Federal Court of Australia

BCC21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1072

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    Leave to rely upon the first ground of appeal set out in the Notice of Appeal filed on 9 November 2021 is refused.

3.    The appellant have leave to rely upon the second and third grounds of appeal set out in the Notice of Appeal.

4.    The appeal be allowed.

5.    The orders of the Federal Circuit and Family Court of Australia (Division 2) made on 21 October 2021 be set aside and in lieu thereof, it be ordered that:

(1)    the decision of the Administrative Appeals Tribunal dated 31 March 2021 be set aside;

(2)    the matter be remitted to the Tribunal to be determined according to law; and

(3)    the first respondent pay the applicant’s costs.

6.    The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    Introduction

1    The appellant is a citizen of Pakistan who arrived in Australia on 17 June 2012 as the holder of a student visa. That visa was cancelled on 28 November 2014. On 8 August 2016, the appellant lodged an application for a protection visa.

2    On 20 April 2017, a delegate of the first respondent (Minister) made a decision to refuse to grant the appellant a visa. On 7 May 2017, the appellant lodged an application for review of that decision with the second respondent (Tribunal). On 31 March 2021, following a hearing on 25 March 2021, the Tribunal affirmed the decision under review: 1709834 (Refugee) [2021] AATA 1003 (Reasons, or R).

3    The appellant lodged an application for judicial review with the (then) Federal Circuit Court of Australia. On 21 October 2021, the primary judge dismissed that application: BCC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 173 (J).

4    The appellant appeals from the decision of the primary judge.

B.    The appellant’s claims for protection

5    The appellant claimed that he would be at risk of being killed by the Tehrik-i-Taliban if returned to Pakistan, based upon his claims that: (1) he had refused or resisted recruitment by the Taliban; and (2) his cousin had been murdered by persons who mistook the appellant’s cousin for the appellant.

6    As part of his application for a protection visa, and in support of his claim that his cousin had been killed because he was mistaken for the appellant, the appellant provided a document titled “First Information Report” (police report). The police report purports to be a report prepared by Pakistani police which contains information provided by the appellant’s father to police concerning the murder of the appellant’s cousin. It includes:

Report of [appellant’s] father ... on 28/07/2016 at 22:00 hours reached the Police Station along with dead body ... reported that:

... it was a marriage ceremony of my nephew … at Islamabad and that night his Valima was scheduled at Islamabad, we all family members planned to attend the Valima of my above named nephew and made a program that at night time i.e. 08:09PM we will leave the home for Islamabad and will reach the marriage hall at Islamabad at 10:00PM, according to program we all family members left for Islamabad at about 08:00PM, when we reached near Takia Sharif Ziarat (Shrine) we saw some 5 to 6 unknown persons armed with deadly weapons standing on our way, when they saw my Car they opened fire burst with their Kalashnikove, considering him [the appellant] while [the appellant’s cousin] who was driving my Car got bullet fire on his chest and succumbed to injuries and died at spot whereas after the incident the perpetrators fled away from place of occurrence. The reason behind this attack was that these people wanted to kill [the appellant]. They are continuously threatening through phone calls to me that [the appellant] who is studying/residing abroad now a days, to compromise and also co-operate us in raising fund as he did before. If you did not comply with our order [the appellant] will not be able to return Pakistan but not even to life, mind it. Today they got information that [the appellant] is also going to attend the marriage ceremony of my nephew … at Islamabad therefore they attacked on us with intention to kill [the appellant] and with their firing [the appellant’s cousin] has been killed, this incident was witnessed by numerous people who were present at spot. [The appellant’s cousin] was driving my Car which was packed with the marriage gifts alone. I complaint against 5/6 unknown persons for committing murder of [the appellant’s cousin]. Report has been read over to me, which is correct.

7    The police report bears two dates/times. The first is “28/07/2016 time 8:00PM (Night Time)” (which may be the time at which the incident occurred) and the second is “28/07/2016 time 22:00” (which appears to be the time at which the appellant’s father arrived at the police station).

