Federal Court of Australia

CXX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 239

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.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant appeals from a judgment of the Federal Circuit Court dismissing his application for judicial review of a decision of the Immigration Assessment Authority that had affirmed a decision of a delegate of the Minister refusing to grant to the appellant a safe haven enterprise visa (the visa).

2    The appellant presses only one of his grounds of appeal to the effect that the primary judge erred in failing to find that the Authority had made a jurisdictional error by making a finding that was legally unreasonable.

3    For the reasons that follow, this ground is not made out.

4    Let me begin with some background and then I will turn to the Authority’s reasons.

5    The appellant first arrived in Australia on 11 November 2012 as an unauthorised maritime arrival. On 13 February 2017 he applied for the visa. He claimed to be a citizen of Afghanistan.

6    In support of his application, the appellant raised the following matters. He said that he was born in Ghazni Province, Afghanistan in 1987. He said that when he was five years old, he and his family moved to Pakistan, where they subsequently lived. Apparently, on his version, he had no legal right to live in Pakistan. In early 2011, so the appellant asserted, the appellant’s brother returned to Afghanistan looking for work. The brother obtained employment working with foreign military forces in a kitchen. But in late 2011, the appellant’s relatives called and told the appellant that his brother had been killed by the Taliban because he was working for foreigners. Soon after, so the appellant asserted, the appellant received a call from the Taliban threatening to kill him.

7    The appellant says that if he is returned to Afghanistan, the Taliban would kill him because of his relationship with his brother. The appellant also feared being targeted by his cousins in his home village in Afghanistan, as his father was in a land dispute with them.

8    On 13 June 2019, a delegate of the Minister refused to grant the visa.

9    On 18 June 2019, the delegate’s decision was referred to the Authority for review.

10    On 12 July 2019, the Authority affirmed the delegate’s decision.

11    The Authority accepted the appellant’s claims as to his name, date of birth and that he was a Sunni Pashtun. However, the Authority held real doubt as to the appellant’s claim that he had, since aged five, lived as an undocumented Afghan refugee in Pakistan.

12    The Authority considered the appellant’s Afghan taskera, but had concerns about the veracity of the appellant’s claims as to how he obtained it and the authenticity of the document itself.

13    The Authority considered that the appellant’s evidence as to how he obtained the taskera was inconsistent with country information. It found it difficult to accept that the appellant could have obtained the taskera in the manner that he claimed and placed little weight on the document as genuine evidence of the appellant’s identity.

14    The Authority observed that the document was issued in 2006, some five years before the appellant’s cousin purportedly gave it to him. The Authority found it implausible that the appellant would, as he claimed, have contacted his cousin and asked him to obtain the taskera on his behalf, given the appellant’s claim that he had had little contact with his family in Afghanistan following a land dispute in the early 1990s and that he feared they would kill him should he return to Afghanistan.

15    The Authority also observed that the appellant had failed to provide any evidence of the Afghan citizenship of any other family member, such as a taskera for his mother or father. The Authority found it implausible that the appellant or his cousin could have circumvented the requirement that a taskera belonging to an immediately family member be provided in order for a taskera to be issued to the appellant, especially given the length of the appellant’s family’s absence from Afghanistan.

16    The Authority also observed that taskeras are printed on standard paper and do not have any security features, and that the available country information indicated that there were high rates of taskera fraud.

17    Further, the Authority considered that the appellant’s evidence regarding his claimed family situation lacked credibility.

18    The Authority considered that the appellant’s evidence to the delegate regarding his life in Pakistan from 1992 until 2012 was problematic. In this context, it was pointed out that the appellant had consistently claimed that he and his family resided in the Khyber Pakhtunkhwa Province (KPP) as undocumented Afghan refugees. But the Authority observed that, since 2007, Afghans in Pakistan have been able to obtain proof of residency cards or citizenship cards, which conferred substantial benefits on their holder. Further, the Authority had difficulty accepting that the appellant and his family had made no efforts to register themselves with the Pakistani authorities under one of these schemes. The Authority also referred to other inconsistencies and implausibilities concerning education and the operation of the family business in Pakistan.

