Federal Court of Australia

DPC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 490

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant is a 29 year old male citizen of Pakistan who arrived at Christmas Island on 9 June 2012. Subsequently, he applied for a protection visa which was refused by a delegate of the Minister. The refusal was affirmed on review by the Administrative Appeals Tribunal.

2    The appellant appeals orders of a judge of the Federal Circuit and Family Court of Australia (Division 2) by which his application for judicial review of the decision of the Administrative Appeals Tribunal was dismissed. By his amended notice of appeal, the appellant raises one ground of appeal, namely that the Tribunal constructively failed to exercise jurisdiction by its failure to engage with the appellant’s submissions in relation to the ongoing risk of harm into the reasonably foreseeable future. That ground was not the subject of submissions to the primary judge. In circumstances to which I will refer later in these reasons, counsel for the Minister did not oppose the appellant having leave to argue the new ground, and at the outset of the hearing I gave leave to the appellant to do so.

The protection visa application

3    By an application dated 10 December 2012, the appellant applied for a Class XA protection visa. The application was made before the commencement on 16 December 2014 of the transitional provision in item 28 of Part 4 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), and therefore the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) was referrable to the Refugees Convention as amended by the Refugees Protocol and qualified by s 91R of the Act. Further, from 16 December 2014 and by operation of s 45AA of the Migration Act and reg 2.08F of the Migration Regulations 1994 (Cth), the application was taken to be an application for a Temporary Protection (Class XD) visa.

4    The appellant’s protection visa application was accompanied by a statutory declaration that set out the appellant’s claims for protection to which the Tribunal referred in detail and which I summarise as follows –

(a)    the appellant is a Turi of Pashtun ethnicity, and his religion is Shia Muslim;

(b)    in Pakistan, he was educated to Year 12 and had commenced a tertiary course in computer science which he was unable to complete;

(c)    somehow, the Taliban obtained the appellant’s home telephone number and, in December 2011 or January 2012, he received a call from a man claiming to be from the Taliban who said that he was going to kidnap and kill the appellant as he had done to others;

(d)    the appellant received several calls of this type, and each time he recognised the voice of the same man;

(e)    if the appellant’s father answered the telephone, the man would tell his father, “I will kill your son”;

(f)    the appellant was aware of other students who had received similar telephone calls and who were subsequently killed;

(g)    during the months prior to his departure from Pakistan, the appellant “saw many people been killed by the Taliban”, some of whom were “blown u[p]”;

(h)    on 17 February 2012 the appellant was present when a car bomb was detonated in a market, and he narrowly escaped injury;

(i)    the appellant claimed that, if he were to return to Pakistan, he would be unable freely to practise his religion, that he would live in constant fear, that he would have to hide his origins throughout Pakistan, and that he would eventually be killed; and

(j)    the appellant claimed that there was no place in Pakistan where he would be safe, and that he would continue to be targeted by the Taliban because he was a Shiite, which was evident from his origins and his name.

The delegate’s decision

5    On 4 June 2015, a delegate of the Minister refused the application. The delegate was satisfied that that there was a real chance that the appellant would suffer serious harm on account of his religion if he were to return to his home area in Pakistan. However, the delegate was also satisfied that the appellant could safely relocate within Pakistan to an urban centre, and that it was reasonable for the appellant to do so. This had the consequence that the delegate was not satisfied that the appellant had a real chance of being persecuted for a Convention reason.

The review by the Tribunal

6    On 17 June 2015, the appellant lodged an application for merits review of the delegate’s decision with the Refugee Review Tribunal. From 1 July 2015, the proceeding before the Refugee Review Tribunal was taken to be a proceeding in the Migration and Refugee Division of the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth), Schedule 9, item 15AB.