C.    The delegate’s decision

8    As noted above, the Minister, via a delegate, refused the appellant’s application for a protection visa. Relevantly for present purposes, the delegate’s decision record includes:

(1)    under the heading “Protection claims”:

On 28 July 2016 his cousin married in Islamabad. He did not attend the wedding. On that day his other cousin was driving the [appellant’s] father’s car from Haripur to Islamabad. His father was travelling in a van with other family members. Six armed men attacked his father’s car and his cousin, who was driving the car, was killed. His father reported the incident to the police but to date they have not found the perpetrators. After this, the men contacted his father once or twice but his father did not give them any information about the [appellant].

and

Documents Provided at Interview

The [appellant] submitted a report in Urdu which he claimed was filed at the local police station at Kotnajibulla by his father on 28 July 2016. An English translation was also submitted. …

(2)    under the heading “Findings of fact”, the delegate recorded:

The [appellant] also cited an incident on 28 July 2016 at a cousin's wedding in Islamabad when six armed men attacked his father's car and his cousin, who was driving the car, was killed. He claimed the Taliban made a mistake once (when his cousin was killed), but that they will not make the same mistake next time as he claimed he was the intended target.

...

The [appellant] claimed that his father advised him to stay in Australia following the incident on 28 July 2016 during which his cousin was killed by armed men while driving the [appellant’s] father’s car at a cousin’s wedding in Islamabad. The attackers have not been found. The [appellant] claimed he was the intended target of the attack rather than his cousin. When asked why he believed that he was the intended target, he stated that they were still after him as they wanted him to continue providing donations and work for them.

As evidence of the incident, the [appellant] submitted a report in Urdu which he claimed was filed at the local police station by his father on 28 July 2016 together with a copy of the post mortem report of his cousin issued by the hospital.

According to DFAT Country Information Report, Pakistan, 15 January 2016:

5.46 Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. For example, it is relatively simple to fraudulently produce police-issued FIRs using existing FIR book numbers. FIRs are hand-written standard forms. There is credible evidence of police in Pakistan accepting bribes to verify fraudulent FIRs. The existence of an FIR does not therefore constitute evidence that the described events actually occurred.

5.47 More broadly, DFAT is aware of numerous cases of false school and academic records, birth certificates, death certificates, medical records, bank records and documents issued in a legitimate format without proper verification by Pakistani authorities

Given the high level of document fraud in Pakistan, I place little evidentiary weight on the police report and post-mortem report submitted by the [appellant].

While I give little weight to the documents submitted, I accept that violence in Pakistan is endemic and that the security situation is volatile. I therefore accept that an attack may have occurred at the [appellant’s] cousin’s wedding during which his cousin was killed. However I do not accept that the [appellant] was the intended target of this violent act, which I consider to be a random, indiscriminate act of violence.

This is supported by independent country information documenting the security situation in Pakistan.

(underlining in original)

D.    The Tribunal’s decision

9    The Tribunal identified that the criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) and that the appellant was required to meet one of the criteria in s 36(2) of the Act (R[3]). The Tribunal also identified the definitions of “refugee”, “well founded fear of prosecution” and “significant harm” (R[4] to [7]). The Tribunal noted at R[8] that in accordance with Ministerial Direction No 84, made under s 499 of the Act, it had taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they were relevant.

10    The Tribunal then set out under the heading “Background & Summary of Claims” some background concerning the appellant and his claims for protection. At R[12], the Tribunal recorded:

The [appellant] applied for protection on 8 August 2016. He claimed that he was at risk of being killed by the Taliban if he returned to Pakistan because he had refused or resisted an attempt to recruit him. He claimed that his cousin was killed in July 2016 because his killers believed he was the [appellant].

11    The Tribunal then set out, under the heading “Claims and Evidence”, more detail concerning the appellant’s claims and evidence. The Tribunal noted the following claims by the appellant:

(1)    the appellant feared returning to Pakistan because he believed he would be harmed by the Taliban (R[13]);

(2)    in about 2010 while he was studying in Islamabad, he befriended some men at a local mosque who told him that they were involved in humanitarian work and were collecting donations for refugees from Afghanistan who were living in Pakistan near the Afghan border. Although those men did not belong to any registered charitable organisations and did not provide any receipts for the donations, the appellant trusted them because they were well-thought of members of his mosque (R[14]);

(3)    about six months after meeting the men he began to give them donations. His father did not know these men because he was still living in Haripur, but he also gave them about $2,000 to $3,000 a year (R[14]);