19    The Authority also did not find credible the appellant’s claim that his family in Pakistan did not work because they were undocumented Afghan refugees or that they were solely reliant on him for financial support. It also had concerns with the appellant’s claim to have departed Pakistan in January 2012 using a fraudulent Pakistani passport.

20    On the basis of the foregoing, the Authority was not satisfied that the appellant or any member of his immediate family were Afghan nationals or that any land dispute had taken place. Generally, the Authority considered that the appellant’s evidence about his life in Pakistan was consistent with that of a Pakistani national, rather than that of a displaced Afghan. The Authority was satisfied that the appellant was a Pakistani national from KPP.

21    Further, the Authority found that the appellant’s claims regarding his brother’s death and the subsequent adverse attention from the Taliban to be lacking credibility and contrived. The Authority was not satisfied that the appellant faced a real chance of harm in KPP because he was a Sunni Pashtun, on account of any medical conditions, or as a returning asylum seeker. Accordingly, the Authority concluded that the appellant did not have a well-founded fear of persecution within the meaning given by s 5J of the Migration Act 1958 (Cth), and so did not meet the criterion set out in s 36(2)(a) of the Act.

22    Further, the Authority was not satisfied that the appellant faced a real risk of significant harm and so did not meet the criterion set out in s 36(2)(aa) of the Act.

23    For these reasons, the Authority affirmed the decision of the delegate.

24    The appellant then sought judicial review in the Federal Circuit Court, but his application was unsuccessful.

25    Before the primary judge, the appellant advanced two grounds of review. I can put the first ground to one side save as to an aspect of it that was picked up and related to the second ground. The second ground asserted unreasonableness relating to the finding that the appellant was a Pakistani national. It was said that this finding was based upon a mistake of fact that the appellant had received his taskera from his cousin in 2011.

26    Now the primary judge in relation to the first ground said (at [37] and [38]):

Ground one asserts that there was no evidence for the Authority to make the finding that the applicant only received his identity document or taskera in 2011, from his cousin. Counsel for the applicant points out that there was no claim made by the applicant that this was the case. There was no evidence as to when the applicant received the document. The only evidence in relation to the cousin was that the applicant last saw him in 2011, not that he received the document from him then.

The Court accepts that the finding does not reflect the evidence. The question then becomes whether or not the finding was critical to the outcome of the matter, or to put it another way, dispositive. It is to be noted that the Authority had a number of concerns about the authenticity of the document and then, its impact on whether or not the applicant was indeed an Afghan or Pakistani national.

27    Then when the primary judge addressed the second ground, he said (at [49] and [51] to [54]):

Furthermore, as indicated above, even if the Authority made a mistake of fact as to when the applicant obtained the taskera from his cousin, unless it was dispositive, no jurisdictional error arises.

…

As outlined above, there was a multiplicity of facts that lead the Authority to come to the conclusion that the applicant was a Pakistani national and not an Afghan national, as claimed. These included that, the applicant told the delegate he had, “little contact with his family in Afghanistan following a land dispute between them.”

The Authority found, that it was implausible that the applicant would then be able to contact his cousin, and ask him to obtain a taskera. The claim that the document was obtained without the applicant providing any other evidence to prove his Afghan nationality, also weighed against the applicant. This was in contradiction to country information and again, the Authority noted that taskeras are printed on plain paper, with no security features and there are high rates of document fraud in Afghanistan.

The Authority also made a number of findings including the fact that the applicant claimed to be undocumented in Pakistan, notwithstanding the fact he was able to own and run a business, without any sort of business or personal documentation. The Authority did not accept it as credible that the applicant had family in Pakistan, who did not work because they were undocumented and that they solely relied upon him for financial support.

The Court is satisfied it was the cumulative weight of the Authority’s findings, as to the credibility of the claims made by the applicant, that were dispositive of the matter. Even if the Court accepts the submission that the applicant only received his taskera in 2011, which it is submitted was not correct, the Court does not think that this would have been dispositive of the claims.

28    The primary judge then went on to say (at [55] to [57]):

The Court is satisfied that even if the finding by the Authority was incorrect, it did not ultimately make a difference to the applicant’s claims. It did not make a difference to the overall outcome.