7    A hearing before the Tribunal took place on 20 September 2016. The appellant was represented by a migration agent who prepared written submissions on his behalf and attended the hearing. The written submissions to the Tribunal confirmed that the appellant continued to rely on his claims that were considered by the delegate. In addition, it was submitted to the Tribunal that the appellant faced a real chance of being killed or seriously harmed or mistreated by the Taliban, other Sunni militant groups, Sunni Muslims more generally, other Pashtuns or members of other ethnic groups for reason of his member of the Turi tribe, his Pashtu ethnicity, his Shia Muslim religion or an imputed political opinion if he was to relocate to an urban centre or elsewhere in Pakistan then, or in the reasonably foreseeable future. It was also submitted to the Tribunal that considering the appellant’s circumstances as a student, a member of the Turi tribe, and a Shia Muslim, there was a real chance that he would be persecuted if he returned to Pakistan then or in the reasonably foreseeable future. It was argued that systematic human rights abuses would continue to be directed at Shia Muslims for the reasonably foreseeable future, and that the likelihood that the appellant might be the victim of such serious abuses could not be ruled out as remote or insubstantial. The submissions to the Tribunal referred to and extracted quotations from the following documents in the way of country information in support of the submissions that were made –

(a)    a report of the UK Home Office titled Country Information and Guidance Pakistan: Fear of the Taliban and other militant groups, dated 16 July 2014;

(b)    a report of the UK Home Office titled Country Information and Guidance Pakistan: Security and humanitarian situation, and dated November 2015;

(c)    UNHCR Eligibility Guidelines, dated May 2012;

(d)    the 2016 Annual Report of the United States Commission on International Religious Freedom;

(e)    a Human Rights Watch report titled “We are the Walking Dead” Killings of Shia Hazaras in Balochistan, Pakistan, dated June 2014;

(f)    a report published in January 2014 by the Immigration and Refugee Board of Canada titled How Shia Muslims differ from Sunnis; treatment of Shias, particularly in Lahore and Multan; government response to violence against Shia Muslim; and

(g)    a report of the UK Home Office published in February 2015.

8    In the course of the hearing, the appellant stated that the Taliban had distributed pamphlets in which threats were made to target and harm children, and referred to a “threat letter”.

9    At the hearing, the Tribunal questioned the appellant about his claims and put to the appellant for comment country information about the situation in Pakistan. The country information to which the Tribunal referred at the hearing included a DFAT thematic report dated 15 January 2016 on Shias in Pakistan, a copy of which the Tribunal sent to the appellant’s representative after the hearing.

The Tribunal’s decision

10    On 11 November 2016, the Tribunal affirmed the decision of the delegate to refuse the appellant’s application for a protection visa. The Tribunal’s reasons for doing so differed from those of the delegate in that the Tribunal was not satisfied that the appellant would face a real chance of serious harm in his former home area. It was therefore not necessary for the Tribunal to consider whether it was reasonable for the appellant to relocate to another place within Pakistan. The Tribunal made corresponding findings in relation to the appellant’s claim for complementary protection.

11    The Tribunal addressed the appellant’s claims in four sections. First, under the heading Past threats, the Tribunal addressed the appellant’s claims to have received threatening telephone calls from the Taliban. The Tribunal found the appellant’s evidence to be vague and generalised. It noted that his evidence was inconsistent regarding when the telephone calls commenced, and noted that the appellant did not mention the telephone calls in his original entry interview. The Tribunal did not accept that the appellant or his family received threatening telephone calls at any time from the Taliban. The Tribunal accepted that the Taliban may have publicly distributed propaganda pamphlets, and that the appellant may have seen such a pamphlet. However, based on the limited information available, the Tribunal did not accept that the appellant or his father had personally received a warning letter. The Tribunal accepted that the general situation in the appellant’s home location in Pakistan in 2012 led him to leave the country.

12    Second, under the heading Future risk of harm as a Turi Shia and imputed anti-Taliban political opinion, the Tribunal addressed the appellant’s claims as a Turi Shia and his claimed imputed anti-Taliban political opinion. The Tribunal referred to what it described as “more recent country information from credible sources” as indicating that the situation in the appellant’s home location in Pakistan, and indeed in Pakistan in general, had improved in recent years. The Tribunal referred to a number of sources of country information including information in the DFAT thematic report dated 15 January 2016 on Shias in Pakistan to which I referred earlier. The Tribunal stated that it put this information to the appellant during the course of the hearing and provided a copy of the report to the appellant’s representative after the hearing. The Tribunal relied on information in this report relating to military operations against terrorist, militant, and sectarian groups as having substantially reduced the level of generalised and sectarian violence throughout the country since the commencement of a counter-terrorism military operation in June 2014, and stated that the weight of country information indicated a significant improvement in the situation at the appellant’s home location since that time. The Tribunal stated that this improvement was part of a wider trend of significant improvement in sectarian and general violence throughout Pakistan over the previous couple of years, and that this trend appeared to be ongoing.