(4)    about six months after the appellant began to make donations he asked the men to take him to see one of the refugee camps and in late 2011 or early 2012 they drove him to a location somewhere past Peshawar in an area outside the control of the Pakistani authorities. About 40 minutes before the end of the journey the appellant was blindfolded. When the journey ended, there was no refugee camp and instead the men took him to a big house where he was introduced to an important man in a room with many armed men. The men thanked him for the help he had provided. They told him that they were helping the Afghani people to stop drone attacks and fight the Americans and asked if he would join them as a fighter. The appellant was surprised because the men from the mosque had only spoken about humanity. Nevertheless, the appellant agreed to work with them, but said he could not start immediately and he would return later (R[15]);

(5)    the appellant was then taken home. He was blindfolded for the early part of the journey. The appellant told his father what had happened and his father said that he should leave the country. At that time, the appellant was in the process of doing his IELTS English test and applying to go to another country, but he changed his mind and obtained a student visa for Australia instead. He had limited contact with the men from the mosque after returning from the border. He told them he was busy with his studies and helping his father in his business (R[16]);

(6)    the men who tried to recruit the appellant did not tell him which part of the Taliban they belonged to as they only gave information of that kind to people after they joined. The appellant had spoken with them about humanitarian matters, but they had not spoken about opposing the Pakistani government. The appellant told them he was a humanitarian (R[17]);

(7)    although the appellant’s student visa had been cancelled in November 2014 – after which he sought review at the Tribunal, lodged an appeal with the Federal Court and sought ministerial intervention – the appellant did not apply for a protection visa until 2016 because he had been advised by a lawyer that he had only a 50 per cent chance of obtaining protection in Australia, but he had a good chance of obtaining residency after completing his studies, so he decided to take the latter option (R[18]); and

(8)    the appellant applied for a protection visa in 2016 because he felt he had no other choice because the Minister did not intervene in his case; and because his cousin had been killed by the Taliban in July 2016. His cousin was driving his father’s car to a wedding when men in another car shot him and drove off. The assailants were not caught or identified but the appellant believed that they were from the Taliban and he was the intended victim. He said that his father had lodged a report with police about his cousin’s death. He said that the Taliban had believed that he had returned to Pakistan to attend a cousin’s wedding because he had told many people that was his intention. In the end, he did not return because the problems with his visa would not allow him to do so (R[19]).

12    The Tribunal then recorded (at R[20] to [24]) that it had advised the appellant of the difficulties it had in accepting his claims. More particularly:

(1)    the Tribunal advised the appellant that it was unaware of any evidence which suggested that the Taliban would attempt to recruit a young man who had never expressed any sympathy with their ideals by transporting him a long distance to their headquarters and inviting him to join the group. The appellant maintained that his claims were true;

(2)    the Tribunal advised the appellant that even if it accepted that he had been asked to join the Taliban, the Tribunal would have great difficulty understanding why the Taliban would want to kill him. The appellant said that the Taliban feared he would talk to the police and the government about what they were doing. The Tribunal advised the appellant that it was the Tribunal’s understanding that the Pakistani authorities had a great deal of information about the whereabouts and activities of the Taliban while the appellant appeared to know (sic: not to know) anything of significance about their activities. The appellant said that the Taliban did not trust him because of his failure to return as agreed;

(3)    the Tribunal observed that the appellant’s claim that his cousin had been killed by the Taliban four years after he left Pakistan because they believed he was the person driving his father’s car was “speculation at best”. The Tribunal also advised the appellant that it had great difficulty accepting that the Taliban would have any interest in pursuing and harming him four years after he had left Pakistan. The appellant said that from the time he left Pakistan his friends and neighbours had received telephone calls from people who asked when he was going to return. The callers did not identify themselves or make any threats, but he believed the callers were from the Taliban; and

(4)    the Tribunal noted that the Pakistani government had mounted a number of campaigns against groups such as the Taliban with some success and that even if the Tribunal accepted that the appellant had experienced some problems with them in the past, the Tribunal doubted that the Taliban would expend any resources locating or seeking to harm the appellant four years after he left Pakistan. The appellant maintained that his claims were true and that he would be killed if he returned to Pakistan.