The Authority made numerous findings of fact that were against the applicant, the finding of fact in relation to the taskera did not result in a poisoning of the well and it was not a situation whereby it was critical in terms of being a turn on the road, for the ultimate outcome.

Credibility, of course, which the applicant made numerous findings for, are a matter for the Authority which is best placed to judge, not this Court.

29    Accordingly, the appellant’s application was dismissed.

Ground of appeal

30    As I have said, the appellant now only presses one ground of appeal.

31    It is said that the primary judge erred in failing to hold that the Authority had made a jurisdictional error by making a finding which was legally unreasonable concerning the finding that the appellant was a Pakistani national.

32    The appellant has directed attention to the Authority’s findings with respect to the appellant’s taskera, particularly at [9] to [12] which said:

The applicant has provided what he claims in his original “taskera”, or identity document, from Afghanistan with an English translation. During the SHEV interview the applicant told the delegate that in order to obtain a taskera he gave his photo to his cousin in Afghanistan, who obtained this taskera on his behalf and then his cousin gave it to him when he visited Pakistan in 2011. I have significant concerns about the veracity of this claim and about the document itself. Firstly, the document was issued in 2006, some five years before the applicant’s cousin purportedly gave it to him. Secondly, the applicant told the delegate that he had had little contact with his family in Afghanistan following the land dispute of the early 1990s, and that he fears they would kill him should he return to Afghanistan. I find it implausible that in these circumstances the applicant would contact his cousin (even if this particular cousin was not directly involved in the land dispute as the applicant has claimed) and ask him to obtain a taskera on his behalf.

Thirdly, the applicant’s evidence regarding how he was able to obtain a taskera is at odds with a range of country information sources before the delegate. When the delegate put to the applicant that, generally speaking, an Afghan national must present to the authorities in their home area of Afghanistan in order to be issued a taskera, he responded that his case was different because his family were well known, and their family records were held at the government office in Ghazni, so he did not have to go there personally. The document the applicant has identified as his taskera shows his father’s and grandfather’s name. He told the delegate that all he gave his cousin in Afghanistan was his photo, and he did not have to provide evidence of any other family members’ Afghan citizenship (such as a taskera for his mother or father).

Country information indicates applications for taskeras made at district office level in Afghanistan require an attestation of identity and residential status by a local community leader, and in instances where the identity of the applicant is uncertain, the local police department must also attest to their identity before the application is approved by the district statistics department. Applications at provincial capital cities are processed and approved by the area chief of the city district authority and also require an attestation of identity at this level. Other sources also indicate that in order to obtain a taskera one must present at least one parent’s taskera, with some sources indicating it must be the father’s taskera. I find it implausible, even if the applicant’s family were well known, and their family records held in Ghazni, that he (or his cousin) could have circumvented the requirement to provide a taskera from an immediate family member, particularly given the length of the family’s absence from the province.

Fourthly, taskeras are printed on standard paper, and apart from a Ministry of the Interior wet stamp, do not have any security features. There are high rates of taskera fraud (either fraudulent copies or valid blank documents which have been fraudulently obtained) in Pakistan, particularly in KPP where the applicant claims to have resided for twenty years. The Danish ID Centre also notes that bribes and illegal production of documents are a widespread phenomenon in Afghanistan, and that forged documents and documents issued by competent authorities may contain both correct and incorrect information. While the country information before the delegate indicates that taskeras lack physical security features, vary in format according to when they were issued, and are subject to high rates of fraud, it also indicates that the (legal) process for obtaining one is fairly uniform and, as noted above, the taskera applicant, generally speaking, must present in person in Afghanistan, preferably in their home area. Overall I consider the applicant’s evidence as to how he came to obtain his taskera is, for the most part, inconsistent with the country information before the delegate and I find it difficult to accept the applicant could have obtained a genuine taskera in the manner claimed. I place little weight on this document as genuine evidence of the applicant’s identity.

33    Now the visa interview referred to by the Authority at [9] comprised exchanges between the interviewer (J) and the appellant (A) speaking through an interpreter.