13    The Tribunal referred to the reliance by the appellant’s representative on the UNHCR 2012 Guidelines. The Tribunal stated that these Guidelines were published in 2012 prior to the country information discussed with the appellant at the hearing which indicated a change in the security situation since mid-2014. At [36] of its statement of reasons, the Tribunal stated that more recent country information from a variety of credible sources indicated that the situation in the appellant’s home area, and indeed throughout Pakistan in general, had improved in recent years.

14    At [47] of its reasons, the Tribunal referred to the weight of country information, stating –

… the tribunal is of the view that the weight of the country information indicates a significant improvement in the situation in [the appellant’s home area] since the start of Pakistan’s counter-militant operations in June 2014. The evidence before the tribunal is that this improvement is part of a wider trend of a significant improvement in sectarian and general violence throughout Pakistan over the past couple of years. The evidence before the tribunal indicates that the situation has not changed in any significant way and that this trend appears to be ongoing.

15    The Tribunal referred in general terms to the country information relied on by the appellant, stating at [49] that –

… much of the country information referred to in the [appellant’s] written submissions either pre-dates country information referred to above or refers to the Shia community generally in Pakistan. The tribunal acknowledges that there have been and continue to be general threats and attacks against Shia Muslims in Pakistan, estimated to be approximately 20% of the Pakistani population and spread throughout Pakistan. However, it gives greater weight to the detailed information regarding the situation in [the appellant’s home area] in particular and is not persuaded that general information regarding Shias in Pakistan, given their spread throughout the country and diversity of their experiences, outweighs that information.

16    The Tribunal stated that the country information led it to conclude that the appellant did not face a real chance of serious harm from the Taliban, extremist Sunnis or other militants due to his Turi ethnicity, Shia Muslim faith, or imputed anti-Taliban opinion arising out of that profile if he returned to his home location. The Tribunal also relied on the country information to which it referred to reject allied aspects of the appellant’s claims, and to reject the idea that the appellant would face a real risk of significant harm as a result of generalised violence in the appellant’s home area.

17    Third, under the heading Future risk of harm as a (Shia) student and/or educated Shia, the Tribunal addressed the appellant’s claim that he would face an increased risk of harm due to his membership of the particular social group of students, as a Shia student or as an educated Shia Muslim. The Tribunal stated that it did not accept that the appellant or his family had ever received threats due to the appellant being a student, nor had it found that the appellant’s family experienced any ongoing problems, including in relation to the appellant’s former status as a student. The Tribunal noted a reference in the appellant’s submissions to the July 2014 UK Home Office report as indicating that ordinary Pakistanis, including students, had been subjected to violence by militant groups including the Taliban, and that the risk of being targeted by such groups was highest in areas including the appellant’s home area, which had a strong Taliban presence. The Tribunal noted that the July 2014 UK Home Office report was dated prior to much of the country information that the Tribunal discussed with the appellant. Having regard to the country information to which the Tribunal had earlier referred, the lack of threats towards the appellant or anyone in his family, and the fact that the appellant had not studied since 2011, the Tribunal found that the appellant faced no more than a remote chance of serious harm as a student, a Shia student, or as an educated Shia.

18    The fourth section concerned claims arising out of the appellant’s residency in Australia. The Tribunal found it far-fetched and speculative that the Taliban would come to know about the appellant’s presence in Australia or his asylum request. The Tribunal also found that the appellant had left Pakistan legally on his own passport, and that while the appellant may be questioned by authorities on his return to Pakistan, country information did not suggest that individuals were harmed during such questioning. The Tribunal found that such questioning did not amount to either serious or significant harm.

