunal affirmed the decision of the Minister not to grant the Appellant a Protection Visa.

before the circuit court

17    By amended application filed on 8 October 2019, the Appellant applied to the Circuit Court for review of the Tribunal’s decision, raising two grounds of appeal:

1. In its assessment of a translation of a newspaper article provided by the Applicant, the Second Respondent (Tribunal):

a. failed to give real, genuine and proper consideration to relevant material before it; and/or

b. engaged in illogical and/or irrational reasoning.

2. The Tribunal failed to consider a report by the Department of Foreign Affairs (DFAT Country Information Report: Pakistan. 20 February 2019; DFAT Report), as well as other country information, which it was required to consider.

(Particulars omitted)

18    The Appellant was represented before the Circuit Court. That application was dismissed by the primary judge on 18 November 2019.

Appeal to this Court

19    On 12 December 2019, the Appellant filed a Notice of Appeal in this Court, submitting that the Decision of the Tribunal was affected by jurisdictional error for two reasons and that the Circuit Court erred in finding to the contrary. The grounds of appeal are as follows:

1. The Federal Circuit Court erred in:

a. failing to find that, in its decision of 29 April 2019 (Decision), the Tribunal:

i. failed to give real, genuine and proper consideration to relevant material before it; and/or

ii. engaged in illogical and/or irrational reasoning;

b. finding that the Tribunal identified a 'disconnect' between the 'heading' and the 'content' of an article provided by the Appellant in corroboration of his claims (Newspaper Article); and

c. finding that the Tribunal's adverse findings in respect of the Appellant's claims concerning the attempted bombing of his maternal uncle's house reflected a real and active intellectual engagement with the claims advanced by the Appellant.

Particulars

a. The Appellant provided a newspaper report which he claimed was about an attempted bombing of his maternal uncle's house (Newspaper Article).

b. The Tribunal did not accept that this bomb was set directly to target a family member of the Appellant: Decision at [38]. In reaching this finding, the Tribunal materially relied on, inter alia, the following premises:

i. a finding of a contradiction between the Newspaper Article and the Appellant's claims about the bomb: "[The Appellant] reiterated that the bomb had been found in front of his uncle's house. I note, however, that no houses are mentioned in this article" (Contradiction Premise) (Decision at [38], emphasis added); and

ii. a finding that "[The Appellant] claims his uncle was approached by authorities in the course of their investigation, but none of the reporting suggests that investigators entertained the possibility that the bomb was laid to intimidate an individual who lived across the road from the petrol station after he refused to give money to the Taliban" (Investigators Premise) (Decision at [38]).

c. The headline of the Newspaper Article is "BOMB PLACED IN FRONT OF THE HOUSE IN KHAZANA DEACTIVATED". The subheading of the Newspaper Article is "Unknown persons had placed explosive material in front of a businessman's house".

d. During his hearing before the Tribunal, the Appellant referred to the fact that the Newspaper Article referred to a house: Transcript p 17.

e. In the premises:

i. the Contradiction Premise was not open to the Tribunal and/or was illogical and/or irrational;

ii. the Contradiction Premise was inconsistent with the Tribunal having given real, genuine and proper consideration to the contents of the Newspaper Article or to the Appellant's evidence at the hearing in respect of the Newspaper Article; and/or

iii. In the alternative, if (as the Federal Circuit Court found) the Contradiction Premise solely related to the failure to mention a 'house' in the body of the article (as opposed to merely mentioning the house in the headline and subhead line), the Contradiction Premise was illogical and/or irrational.

f. In respect of the Investigators Premise, the Newspaper Article:

i. did not state what possibilities were entertained by the investigators;

ii. did not contain any material which directly contradicted the Appellant's claims; and

iii. did not purport to provide an exhaustive account of the investigation of the bombing or of all persons approached during the course of that investigation.

g. In the premises, the Investigators Premise:

i. was not open to the Tribunal and/or was illogical and/or irrational; and/or

ii. was inconsistent with real, genuine and proper consideration having been given to the contents of the Newspaper Article.

h. If the Tribunal had not relied on the Contradiction Premise and/or the Investigators Premise, there is a reasonable possibility that the Tribunal may have accepted the Appellant's account (as corroborated by the Newspaper Article) of an attempt to harm his family as wealthy businesspeople in Peshawar: Decision at [38]. If the Tribunal had done so, there is a reasonable possibility that it may have found:

i. that the Appellant had provided a credible account of his family's dealings with the Taliban;

ii. that the Appellant would face a real chance of persecution or a real risk of significant harm in Pakistan; and/or

iii. that the Appellant could not access effective state protection against such harm.

i. In the premises, the Tribunal's reliance on the Contradiction Premise and/or the Investigators Premise:

i. was material to its exercise of power; and

ii. resulted in jurisdictional error.

j. Consequently, the Federal Circuit Court erred in finding that the Decision was not affected by jurisdictional error.