34    During the course of the interview the following exchange took place:

J: Now I note that you have provided the original of a taskera and an English translation of a taskera today

A: Yes

J: Ok so looking at the translation of the taskera, it’s indicating given name of [X], surname of [Y]

A: Yes

J: Fathers name [XX], son of [YY]

A: Yep

J: It states your place of birth as [A] (?)

A: Correct

J: It states your date of birth as 20 years of age in 2006/2007

A: That’s right

J: It also indicates that it was issued in [A] (?) on […] 2006, which is the equivalent in the Persian calendar on […] 1385

A: That’s right

...

J: Ok. This is indicating that it was issued to someone in 2006. Who was this document issued to?

A: My cousin

J: What’s your cousin’s name?

A: [Z] – I can spell it to you – [Z]

...

J: Where does [Z] live?

A: He lives in Afghanistan

J: Whereabouts in Afghanistan?

A: In our village in [B] (?) in our village

J: This is [A]? [A] (?)

A: Yes in [A] (?) Yes

J: Do you have contact with your cousin?

A: No, no I don’t have any contact with him

J: When was the last contact?

A: In 2011 I met him in Pakistan he was in Pakistan at that time he came to Pakistan

J: Any other contact since then?

A: No

J: Ok. Can you explain for me how your cousin was able to get your taskera?

A: He know our (inaudible) has been well known to local officers and they were aware this was from our relatives and our elders have been respected so that’s why it was dangerous for me to go so they have created for me

J: Did you present any documents to your cousin for your cousin to get the taskera?

A: I have only provided with my photos then they checked in the whatever in the record, name and history and they have issued the taskera

J: So you presented some photos. Any other information that was presented for you to get that taskera?

A: I have only provided with my date of birth and the rest they were aware of everything - everything is in the record - our tribe and our village like our father, grandfather names and everything they know that in the record

35    Later, there were further exchanges relating to the taskera including the following:

J: Are these the same cousins who got you your taskera back in 2006 / 1385?

A: No the taskera was obtained by MY cousin – my father has fighting argument on the land with HIS cousin.

...

J: When was the last contact with anyone in Afghanistan?

A: The last time when I spoke with someone was my cousin regarding my taskera in 2012. Or I believe 2011. 2011. 2011.

36    The appellant said that the factual error by the Authority, and as accepted by the primary judge, was its statement that “During the SHEV interview the applicant told the delegate that ... his cousin gave [the taskera] to him when he visited Pakistan in 2011”. Clearly, from the exchanges set out above, the appellant did not expressly say that to the interviewer.

37    Further, the appellant said that the Authority’s words should not be strained as if they read that the appellant implied or may be inferred to have meant that his cousin gave the taskera to him on the visit to Pakistan in 2011.

38    Now the appellant mentioned the 2011 visit as his most recent contact in person with the cousin. But it is said that it should not be concluded that, five years after the cousin was said to have obtained the taskera for the appellant, the most recent encounter was when the cousin gave the document to the appellant.

39    Further, it was said that the appellant referred to providing a photograph to the cousin in order to obtain the taskera, which according to counsel for the appellant suggests either more than one contact in person or another means of communication between the two. It is said that this raises the possibility that the appellant saw the cousin in person and received the taskera before 2011 or received the taskera from the cousin by some other means.

40    Further, it is said that none of the foregoing is displaced by the fact that the appellant referred at the interview to speaking to his cousin “regarding my taskera” in 2011. It is said that the appellant may have referred to the cousin in this way to distinguish him from cousins referred to earlier in the interview. Alternatively, it is said that if the appellant was suggesting that he spoke to the cousin regarding the taskera in 2011, this did not lead to the conclusion that the cousin delivered the taskera to the appellant in Pakistan by hand in 2011.

41    In short, so the appellant submitted, the Authority made a factual error. On the material before the Authority, there was no relevant justification for concluding that the appellant suggested that he had received the taskera from the cousin face to face in 2011.

42    Further, the appellant submitted that the factual error was material.

43    It was said that the factual error was relied upon by the Authority in order to reach the interim conclusion that it would place little weight on the taskera as genuine evidence of the appellant’s identity.