19    As I have referred to, in the course of its reasons the Tribunal referred in general terms to the country information that was relied on by the appellant in the written submissions of his representative. The Tribunal also cited specifically the following reports that had been referred to in the appellant’s submissions to the Tribunal –

(a)    the report of the UK Home Office dated 16 July 2014;

(b)    the report of the UK Home Office dated November 2015; and

(c)    the UNHCR Eligibility Guidelines, dated May 2012.

The application to the Federal Circuit Court

20    On 24 November 2016, the appellant filed an application in the Federal Circuit Court of Australia seeking judicial review of the decision of the Tribunal. It is unnecessary to examine the grounds of review, because they were high-level and generic, and do not relate to the appellant’s ground of appeal to this Court.

21    The application came on for hearing on 9 December 2021. The delay of five years is unexplained. A legal practitioner, who is no longer acting for the appellant, appeared and sought an adjournment, submitting that he required further documentation in order to prepare an amended application. The application for an adjournment was refused. The primary judge then heard the application before giving ex tempore reasons and dismissing the proceeding.

The appeal to this Court

22    The appellant sought leave to advance the following ground of appeal that raised issues that were not argued below –

The Tribunal constructively failed to exercise jurisdiction by its failure to engage with the Appellant’s submissions in relation to the ongoing risk of harm in the present and into the reasonably foreseeable future.

Particulars

By his legal representatives, the Appellant in his submissions dated 13 September 2016 clearly articulated submissions about a real chance of serious harm to him at that time or in the “reasonably foreseeable future”.

The Appellant substantiated this submission with country information about ongoing security concerns in Pakistan generally and [the appellant’s home area] specifically.

The Tribunal failed to consider the Appellant’s submissions and contemporaneous country information in concluding that he did not face a real chance of serious harm now or in the reasonably foreseeable future.

In the premises, the Tribunal erred in the terms of Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar) at [37].

23    The appellant’s application for leave to advance this ground was supported by an affidavit of the appellant in which he deposed to the circumstances of his retainer in October 2021 of the legal practitioner who appeared for him below. The appellant deposed that the legal practitioner never spoke to him about what arguments he was going to advance, and did not file written submissions. On the basis of this unchallenged evidence, the Minister did not oppose the application for leave to raise the new ground, and at the outset of the hearing I gave leave to the appellant to do so.

The appellant’s submissions

24    Counsel for the appellant submitted that, by his written submissions to the Tribunal dated 13 September 2016, the appellant clearly articulated submissions about a real chance of serious harm to him then, or in the reasonably foreseeable future. Counsel referred to passages in the written submissions to the Tribunal where it was submitted on the appellant’s behalf that he faced a real chance of being killed or seriously harmed or mistreated by the Taliban, other Sunni militant groups, Sunni Muslims more generally, other Pashtuns or members of other ethnic groups for reason of his member of the Turi tribe, his Pashtu ethnicity, his Shia Muslim religion, or an imputed political opinion if he was to relocate to an urban centre or elsewhere in Pakistan now or in the reasonably foreseeable future. In oral submissions, counsel for the appellant emphasised that the appellant’s claim before the Tribunal, based upon country information, was that from 2012 to 2016 and then into the reasonably foreseeable future the appellant faced a real chance of persecution in every part of Pakistan, including but not limited to his home area. The first limb was referred to by counsel as the temporal element, and the second limb was referred to as the location element.

25    Counsel submitted that the appellant substantiated his claims before the Tribunal by referring to extracts of country information. I have identified the extracts at [7] above. It was submitted that the Tribunal considered so little of the country information relied upon by the appellant that it could be said that the “purported exercise of the power [is] not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole”, citing Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 (Omar) at [36(d)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). Counsel for the appellant accepted that the Tribunal did address each of the appellant’s broad claims as necessary, specifically in relation to the appellant’s submissions regarding the risk of harm to students and security for Shia Muslims. It was submitted, however, that the Tribunal made only brief references to three of the country information reports upon which the appellant relied in the written submissions to the Tribunal. I have identified those reports at [19] above. It was submitted that the Tribunal made no reference to the 2016 United States Commission report, the June 2014 Human Rights Watch report, the November 2015 UK Home Office report, the January 2014 Canada report, or the February 2015 UK Home Office report.