2. The Federal Circuit Court erred in:

a. failing to find that the Tribunal failed to consider a report by the Department of Foreign Affairs (DFAT Country Information Report: Pakistan, 20 February 2019; DFAT Report) which it was required to consider;

b. finding that there was no proper basis to infer that the Tribunal did not take into account the whole of the DFAT Report; and

c. finding that there was no inconsistency between the Tribunal's findings and the contents of the DFAT Report.

Particulars

a. The Tribunal was required to consider the DFAT Report in making its decision: Ministerial Direction No 56 [3].

b. The DFAT Report included material relevant to:

i. whether the Appellant would face a real chance of being persecuted or a real risk of significant harm in Pakistan: DFAT Report [2.66], [2.69], [2. 72] and [2.84]; and

ii. whether the Appellant could receive effective state protection in Pakistan: DFAT Report [5.2], [5.11] and [5.12].

c. The Tribunal cited and considered the DFAT Report in respect of the prevalence of fraudulent documents in Pakistan: Decision at [33]. But it did not refer to the DFAT Report in respect of:

i. whether the Appellant would face a real chance of being persecuted in Pakistan;

ii. whether the Appellant could receive effective state protection in Pakistan; and

iii. whether the Appellant would face a real risk of significant harm in Pakistan.

d. The DFAT Report included information adverse to the conclusions reached by the Tribunal in each of the above respects. If the Tribunal had considered the DFAT Report in the course of reaching these conclusions, it would have referred to the DFAT Report, even if only to indicate why it had preferred other evidence: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS) at [49]-[62].

e. In the premises, the Tribunal failed to consider the DFAT Report despite:

i. its requirement to do so under Ministerial Direction No 56;

ii. its requirement to do so because the DFAT Report was cogent evidentiary material relevant to its assessment of whether the Appellant would face a real chance of persecution or a real risk of significant harm or could receive effective state protection in Pakistan: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111 ]-[112]; and

iii. its requirement to do so in order to form the state of satisfaction required of it by the Migration Act: MZYTS at [34] and [46].

f. Consequently, the Federal Circuit Court erred in finding that the Decision was not affected by jurisdictional error.

20    The two grounds of appeal are true alternatives, in the sense that each operates independently from the other and the appeal would be allowed if the Appellant succeeded on either ground.

Ground one

21    By the first ground of appeal, the Appellant submitted that the Tribunal failed to give real, genuine and proper consideration to the Appellant’s claim that the Taliban placed a bomb outside his uncle’s house to intimidate him into paying money and/or engaged in illogical or irrational reasoning in relation to the same.

22    This ground of appeal turns on a newspaper article the Appellant provided to the Tribunal, extracted above at [5]. The Tribunal found that the Appellant’s claim about the bomb allegedly placed outside his uncle’s house “was tenuous, somewhat contradicted by available independent evidence, otherwise unsupported and somewhat far-fetched” because, inter alia, (1) there were no houses mentioned in the article; and (2) the article does not suggest that the bomb was laid to intimidate an individual who lived across the road from the petrol station after he refused to give money to the Taliban. The Appellant submitted that the Tribunal erred in respect of both limbs of its reasoning.

First limb of the Tribunal’s reasoning

23    In respect of the first limb, the Appellant submitted that the Tribunal erred in finding that the article does not mention any houses, when the headline of the article is “BOMB PLACED IN FRONT OF THE HOUSE IN KHAZANA DEACTIVATED” [emphasis added] and the sub-heading is “Unknown persons had placed explosive material in front of a businessman’s house. Search operation by the Police” [emphasis added]. In addition to the fact that both the headline and sub-heading of the article mention a house, the Appellant explained during the Tribunal hearing on 20 March 2019 that the house was located across the road from the petrol pump referred to in the body of the article.

24    The Appellant submitted that the Tribunal either ignored, or failed to consider, the reference to a house in the headline and sub-heading of the article and found, in error, that the article contradicted the Appellant’s claims because it did not refer to any houses when, in fact, the article did support the Appellant’s claim. It followed that the Tribunal’s finding was unreasonable, illogical or irrational: see, eg, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; 181 FCR 113 at [37] (Logan J).