44    In this context it was said that the interim conclusion was itself based on two matters:

(a)    first, that the appellant’s evidence was “for the most part, inconsistent with the country information before the delegate”; and

(b)    second, that the Authority found it difficult to accept that the appellant could have obtained a genuine taskera in the manner claimed.

45    According to the appellant, a significant element in the second matter was the long period between the date of issue of the taskera and the evidence, mistakenly apprehended by the Authority, that it was delivered to the appellant in Pakistan by his cousin face to face in 2011.

46    The appellant says, more generally, that the threshold for materiality is not demanding.

47    It is said that the factual error was of sufficient importance to the interim conclusion that without it the Authority could realistically have reached a different view.

48    But as the appellant had to accept, this left open the question of how heavily the interim conclusion weighed in the Authority’s final conclusions. The appellant submitted that the factual error sufficiently infected the interim conclusion, and that as the interim conclusion was material to the final conclusions, materiality of the error to the final conclusions was established.

49    First, it is said that the essence of the Authority’s decision was that the appellant was a Pakistani national. It is said that the Authority placing little weight on the taskera as a genuine document had “an obvious significance for that essence”. It is said that this was buttressed by the fact that the Authority referred to Afghan refugees not availing themselves of schemes to gain documentation where they hold a taskera.

50    Second, it is said that the Authority’s consideration of the harm faced by the appellant in Afghanistan, was rendered hypothetical by the Authority’s conclusion that the appellant was a citizen of Pakistan. It is said that the Authority did not need to squarely confront the claims of harm in Afghanistan because it rejected the premise that the appellant was Afghan. In these circumstances, it is said that the Authority’s consideration of harm in Afghanistan was not sufficient, nor did it give rise to independent findings of fact.

51    It is said that the primary judge erred on the question of materiality. According to the appellant, the primary judge, despite referring to materiality, asked whether the factual error was critical or dispositive. But it is said that this is not the criterion; reference was made to BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151.

Analysis

52    As the focus of the appellant’s attention has been on the Authority’s reasons at [9], particularly the second sentence, it is worth setting this out again:

The applicant has provided what he claims in his original “taskera”, or identity document, from Afghanistan with an English translation. During the SHEV interview the applicant told the delegate that in order to obtain a taskera he gave his photo to his cousin in Afghanistan, who obtained this taskera on his behalf and then his cousin gave it to him when he visited Pakistan in 2011. I have significant concerns about the veracity of this claim and about the document itself. Firstly, the document was issued in 2006, some five years before the applicant’s cousin purportedly gave it to him. Secondly, the applicant told the delegate that he had had little contact with his family in Afghanistan following the land dispute of the early 1990s, and that he fears they would kill him should he return to Afghanistan. I find it implausible that in these circumstances the applicant would contact his cousin (even if this particular cousin was not directly involved in the land dispute as the applicant has claimed) and ask him to obtain a taskera on his behalf.

53    Now counsel for the Minister says that the second sentence of [9] is not a finding made by the Authority of the fact of the 2011 provision by the cousin of the taskera, but rather is a description it gave of certain evidence that the appellant provided to the delegate during the interview. That is strictly correct, but I will address both possibilities.

54    Now I have set out some extracts of the appellant’s interview. But it is worth elaborating.

55    When asked who his taskera was issued to in September 2006, the appellant said it was issued to his cousin. When asked where this cousin lived, the appellant said in “our” village in Afghanistan. The appellant stated that he did not have any contact with his cousin and the last contact with the cousin was in 2011 when the cousin came to Pakistan and the appellant met him.

56    When asked how his cousin had obtained the appellant’s taskera, the appellant stated that:

He know our…has been well known to local officers and they were aware this was from our relatives and our elders have been respected so that’s why it was dangerous for me to go so they have created for me.

57    When asked what documents he had given to the cousin in order to obtain the taskera, the appellant stated that he had only provided photographs. He also stated that he provided his date of birth, and then stated that:

[T]he rest they were aware of everything – everything is in the record – our tribe and our village like our father, grandfather names and everything they know that in the record.