26    Counsel for the appellant submitted that all of the country information on which the appellant relied was dated between January 2014 and 2016 save for the 2012 UNCHR report, and that all of the country information on which the Tribunal placed weight was dated between 2014 and 2016. Counsel submitted that no source of information in those reports was older than 2012. It was accepted, however, that some of the sources referred to the situation in Pakistan generally. It was submitted that the Tribunal’s observation that the country information to which the Tribunal referred was more recent was fundamentally flawed, and was not a bar to engaging in an “active intellectual process”, citing Omar at [37]. It was submitted that because the Tribunal had accepted a long and fluctuating history of violent conflict in the appellant’s home area since the 1970s, the Tribunal failed to complete its jurisdictional exercise when it relied on what was submitted to be a partial view of evidence of that violence gathered between 2014 and 2016 without meaningful discussion of the credible alternative sources put forward on behalf of the appellant. It was submitted that the long history of violence elevated the importance of considering all country information impartially so as to form the clearest picture of the ongoing situation, and that by failing to do so the Tribunal failed “to take into account all the representations”, citing Navoto v Minister for Home Affairs [2019] FCA 295 at [47] (Allsop CJ), which was affirmed on appeal: [2019] FCAFC 135.

27    Counsel submitted that while the Tribunal could take its own country information into account, and was required to take the most recent DFAT report into account, the Tribunal was not relieved of its additional responsibility to complete its review by considering all the evidence put forward by the appellant in support of his claims, whether that evidence be personal information or country information. Counsel submitted that the Tribunal had relied on its country information to the exclusion of the country information that the appellant had put forward, thereby failing to engage in the “active intellectual process” required in considering the appellant’s evidence to support his submission. It was submitted that the Tribunal did not engage with the appellant’s country information by dismissing it as outdated and by mentioning only three of the reports relied on by the appellant.

Consideration

28    In order to evaluate the appellant’s submissions on appeal I will consider three inter-related aspects of the Tribunal’s functions: (1) its task on review; (2) its obligation to give reasons; and (3) the extent to which the Tribunal was required to address evidence. The latter two issues arise because the onus of sustaining an inference that the Tribunal did not take account of the country information relied on by the appellant such as to amount to a jurisdictional error, falls on the appellant: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67] (Gummow J). In determining whether the onus to establish the inference has been discharged, the Court has regard to two settled principles. One is that a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ)

The Tribunal’s tasks on review

29    The Tribunal’s tasks on review under Part 7 of the Migration Act include the assessment of substantial clearly articulated arguments and cogent evidence providing substantial support for claims for a protection visa. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13], Bell, Gageler and Keane JJ described the obligations in the following terms –

Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review “in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself” (55). That obligation is fundamental to the nature of the review for which Pt 7 provides. Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant’s case (56), including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case (57).

[Footnotes omitted].

30    The citations in the footnotes to the above passage include Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[112] (Robertson J) which was cited at footnote (56), and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ, Hayne J at [95] agreeing) which was cited in footnote (57).

31    The issue in the present appeal is whether it is to be inferred that, in the performance of its review obligation, the Tribunal did not take account of the evidence on which the appellant relied in the form of the country information identified in the appellant’s written submissions to the Tribunal. As I recounted at [26] above, before this Court it was submitted that the Tribunal was required to engage with the evidence in an “active intellectual process”, citing the decision of the Full Court in Omar, which was a case concerning representations made to the Minister under s 501CA(4) of the Migration Act. Any reference to “active intellectual process” in this context must take account of Plaintiff M1 of 2021 [2022] HCA 17; 400 ALR 417 at [26], where Kiefel CJ, Keane, Gordon and Steward JJ stated –

Labels like “active intellectual process”(49) and “proper, genuine and realistic consideration” (50) must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. (51) That is not the correct approach. As Mason J stated in Peko-Wallsend, (52) “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Footnoted references omitted.)

32    Their Honours continued at [27] –

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials (53) or a substantial and clearly articulated argument; (54) misunderstood the applicable law; (55) or misunderstood the case being made by the former visa holder, (56) that may give rise to jurisdictional error.

33    At footnotes (53) and (54), their Honours cited, amongst other authorities, SZMTA at [13] and Dranichnikov at [24]-[25] and [95].