25    The Appellant made the same submission before the Circuit Court. The primary judge dismissed the ground and held that the Tribunal identified a “disconnect between the heading and the content of the article” (at [34]-[35]):

As the Tribunal clearly identified in its reasoning, there was a disconnect between the heading and the content of the newspaper article. A reference in the heading to a businessman’s house was not referred to in the content of the newspaper article, as the Tribunal identified. The content of the newspaper referred to a petrol station and/or petrol pump….

It is a matter for the Tribunal to make findings in respect of the applicant’s claims. The disconnect in respect of the newspaper article was obvious from the heading to the content of the newspaper article and identified and properly engaged with by the Tribunal.

26    The Appellant submitted that the primary judge erred in finding that the Tribunal “clearly identified” a “disconnect between the heading and the content of the article”. The Tribunal did not ‘identify’ such a disconnect, it merely said that “no houses are mentioned in the article”. Alternatively, even if the Tribunal had found a disconnect between the heading and the content of the article, that would be an illogical or irrational basis on which to find that the article did not support the Appellant’s claims. The Tribunal did not suggest that the article was fabricated. To the contrary, it referred to it as “available independent evidence”. Further, the Appellant submitted that the headline and sub-heading are part of the article as a whole, and the Tribunal should have read the text of the article in the context of its headings.

27    The Minister submitted that, on a fair reading of the Tribunal’s reasons, it is apparent that the Tribunal was referring to the contents of the article, and not the headline or sub-heading, both of which appear to be inconsistent with the article. Properly read in this way, there was nothing illogical or irrational in the Tribunal concluding that the Appellant’s claim was unsupported and somewhat far-fetched.

28    The Minister further submitted that the Tribunal could not have ignored or overlooked the headings of the article, and what the Tribunal meant in its Reasons when it stated that “no houses are mentioned in the article” is that the content of the article is opposed to the headings of the article. The Tribunal then logically reasoned that the content of the article was to be preferred to the headings, and the headings were therefore inconsistent with the article.

29    In my view, it was not open to the Tribunal to find that no houses are mentioned in the article, when the headline and sub-heading of the article plainly state that a bomb was placed in front of a house. When reading a newspaper article, the purpose of the headline and sub-heading is to draw the attention of the reader to the subject matter of the article. The headline and sub-heading provide context for the content of the article, and the content should not be read in isolation of the headline or sub-heading. In my opinion, the Tribunal failed to give real, genuine and proper consideration to relevant material before it, including the headline and sub-heading, and thereby engaged in illogical or irrational reasoning.

30    Further, I agree with the Appellant’s submission that the primary judge erred in finding that the Tribunal identified a 'disconnect' between the heading and the content of the newspaper article. First, if the Tribunal had found a disconnect between the headings of the article and its content, it would have expressed that disconnect in its Reasons. It did not do so. Second, if the Tribunal did identify any disconnect, it was not open to do so. There was no finding by the Tribunal that the headings of the article were incorrect or wrongly attached to the article, nor was there any finding that the newspaper article had been fabricated. Further yet, there is no basis to regard a headline or sub-heading as irrelevant or erroneous simply because the body of the article expands upon the headings without reiterating the same subject matter.

31    The Tribunal made other adverse credibility findings against the Appellant, concluding that two letters purportedly from the Taliban, produced by the Appellant in support of his claims that he had been threatened, were fabricated. The Tribunal stated at [60]:

I conclude on the evidence before me that both letters are fabrications. One cumulative reason for this is that I consider it incongruous that the letter summons [the Appellant] to some kind of court without saying where or when; that is just illogical. Another such reason is that, whereas [the Appellant] claims that the Taliban kills people and their families for failing to respond to demands, nobody in [the Appellant]’s immediate family has been killed or suffered an attempted killing. [The Appellant] claims his uncle is an example of the kind of retribution the Taliban enacts when its demands are ignored or refused, but I do not accept on the evidence before me that the petrol station bomb had anything to do with [the Appellant]’s uncle, and I consider that [the Appellant]’s efforts to suggest such a link ultimately go against his overall reliability in this matter.

[emphasis added]

32    It is clear from the final sentence of [60], in combination with the Tribunal’s Reasons at [38], that the Tribunal’s adverse credibility finding was a cumulative finding based on its view that the two letters from the Taliban were fabricated and that the newspaper article did not support the Appellant’s claims. The Tribunal’s finding that the article contradicted the Appellant’s claim about there being an attack on his uncle’s house, because “no houses are mentioned in this article”, was not open to the Tribunal. The Tribunal thereby failed to have regard to the headings of the article and failed to read the article and headings as a whole. If that finding were removed from the matrix, a different result could have been reached. The error was therefore material in the sense contemplated by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ):

That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.