58    The interviewer put to the appellant that the available information indicated that generally speaking a person would have to present himself or herself in person to obtain the taskera, and invited the appellant to comment on this. The appellant stated:

Look you might be right, that is correct, but in my case this is different because we were known and we had a record that I was born there and everything was in the system in the record. But the other thing is even if you can obtain it even if you think you are a big deal you can get it.

59    When asked whether he had contact with any people in Afghanistan, the appellant said that he did not.

60    When asked when the last contact with anyone in Afghanistan was, the appellant stated:

The last time when I spoke with someone was my cousin regarding my taskera in 2012. Or I believe 2011. …

61    Further, the appellant did not give any evidence to the effect that he obtained the taskera from his cousin at some particular time other than in 2011.

62    Further, the delegate in his decision discussed the circumstances in which the appellant received the taskera. He stated that:

I note that the applicant’s taskera was issued in 2006, yet I find it unusual that the applicant’s cousin waited five years before presenting the taskera to the applicant in Pakistan in 2011.

63    Further, notwithstanding that the appellant was invited by the Authority to provide submissions as to why he disagreed with the delegate’s decision, the appellant did not raise any concern or dispute with the delegate’s reference to the appellant having received the taskera from his cousin in 2011 whilst he was in Pakistan. But I accept that not too much can be made of this as the appellant was unrepresented at the time and there was no in person hearing before the Authority.

64    Now the Minister says that the issue for determination is not whether this Court would understand and describe the appellant’s evidence in the same way that the Authority did in the impugned part of [9]. Rather, the question is whether a rational and logical Authority could, on the available material, have understood and then described the appellant’s evidence in the way that the Authority did (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135] per Crennan and Bell JJ).

65    Reference was also made to DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91, where it was said by Beach, O’Callaghan and Anastassiou JJ (at [81] to [88]):

In our view this ground of appeal is not made out and nor has the primary judge been shown to be in error in failing to find jurisdictional error, whichever label of “illogicality”, “irrationality” or “unreasonableness” one uses.

In our view, there is no illogicality or irrationality established in the fact finding approach taken by the Authority and the secondary conclusions drawn therefrom. Let us make some general points.

First, the use of expressions such as “illogicality” or “irrationality” may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J). But that does not in and of itself establish jurisdictional error.

Second and relatedly, the use of such expressions may be little more than a contrivance to shoehorn arguments about the merits of the Authority’s conclusion into the category of jurisdictional error, but that is to descend into impermissible merits review.

Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:

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.

Moreover, at [135] their Honours continued:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

Fourth, the weight that the Authority accorded to each aspect of the evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).

Fifth, some probative material or other logical basis for a fact finding by the Authority was sufficient. The Authority was not obliged to uncritically accept evidence or a submission made by the appellant.

66    I accept and have applied these statements of principle.

67    I also accept, as the Minister has contended, that there is nothing irrational or otherwise unreasonable in the sense described above about the Authority’s understanding and description of the appellant’s evidence recorded at [9] of its reasons.

68    A reasonable and rational decision-maker could have understood and described his evidence in this way, by reference to the matters set out earlier, even though the appellant might not have conveyed that evidence in a single sentence or a single answer.

69    Now it is true that the appellant did not expressly state that his cousin gave the taskera to him when he visited Pakistan in 2011. But that understanding of the effect of the appellant’s evidence was reasonably open to the Authority, particularly in circumstances where the appellant stated that his cousin obtained the taskera, that the last time that he spoken to his cousin was in 2011 when the cousin came to Pakistan and met with the appellant, that the appellant spoke to the cousin in 2011 “regarding my taskera”, the fact that the appellant did not give any evidence suggesting that he received the taskera at some earlier time, and the fact that the appellant did not dispute before the Authority the delegate’s statement that he received the taskera in 2011.

70    Let me now address the other possibility, that is, that the Authority made a finding that the taskera was given to the appellant by his cousin in Pakistan in 2011.

71    Again, such a finding could only be based on the interview evidence. And again, if it was not irrational or unreasonable in the light of the totality of the interview to so conclude that this was the effect of the evidence, then such a finding based thereon was also not irrational or unreasonable.

72    Now I appreciate that the primary judge did not so reason in any of these ways and appears to have accepted that there was a factual error.