13    The Tribunal then set out its findings of fact. It found (at R[25]) that the appellant was not a truthful or credible witness. It did so for four reasons.

14    The first reason was that the Tribunal was unaware of any evidence which suggested that the Taliban was involved in recruiting middle class students with no previous involvement in extremist or militant Islamic groups. The Tribunal referred to some country information available to it and stated that according to the available evidence: the Taliban was an umbrella organisation and recruitment was generally a local activity with factors such as clan and tribal groups an important factor; the Taliban commonly recruited individuals with a low socio-economic background, internally displaced people living in refugee camps or those who shared their views and beliefs (for example, students from radical Islamic schools) (R[26]).

15    The Tribunal also referred to reports of young boys being kidnapped from villages and radicalised in Taliban schools and the use of social media to attract recruits (R[26]).

16    The Tribunal found that in those circumstances the claim that members or supporters of the Taliban attempted to recruit the appellant by driving him to a remote area on the pretext of taking him to a refugee camp far-fetched and implausible and the Tribunal did not accept it (R[27]).

17    The second reason was that assuming, contrary to its earlier finding, that the Taliban had attempted to recruit the appellant in the manner claimed, the Tribunal could think of no plausible reason why the Taliban would have wished to kill the appellant because he did not return and become a fighter as he claims to have agreed to do, in circumstances where the appellant was blindfolded when he travelled to their camp (sic) and there was nothing in his evidence which suggested that he was given or became aware of information which could have placed the group at risk if it became known to the security forces or anyone else (R[28]).

18    The Tribunal found the claim that the Taliban would wish to harm the appellant to prevent him from providing information to the Pakistani authorities to be mere speculation and implausible. The Tribunal also noted that the Taliban and other extremist groups were under significant pressure from government military operations during the period in question and did not accept that they would have expended energy or resources over a number of years monitoring the appellant or attempting to eliminate him merely because he did not join the group when asked to do so (R[28]).

19    Thus the Tribunal did not accept that the appellant was of adverse interest to the Taliban at the time of his departure from Pakistan or that his cousin was shot and killed in 2016 because his attackers mistook him for the appellant (R[29]).

20    The third reason was the presence of inconsistencies in evidence provided by the appellant. The Tribunal cited two examples:

(1)    in August 2016 the appellant said that he could not tell his father about his problems after the Taliban attempted to recruit him, so he decided to leave the country; but during the hearing before the Tribunal in March 2021 the appellant said that he told his father what had happened and his father told him to leave the country; and

(2)    in the written statement provided by the appellant with his application in August 2016 he said that the Taliban threatened to kill him after he refused to join them; but at the hearing before the Tribunal he said that he feared the Taliban but did not claim they had threatened him at any time (R[30]).

21    The Tribunal found these inconsistencies to be a further indication that the appellant had not provided an honest or accurate account of his reasons for leaving Pakistan in 2012 and his decision to seek protection in Australia (R[31]).

22    The fourth reason was that the Tribunal found the appellant’s failure to seek protection until some four years after he arrived in Australia to be a strong indication that he did not fear serious harm from the Taliban or anyone else when he arrived in Australia. The Tribunal noted that the appellant claimed that he did not apply for protection on arrival in Australia because a lawyer advised him that he was more likely to obtain residency by using his qualifications. The Tribunal found that whilst this may explain his initial delay, it did not explain his failure to seek protection when his student visa was cancelled (R[32]).

23    The Tribunal then stated at R[33]:

After considering all of the evidence I do not accept that the TTP attempted to recruit the [appellant] prior to his departure from Pakistan. Nor do I accept that he has ever been of adverse interest to the TTP at the time of his departure or at any time. And while it may be that his cousin was the victim of a drive-by shooting in 2016, I do not accept that he was killed because he was mistaken for the [appellant] or for any reason related to the [appellant]. I find that the [appellant] concocted these claims in order to obtain a protection visa.

24    The Tribunal then continued, under the heading “Consideration of Claims and Evidence”:

34.    There is no credible evidence before me which suggests that the [appellant] was threatened or of adverse interest to the TTP or anyone else for any reason prior to his departure from Pakistan. Nor has any evidence been provided which suggests that he faces a real chance of suffering serious or significant harm at the hands of the TTP or any other group or individual if he returns to Pakistan now or in the reasonably foreseeable future.