33    In relation to materiality, I refer to SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 where Lee J held at [44]:

It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way…as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive…”

34    Similarly, Beach J explained in in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46]:

If a Tribunal purports to make its decision on the combination of facts A, B and C, and fact C is shown to be incorrect, prima facie, materiality of the error on the face of the reasons would seem to be clear. By prima facie I mean that although that may be the starting position for a consideration of materiality, it may not be the end point for such a determination.

35    If the Tribunal had properly considered the newspaper article, it might have accepted the Appellant’s claims about the attempts to intimidate his uncle. This could have informed the Tribunal’s views about the Appellants’ credibility or the risk to him and his family in Peshawar, and resulted in a different outcome. The error may therefore be characterised as an intermingled finding, which led the Tribunal into jurisdictional error: CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362 at [61] (Murphy, Mortimer and O'Callaghan JJ).

Second limb of the Tribunal’s reasoning

36    In respect of the second limb of the Tribunal’s reasoning, the Appellant submitted that the Tribunal also erred in concluding that none of the reports suggested that investigators entertained the possibility that the bomb was laid to intimidate an individual who lived across the road from the petrol station after he refused to give money to the Taliban. The Appellant submitted that the article does not purport to provide an exhaustive account of the investigation of the bombing or of all persons approached during the course of the investigation. Plainly, it cannot therefore contradict the Appellant’s claims in this regard. At its highest, it merely fails to corroborate the Appellant’s claims and a mere failure to corroborate claims does not amount to contradiction of those claims.

37    The Appellant submitted that the error was material in the sense that if the Tribunal had not incorrectly interpreted the article as contradictory, it could have reached a different conclusion about whether the Appellant’s uncle had been targeted. This could have affected its ultimate conclusion in respect of both the Appellant’s credibility and whether the Appellant would be at risk of harm if returned to Pakistan.

38    In response, the Minister submitted that there was nothing illogical in the Tribunal noting that the article does not corroborate the Appellant’s claim in this regard. The Minister submitted that the findings made by the Tribunal do not rise to the level of legal unreasonableness in the sense of being a decision “at which no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130], [135] (Crennan and Bell JJ).

39    The Minister further submitted that even if the Tribunal’s conclusion about the article was illogical, it would not amount to a jurisdictional error because that illogicality would not affect the entire decision. That is, the Tribunal’s decision as a whole could not be rendered illogical because the findings about the article were not material. Even if the Tribunal had come to a different conclusion about the article, the Tribunal had made other adverse credibility findings about the Appellant in relation to his claims. At [60]-[63], the Tribunal held that the Appellant is unreliable, concluding that two letters produced by him were fabrications, and that the Appellant’s claims about his family having received threatening demands for money over the telephone was a recent invention.

40    In my view, the Tribunal erred in placing weight on the fact that none of the reports suggested that investigators entertained the possibility that the bomb was laid to intimidate an individual who lived across the road from the petrol station after he refused to give money to the Taliban. The article did not state what possibilities were entertained by investigators. Further, I agree with the Appellant’s submission that the article did not purport to provide an exhaustive account of the investigation of the bombing or the persons associated with that investigation. Accordingly, there was nothing in the article which directly contradicted the Appellant’s claims.

41    For the reasons I have expressed above, I regard the error as material. If the Tribunal had not erred, there is a reasonable possibility that the Tribunal may have accepted the Appellant's account of an attempt to harm a member of his family in Peshawar. This may have been relevant to an assessment of the Appellant’s credibility, the prospect that he would face a real chance of persecution or a real risk of significant harm in Pakistan and / or whether the Appellant could access effective state protection against such harm.

42    Ground one of the Notice of Appeal should be allowed.

Ground two

43    By the second ground of appeal, the Appellant submitted that the Tribunal erred by failing to consider relevant parts of a Department of Foreign Affairs and Trade (DFAT) Country Information Report dated 20 February 2019 regarding Pakistan (DFAT Report) in determining that the Appellant would not face a real chance of persecution in Pakistan and could access state protection on his return.

44    Ministerial Direction No 56 directs (at [3]) that:

Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

Depending on the circumstances, if the Tribunal fails to comply with Direction No 56 that might give rise to a jurisdictional error: see, eg, BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [37]-[39] (O’Callaghan J).