73    But on that aspect I would accept the point made in the Minister’s notice of contention which was to the effect that:

The primary judge’s orders should be upheld on the basis that the Authority’s statement at [9] the subject of Ground of Appeal Two was not illogical, irrational, lacking in an intelligible justification or unreasonable and otherwise did not involve any error of fact.

74    One final point before I turn to materiality. The appellant’s counsel sought to finesse something from BHD18 at [29] per Allsop CJ, Collier and Colvin JJ concerning the statement:

A finding of fact involving an error might constitute jurisdictional error if, for example, it is shown to be irrational, or unreasonable, or lacking in an intelligible justification (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 647-648 [130] (Crennan and Bell JJ)).

75    Emphasis was given to the phrase “in the senses contemplated”, and the appellant also referred to Li. I need not linger on this other than to say that Li was about unreasonableness concerning the exercise of a statutory discretionary power. But I am in the territory of dealing with unreasonableness concerning findings of fact. SZMDS is more apposite.

76    But in any event, the appellant has not established materiality.

77    The Authority’s description in [9] of the appellant’s evidence, or “finding” as characterised by the appellant, was an intermediate step along the way to reaching its finding that the appellant was not an Afghan national but was a Pakistani national.

78    Now a finding along the way may in some contexts demonstrate the requisite materiality. But not in the present case.

79    Even if the Authority’s statement that the appellant received the taskera from his cousin in 2011 was irrational or unreasonable, that understanding of his evidence played only a minor role in the Authority’s ultimate conclusion that the appellant was not an Afghan national.

80    Clearly, the Authority held many concerns about the circumstances in which the appellant claimed to have obtained the taskera, of which the five-year delay in receiving it from his cousin was only one aspect.

81    Further, it is apparent that the Authority’s primary concern was that the appellant’s explanation for how he obtained the taskera was, for the most part, inconsistent with country information and that it was difficult to accept that the appellant could have obtained a genuine taskera in the manner claimed.

82    The Authority pointed to country information as to how a taskera would usually be obtained and found it implausible that the appellant could have circumvented these requirements, particularly given his family’s lengthy period of absence from Afghanistan. The Authority also observed that the country information pointed to high rates of taskera fraud, particularly in that part of Pakistan where the appellant had lived. It also considered as implausible that the appellant would have contacted his cousin, given the prior land disputes within his family.

83    None of these findings have been sought to be impugned by the appellant.

84    Further, as the Minister’s counsel correctly pointed out, the Authority’s non-satisfaction that the appellant and his family were Afghan nationals was itself based upon numerous other factors taken together, of which the circumstances in which the appellant obtained the taskera was only a part.

85    In this regard, the Authority found as not credible that the appellant and his family had not obtained refugee documentation in Pakistan to enable access to services and prevent their deportation to Afghanistan.

86    Further, the Authority found it difficult to accept that the appellant was able to attend a government school, and then operate and sell a business in Pakistan, without having any personal identification.

87    The Authority found the appellant’s evidence as to how he left Pakistan on an allegedly fraudulent passport to be of concern.

88    The Authority was also concerned as to the appellant’s failure to provide any evidence showing that his family members were Afghan citizens, such as taskeras for his parents.

89    More generally, the Authority considered that the appellant’s evidence about his life in Pakistan, and his ability to attend school, own a business, and depart the country, was consistent with a person who was a Pakistani national, rather than an Afghan.

90    Clearly, the assessment of materiality is necessarily context specific. I have set out sufficient details of the context to demonstrate that materiality is not established.

91    In my view, any error made by the Authority was not material in the relevant sense to the Authority’s decision (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] and [49] per Bell, Gageler and Keane JJ).

92    Any error made by the Authority could not realistically have resulted in a different decision on the principal conclusions or the ultimate result. There was no such realistic possibility.

93    In the circumstances, in my view the primary judge was correct to find that the error alleged by the appellant was not material to the overall decision.

94    No jurisdictional error by the Authority has been demonstrated. Further, the primary judge was not in error on the lack of materiality. The appeal must be dismissed with costs.

Associate:

Dated:    19 March 2021