Consideration
19 I am not satisfied that the trial judge erred in using the expression "extreme" to characterise illogicality, because the use of that adjective has been used in at least two decisions of the Full Court, namely in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517-518 [60]-[61] and DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at 184 30. In the latter decision, Kenny, Kerr and Perry JJ said that:
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions" (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, "[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality": CQG15 at [61].
(emphasis added)
20 In arriving at her conclusion in AWU16 [2020] FCA 513 at [24]-[26], Mortimer J relied on what Crennan and Bell JJ had said in SZMDS 240 CLR at 649-650 [135], namely:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. 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.
(emphasis added)
21 In SZATV 233 CLR at 25 [18], Gummow, Hayne and Crennan JJ said:
It also is well settled since Chan v Minister for Immigration and Ethnic Affairs [(1989) 169 CLR 379 at 389, 396-397, 406, 413, 429] and Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559 at 571-572, 596], that the requirement that the "fear" be "well-founded" adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which formed the basis of the fear experienced by the particular applicant.
22 Their Honours concluded, in relation to whether it was reasonable for a decision maker to find that an applicant for protection could relocate safely to another part of his or her country of nationality, that (233 CLR at 27 [24]):
… What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
23 In my opinion, the Authority's reasoning process could not be characterised as irrational or unreasonable. It identified country information and explained the relationship between that information and its factual conclusions. It had squarely in mind the appellant's well-founded fear that he would face serious or significant harm in his home and nearby provinces. But, it examined country information and the characteristics which it had accepted gave rise to the appellant's well-founded fear in his home and nearby provinces, in considering what would be his position in Kabul, were he to relocate there, in order to determine whether that fear was well-founded in that situation: SZATV 233 CLR at 25 [18]; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ and 596 per Kirby J. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ held in Guo 191 CLR at 574-575:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
(emphasis added)
24 While different minds may have come to a different view, ultimately the question was one of fact for the Authority to assess having regard to country information and its findings as to the basis on which the appellant claimed to have the well-founded fear. There is no error of law in an administrative decision-maker making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. As their Honours noted, it is important to bear in mind the limited role of a court in reviewing the exercise of administrative decisions.
25 I am unable to perceive any relevant illogicality in the way in which the Authority analysed the position on the basis of what it summarised as the country information it had before it. It is true that in [25] it referred to a DFAT report dated 18 September 2015 on conditions in Kabul for its conclusion that Sunni Shia sectarian violence was infrequent in Kabul. The Authority cited that report for its mention of the February 2014 and March 2015 attacks, that antedated the 9 October 2015 bomb attack, which the Authority mentioned in the immediately preceding sentence. However, the Authority's ultimate assessment in [25], although based on the earlier DFAT report, was one which was open to it and not so obviously illogical or irrational that it could constitute a jurisdictional error. Nor is the Authority's finding that the situation as to the risks to Hazara Shias fleeing from the Taliban in Ghazni and Zabul provinces was fluid illogical in respect of its ultimate conclusion that those risks did not apply in Kabul, where about two million Hazara Shias lived.
26 In addition, I am not satisfied that the Authority's reliance on country information from the Danish Immigration Service of 1 May 2012 could be characterised as an irrational or unreasonable basis for its finding that persons like the appellant, who did not have a high profile of persons such as a former president of Afghanistan or foreign advisers to ministries in Kabul, would not be persons whom the Taliban targeted. The Authority clearly had in mind, in [29], that the appellant had been specifically targeted by the Taliban in the Qarabagh District that was well outside his home area when they searched there for him, and that the Taliban or Al-Qaeda pursued and killed or otherwise harmed teaching staff in those areas. But, it found in [29] that there was no country information before it to suggest that any teaching staff or students in Kabul had been harmed in any way in the previous decade (to February 2016) by the Taliban or Al-Qaeda. In those circumstances, there was nothing illogical in its citing the 2012 report to support its ultimate conclusion that this continued to be the position at the beginning of 2016.
27 In my opinion, there is also no reason to think that the Authority did not genuinely make an overall assessment of the combination of the accepted bases of the appellant's fears based on his actual experiences. I am not persuaded that it can be suggested that the Authority was not entitled to make its finding that there was no real chance of the appellant facing the real risk of persecution or significant harm were he to return to Afghanistan and relocate to Kabul.