45    The Appellant submitted that the DFAT Report contained relevant information that was consistent with the Appellant’s claim to fear harm from violence in Peshawar, which directly related to whether the Appellant would face a real chance of persecution or a real risk of significant harm if he returned to Pakistan (at [2.66], [2.67], [2.69] and [2.72]). Further, the Appellant submitted that the DFAT Report contained relevant information on the availability of state protection in Pakistan (at [5.2], [5.11] and [5.12]). Notwithstanding the above, the Tribunal only referred to the DFAT Report once (at [33] of its Reasons), in a footnote in relation to the prevalence of forged documents in Pakistan.

46    The Appellant accepted that the Tribunal is not required to expressly refer to every piece of evidence before it in its Reasons, but submitted in its written submissions that:

The mere fact that the Tribunal considered one portion of the DFAT Report is not enough to establish that it referred to other relevant portions of the DFAT Report, or that it understood their significance in light of the issues arising for review. Mere advertence to or awareness of material is not sufficient to demonstrate that that material has been appropriately taken into account: Islam v Cash [2015] FCA 815 at [14]; MICMSMA v CTB19 [2020] FCAFC 166 at [29].

…

Where the Tribunal’s reasons do not expressly refer to something, it may hence be inferred (depending on the facts of each particular case) that it was not considered or taken into account: MIBP v SZSRS [2014] FCAFC 16 at [34]; ARG15 at 127-128 [65]-[67]. A failure to refer to highly relevant evidence may support a conclusion that the evidence was not taken into account: SZRKT at 120-121 [72]; AWG18 at [138]. Further, a failure to consider a relevant consideration (even one which has been acknowledged by the Tribunal) may be shown where, as in this case, an applicant would be ‘left to guess’ what role that consideration played in the Tribunal’s reasoning: Lafu v MIAC [2009] FCAFC 140 (Lafu) at [49].

47    The Minister submitted that the Appellant cannot establish that other parts of the DFAT Report were not considered simply by noting they were not specifically referred to by the Tribunal: see, eg, Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [32] (French CJ and Kiefel J), [73] (Gummow J). The Minister further submitted that the Tribunal’s reference to “the evidence before me” in paragraph [64] of its Reasons, and “independent country information” in paragraph [67], must have included the DFAT Report.

48    In reply, the Appellant submitted that it is not simply a question of whether the Tribunal was aware of the DFAT Report or even whether it read the report. The question is whether the Tribunal understood the importance of the passages relevant to the Appellant’s claims, and actively engaged with them in the course of making its findings to the requisite standard. The Appellant referred to AWG18 v Minister for Home Affairs [2020] FCA 744 where Greenwood J considered whether the Immigration Assessment Authority erred by failing to consider particular country information in reaching a conclusion about a particular matter and held (at [144]-[145]):

Having regard to the nature of the harm the reports speak to; the gender and ethnicity of the three female appellants; the circumstance that the organisations responsible for the reports are credible well-recognised organisations; and that the matters relied upon by the appellants, both as to the reports and the text, go to the heart of the claimed fear, this case seems to me to be that class of case where, if the material had been considered by the decision-maker, one could expect that it would have been referred to, even if it were then rejected: see particularly, MZYTS, the Court at [52]; SZSRS, the Court at [34].

Accordingly, I am satisfied that because there is no mention of the three reports emphasised and relied upon by the appellants or the text emphasised by them, in the relevant parts of the decision-maker’s decision, those reports and the emphasised text were not considered by the decision-maker. The reports were, and the emphasised text was, material to the claimed fear. As a result, the conclusion that the IAA failed to have regard to the reports and the emphasised text in the material part of its decision, engages the IAA in jurisdictional error.

[emphasis added]

49    In this instance, the Tribunal did not refer to any country information in support of its findings at [64]. These findings included that the Appellant does not face a real chance of being persecuted, that the Tribunal is not satisfied on the evidence before it that the Appellant will be unable to avail himself of effective state protection, and that the level of state protection is sufficient. Such findings were made despite evidence to the contrary outlined in the DFAT Report which refers specifically to the risk of harm faced by the Appellant and the availability of state protection in Pakistan, including:

2.66 The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.

2.67 Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

…

2.69 The security situation varies across the country, however, and militant attacks can occur anywhere. … Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196)…

…

2.72 The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.

…

5.1 Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.

5.2 Despite measures introduced to curb violence across the country under the NAP—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.