35.    While the [appellant] stated clearly at the hearing that he did not fear harm in Pakistan for any reason apart from his claimed problems with the TTP, he observed in his submissions to the Department that there was no safety in Pakistan. I have therefore considered whether he faces a real chance of serious or significant harm as a result of the general situation in Pakistan. It is certainly true that Pakistan has a history of sectarian, ethnic and political violence and these problems are likely to continue in the future. However, the evidence does not suggest that these problems are such that all Pakistanis or all residents of KP province are at risk of serious or significant harm. No evidence has been provided which suggests that the [appellant] has experienced problems or been subjected to threats in the past because of the general security situation in Pakistan. Nor is there any evidence which suggests that he faces a real chance of experiencing serious or significant harm if he returns to Pakistan in the reasonably foreseeable future because of the general situation in Pakistan or KP in particular.

25    The Tribunal then expressed its conclusion, as follows:

36.    There is no credible evidence before me which suggests that there is a real chance that the [appellant] would experience serious harm amounting to persecution if he returned to Pakistan within the reasonably foreseeable future. I am not satisfied that he has a well-founded fear of persecution in Pakistan for any of the reasons set out in s.5J(1). I am therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(a).

37.    Having concluded that [the appellant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). There is no credible evidence before me which suggests that the [appellant] faces a real risk of suffering significant harm on return to Pakistan. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm and I am not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

38.    There is no suggestion that the [appellant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the [appellant] does not satisfy the criterion in s.36(2).

E.    The primary judge’s decision

26    On 29 April 2021, the appellant lodged an application for judicial review with the (then) Federal Circuit Court of Australia. The appellant’s grounds for review were (as written):

1.    Evidence Not accepted

2.    Member constantly accusing me for lieying.

3.    Member stated that I am safe in my country and have no life threats after these many years without any proof.

27    The primary judge held that each of these grounds had no merit and he dismissed the application. As the grounds of appeal to this Court do not reflect the grounds of review advanced before the primary judge, it is unnecessary to discuss the primary judge’s reasoning.

F.    The appeal to this court

Notice of appeal

28    The appellant’s Notice of Appeal sets out the following grounds:

1.    Not adapting fair process in making decision.

2.    Ignoring material, the material the tribunal was required to look at.

3.    Making decision for without considering raised issues.

Leave to appeal

29    As is apparent, these grounds of appeal do not correspond with the grounds of review relied upon before the primary judge. The appellant requires the leave of the Court to raise grounds not raised below: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11] (Siopis, Flick and Katzmann JJ). The exercise of the Court’s discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As the Full Court (Katzmann, Banks-Smith and Rofe JJ) explained in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34] to [37], the predominant consideration is the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel, Weinberg and Stone JJ), Francuziak at 335 [11] and Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144 at [40] (Stewart, Feutrill and Hespe JJ) and the authorities there cited. In considering the interests of justice, the merits of the proposed new grounds are an important consideration: Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ); Garland at [41].

30    I turn now to consider the merits of the grounds of appeal. Such consideration is to be undertaken on a “reasonably impressionistic basis”: see Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2010] FCA 1120 at [43] (Banks-Smith J) and the authorities there cited.

First ground of appeal

31    The first ground of appeal is that the Tribunal did not adopt a fair process in making its decision. This ground was not developed by the appellant beyond assertions that: (1) the telephone call by which the hearing was conducted dropped out twice; and (2) he was not given a “proper audience” to explain his case. However there is no evidence, by way of transcript or otherwise, of what occurred during the hearing. I am not persuaded that this ground has any merit. The absence of merit is a sufficient reason not to grant leave with respect to the first ground of appeal.

Second and third grounds of appeal

32    The second and third grounds of appeal, in view of the arguments developed at the hearing and in subsequent written submissions, are conveniently considered together. In substance, the appellant contends that the Tribunal was obliged to consider the police report and failed to do so.

33    Having regard to the Reasons and the police report, I have formed the impression that grounds 2 and 3 have merit, given the potential significance of the police report and the apparent lack of reference to it having been considered in the Reasons.