34    In this case, the appellant’s claims before the Tribunal were those that I summarised at [4] above, which were supplemented by the further articulation of his claims in the submissions to the Tribunal to which I referred at [7] above. The appellant’s claims sought support from the evidence on which the appellant relied which included the country information to which I referred earlier. The question whether the Tribunal failed to take account of this evidence such that it failed to perform its duty of review directs attention to the Tribunal’s statement of reasons, and the significance of them.

The Tribunal’s obligation to give reasons

35    It is relevant to recognise that the Tribunal’s function in a review under Part 7 of the Migration Act is administrative, and not judicial. The Tribunal therefore has no common law obligation to give reasons: its obligation to give a written statement of reasons is statutory, and the required standard of reasons is that which arises expressly or by implication from the statute. The express obligations in s 430 of the Migration Act relevantly include that the statement set out the reasons for the decision, set out findings on any material questions of fact, and refer to the evidence or other material on which the findings of fact were based. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf), McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) stated at [67] in relation to s 430 of the Act –

As was rightly observed in the joint judgment in [Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 480 [44]], this section calls for a recording of matters that are matters of fact. In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

36    At [68], their Honours answered the question that they had posed above as follows –

Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‐maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

(Emphasis in original.)

37    By this passage, their Honours rejected the idea that s 430 of the Act required the Tribunal to make findings about facts that were objectively material, and held that the Tribunal was required only to make findings as to facts that the Tribunal considered were material. Their Honours stated further, at [69] –

The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material … It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

[footnotes omitted]

The extent to which the Tribunal’s statement of reasons was required to address evidence

38    It follows from Yusuf that is not necessary for the Tribunal to refer in its statement of reasons to every piece of evidence and every contention made by an applicant for review. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE), French, Sackville and Hely JJ stated at [46] –

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87] –[97] ) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

39    Thus, the Tribunal is not required “to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [65] (McHugh J).

Analysis

40    I have given careful consideration to the reasons of the Authority as a whole, having regard to the nature of the Tribunal’s obligation to review, the statutory standard of reasons, and the guidance in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

41    As I have mentioned, counsel for the appellant took issue with whether the country information on which the Tribunal placed weight was more up-to-date than the information on which the appellant relied. That submission invites attention to the content of, and sources of information on which the appellant relied before the Tribunal. They were questions for the Tribunal to consider and weigh, and the issues raised are generally not matters for the Court unless, for instance, it could be shown that the Tribunal’s evaluation was affected by legal unreasonableness in the sense explained in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [125]–[131] (Crennan and Bell JJ). It has not been shown that it was not open to the Tribunal to form the view recorded at [47] of its reasons that the weight of country information favoured the view that it took, namely that there had been a significant improvement in the situation since June 2014, and that this was part of a trend that appeared to be ongoing. It is clear from the Tribunal’s statement of reasons that it gave consideration to the likelihood of harm to the appellant in the foreseeable future, because the relevant findings were made in that section of the Tribunal’s statement of reasons which referred to “future risk of harm” in the heading (see [12] above), and referred to a trend that appeared to be ongoing.

42    Further, the appellant has not persuaded me to infer that the Tribunal did not consider the country information on which the appellant relied. At [25] of its statement of reasons, the Tribunal referred explicitly to the submissions provided to the Tribunal by the appellant’s representative as providing country information that was related to the appellant’s fear of harm. The Tribunal referred expressly to some but not all of the documents relied on by the appellant. It is reasonably clear from the Tribunal’s reasons read as a whole that it preferred what it considered to be more recent information. The Tribunal’s preference for more recent information was consistent with guidance in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 1 at [73] (Kenny, Griffiths and Mortimer JJ), namely that the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well-founded requires attention to the most up-to-date information. However, it does not follow from the Tribunal’s preference for the country information that it identified that it did not take account of the information on which the appellant relied. In my view, it is reasonably clear that the Tribunal did have regard to the appellant’s country information, but placed more weight on the other information that it identified. To determine what weight to give to different information was part of the Tribunal’s core function, and the preference for some information over other information is not in this instance indicative of jurisdictional error.

Conclusion

43    The appeal will be dismissed.

Associate:

Dated:    19 May 2023