…

5.11 The effectiveness of provincial police forces in Pakistan and the challenges faced by these forces vary. However, overall, police capacity in Pakistan is limited, due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Sectarian violence and domestic terrorism diverts resources from community 'policing' to a more incident response and security/guarding role. Popular perception of high levels of police corruption is widespread. Overall, public perception of police is low.

5.12 Police are poorly paid and face poor working conditions, high personal security risks, and decreasing resources. Individual police officers often augment their salaries with bribes. In some provinces, police claim stations operate 24 hours a day, often with only eight to 16 staff per station. Police and government officers are often targeted for attack and militant groups often explicitly target police. This has a significant disruptive impact physically, mentally, and on resources and agency focus. In Khyber Pakhtunkhwa, the provincial police force recently bullet proofed over 500 vehicles and raised apartment buildings after losing 21 officers in 2017. The Khyber Pakhtunkhwa police force has lost approximately 1500 officers between 2006 and 2016.

50    In my view, the Ministerial Direction is not followed merely because the Tribunals refers in a general way to “evidence before me” (at [64]) or “independent country information” (at [67]). Nor is it sufficient that the Tribunal referred to the DFAT Report in an unrelated context, regarding the falsification of documents in Pakistan (at [33]). There is no other reference to the DFAT Report in its Reasons. I It is therefore impossible to infer how or if the Tribunal considered or reconciled the information in the DFAT Report with its findings that: the Appellant did not face a real chance of being persecuted in the reasonably foreseeable future; that it was not satisfied on the evidence before it that he will be unable to avail himself of effective state protection; and that the level of state protection available to him was sufficient.

51    I accept that the Tribunal, in order to properly discharge its functions and its obligation to give Reasons, is not required to refer to every piece of information or evidence before it. However, an assessment of the evidence referred to in the Tribunal’s Reasons should have regard to whether the findings that have been made are supported by reference to evidence. If there is little or no evidence referred to that supports those findings, then a failure to refer to evidence to the contrary takes on a greater significance. Indeed, the present circumstances are such that if the material had been considered by the Tribunal, one could expect that it would have been referred to, even if it were then rejected.

52    In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431, the Full Court of this Court (Kenny, Griffiths and Mortimer JJ) held at [50]:

…The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

53    In this case, the Tribunal did not refer to any of the evidence in the DFAT Report and did not explain why it reached the conclusion that the Appellant would not face a real chance of harm if returned to Pakistan, as claimed by him and supported by the country information in the DFAT Report. In those circumstances, it can be inferred that the Tribunal failed to have regard to and/or did not engage in a meaningful way with the information in the DFAT Report.

54    As in DZT18 v Minister for Home Affairs [2019] FCA 1639 at [24] (Davies J), the failure to consider relevant and cogent country information which impacted upon the Appellant’s claims constituted a jurisdictional error. If the Tribunal had considered the DFAT Report, it could have concluded that – despite its other findings about the Appellant’s credibility – there was nonetheless a real chance or a real risk that he would experience harm if removed to Pakistan, or that the Appellant’s family would not receive adequate state protection. There is a realistic possibility that, if the Tribunal had taken this information into account, it could have concluded that the Appellant would be at risk if removed to Pakistan, notwithstanding its other findings in relation the Appellant’s credibility.

55    Ground two of the Notice of Appeal should also be allowed.

costs

56    At the hearing of the appeal, the Minister sought fixed costs of $3,450 in the event the appeal was dismissed, supported by an affidavit of Jennifer Strugnell dated 26 October 2020. In the event that I allowed the appeal, and attempting to discourage any disputation about costs, I granted leave for the Appellant to put forward a similar assessment of costs.

57    Pursuant to that leave, the Appellant filed an affidavit of Hoda Shafizadeh dated 14 December 2020. That affidavit indicated that the Appellant’s costs of and incidental to this proceeding should be fixed in the sum of $12,000 (or such other sum as the Court thinks fit) and those costs of and incidental to the Circuit Court proceeding should be fixed in the sum of $7,647 (or such other sum as the Court thinks fit). The First Respondent did not oppose the fixed costs specified by the Appellant, assuming the appeal was allowed.

58    Having regard to the views I have expressed above, and the fact that the same grounds of appeal were raised in the Circuit Court, I have made orders requiring that the Minister pay the Appellant’s costs in both the present proceeding and the Circuit Court proceeding, in the amounts fixed above.

disposition

59    For the reasons given above, the appeal is allowed.

Associate:

Dated:    3 March 2021