34    Whilst there is no explanation from the appellant as to why those grounds were not advanced before the primary judge, I give this little weight in circumstances where the appellant was (and remains) unrepresented. I also note that the Minister has not contended that any prejudice arises from the fact that these grounds were not raised until the matter reached this Court. Taking all of the above into account, together with the consequence for the appellant if leave were not granted, I have formed the view that leave should be granted to the appellant to rely upon his second and third grounds of appeal.

The second and third grounds of appeal

35    I turn now to consider the second and third grounds of appeal in detail.

36    It is clear that the appellant made a representation to the delegate and the Tribunal that he feared harm from the Taliban in part because his cousin had been killed in circumstances where he had been mistaken for the appellant, and that the police report was corroborative of that claim. The Minister (appropriately) did not submit that this claim was not substantial or clearly articulated, or that it did not arise on the materials before the Tribunal. The Minister also accepted that the Tribunal had the police report before it.

37    The nature of the obligation upon the Tribunal to consider representations made to it was explained by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at 508 to 510 ([24] to [27]):

24.    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25.    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26.    Labels like “active intellectual process” and “proper, genuine and realistic consideration” 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”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[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.

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 or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(emphasis added; footnotes omitted)

38    In determining whether the Tribunal considered the police report – in the sense of adverting to and understanding that report, as opposed to evaluating it or ascribing a particular weight to it: see ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7] (Mortimer J (as her Honour then was), Colvin and O’Sullivan JJ) – it is necessary to consider the Reasons, so as to understand why the Tribunal exercised its power in the way that it did: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at 446 [47] (Allsop CJ, Robertson and Mortimer JJ (as her Honour then was)). The Reasons are to be read as a whole and fairly, and not with an eye keenly attuned to the perception of error. Further, the Court should not be concerned with looseness in language or unhappy phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); BVD19 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at 45 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ); Plaintiff M1/2021 at 512 [38] (Kiefel CJ, Keane, Gordon and Steward JJ).

39    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 the Full Court (French, Sackville and Hely JJ) explained at 604 to 605 ([46] to [47]):

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 and 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.

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

40    Having read the Reasons with the matters set out at [37] to [39] above in mind and having considered the police report, I am satisfied that the Tribunal did not have regard to the police report, for the following reasons.

41    The police report was information of some significance. It was, ex facie, a document prepared by a police authority recording a contemporaneous account of events from the appellant’s father concerning the murder of the appellant’s cousin which included:

The reason behind this attack was these people wanted to kill [the appellant]. They are continuously threatening through phone calls to me that [the appellant] who is studying/residing abroad now a days, to compromise and also co-operate us in raising fund as he did before. If you did not comply with our order [the appellant] will not be able to return Pakistan but not even to life, mind it. Today they got information that [the appellant] is also going to attend the marriage ceremony of my nephew … at Islamabad therefore they attacked on us with intention to kill [the appellant] …

42    Thus, the police report contained evidence: (1) that the appellant’s father had received calls in which the callers were continuously threatening that the appellant would be killed if he did not co-operate with the callers in raising funds as he had before; and (2) of the appellant’s father’s belief that the assailants mistook the appellant’s cousin for the appellant. As such, the police report was corroborative of the appellant’s claims that: (1) he was at risk of being killed by the Taliban; and (2) his cousin was killed because he was mistaken for the appellant.

43    The Reasons contain no express reference to any consideration of the police report. Although at R[19] the Tribunal stated: “[The appellant] said that his father had lodged a report with police about his cousin’s death”, this statement does not suggest that the Tribunal considered the police report. It is no more than a record of what the appellant said to the Tribunal and sits within R[19] as one of several statements made by the appellant.

44    There is also nothing within the Reasons from which it might be inferred that the Tribunal did consider the police report.

45    Given the significance of the police report, the absence of reference within the Reasons (expressly or by inference) to the Tribunal having considered the police report suggests that it was not considered by the Tribunal.

46    Further, the Tribunal made findings in terms which one would not expect to have been used if the Tribunal had considered the police report. In this regard, the Tribunal found: (1) at R[33] that the appellant had concocted the claim that his cousin was killed because he was mistaken for the appellant; (2) at R[34] that no evidence had been provided that suggested that the appellant faced a real chance of suffering serious or significant harm if he were to return to Pakistan at that time or in the then reasonably foreseeable future; (3) at R[36] that there was no credible evidence before the Tribunal which suggested that there was a real chance that the appellant would experience serious harm amounting to persecution if he were returned to Pakistan in the then reasonably foreseeable future; and (4) there was no credible evidence which suggested that the appellant faced a real risk of suffering significant harm on return to Pakistan (R[37]). It is difficult to see how findings expressed in these terms could have been made if the Tribunal had considered the police report.

47    It is, of course, possible that the Tribunal both considered the police report and formed the view that it was of no probative value. However, if the Tribunal formed such a view, it would be expected that it would have set out such a view (as the delegate did – see [8(2)] above) given the significance of the police report. Further, the Tribunal recounted at R[20] to [24] various matters that it had put to the appellant as obstacles to an acceptance of his claims. No mention was made of any issue with the veracity or authenticity of the police report. Thus, I do not accept the Minister’s submission that I should infer that the Tribunal did take the police report into account but did not mention it in its Reasons because it considered it to have no meaningful probative value. Further, as the Full Court (Markovic, Thomas and Button JJ) explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 at [61] the beneficial approach taken to the construction of the reasons of a decision-maker does not permit a court to fill in the gaps in the path of the decision-maker’s reasoning and it is not sufficient that a particular finding was open to the Tribunal (see also Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115; (2022) 403 ALR 232 (Farrell, Moshinsky and Burley JJ).

48    The Minister also submitted that:

(1)    it is not an error for a decision-maker who is convinced that a witness is fabricating a story to reject corroborative evidence even though there is no independent ground for rejection other than the reasons given for disbelieving the witness, citing Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 63 [12] (Gleeson CJ) and 70 [49] (McHugh and Gummow JJ); and

(2)    the present case is one in which it was open to the Tribunal to pay no regard to corroborative evidence because the appellant’s credibility had been so weakened that “the well has been poisoned beyond redemption”, citing S20/2002 at 70 [49].

49    I do not accept this submission. There is no basis from which to infer that the Tribunal member rejected the evidence in the police report because of the view that she had formed as to the appellant’s credibility (or indeed that she had considered and rejected the police report at all).

50    I am also satisfied that the error made by the Tribunal in failing to consider the police report was material in the sense that there is a realistic possibility that the decision made by the Tribunal could have been different had the Tribunal considered that report: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 445 [45] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at 524 [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). In this regard, it is noteworthy that the reasoning of the Tribunal member was squarely based upon her views that: (1) the appellant was not a truthful or credible witness (R[25]), including her finding that the appellant concocted the claim that his cousin was killed because he was mistaken for the appellant in order to obtain a protection visa (R[33]); (2) there was no evidence that the appellant faced a real chance of suffering serious or significant harm if he returns to Pakistan (R[34]); (3) there was no credible evidence which suggested that there was a real chance that the appellant would experience serious harm amounting to persecution (R[36]); and (4) there was no credible evidence which suggested that the appellant faced a real risk of suffering significant harm on return to Pakistan (R[37]). Had the Tribunal member considered the police report – which, as noted above, is ex facie a document that he was at risk of being killed by the Taliban and corroborative of the appellant’s claim that his cousin was killed because he was mistaken for the appellant – she could have taken a different view as to the veracity of the appellant’s oral evidence and whether there was evidence corroborative of his claim concerning the murder of his cousin, producing the realistic possibility of a different outcome.

51    The Minister submitted that any error made by the Tribunal in failing to consider the police report was immaterial because the Tribunal plainly considered the claims made by the appellant. I do not accept this submission. Whilst the Tribunal did consider the appellant’s claims in a broad sense, it did so absent consideration of the police report. As noted above, there is a realistic possibility that a different decision could have been reached on those claims if the Tribunal had considered those claims in a context which included the police report.

G.    Conclusion

52    The Tribunal erred in failing to consider the police report and given the materiality of that error it is a jurisdictional error. Leave to rely upon the second and third grounds of appeal should be given, the appeal should be allowed, the orders of the primary judge should be set aside, and in lieu thereof orders should be made setting aside the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law. Costs should follow the event. I will make orders accordingly.

Associate:    

Dated:    13 September 2023