Ground 1
47 The first ground of appeal is expressed in the following terms subject to some corrections that I have made to identify the Pakistan Report rather than an analogous report detailing country information concerning Afghanistan that is not the subject of the present challenge:
The Delegate made a jurisdictional error by failing to taken into account a country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.
PARTICULARS
(a) On 21 June 2013, the Minister for Immigration and Citizenship gave a Direction under s 499 of the Act (Direction No. 56) requiring decision makers to take into account a country information assessment prepared by DFAT expressly for protection status determination purposes.
(b) On [1] September 2017 DFAT prepared a report entitled "DFAT Country Information Report [Pakistan]" (DFAT Report) for protection status determination purposes.
(c) In the DFAT Report, it was stated at paragraph 3.9: "Credible sources told DFAT that Afghans are typically able to access Afghan identity information, including Taskeras, from the Afghan Embassy in Islamabad. DFAT was unable to obtain specific information about whether Afghans, including Hazaras, can access formal documentation through the Afghan Consulate in Quetta, but DFAT considers it plausible that they can".
(d) In finding that he did not accept that the applicant's Taskera was genuinely issued by the Afghan authorities in Quetta, the Delegate failed to take into account relevant information in the DFAT Report at paragraph 3.9 concerning the issue of Afghan identity documentation through the Afghan Embassy in Islamabad and the Afghan Consulate in Quetta.
48 The appellant argues that the delegate made a critical finding that the appellant could not have obtained the appellant's taskera in Quetta as he claimed, because the delegate believed that country information indicated that a taskera could not be obtained in Quetta.
49 It would seem that the delegate acted, inter-alia, upon the information in an email dated 10 August 2017 from the Integrity Team, Immigration Section, Australian High Commission, Islamabad, Pakistan concerning Boat ID ISU124 (the ISU 124 advice) which stated:
According to the information obtained from our contact in Afghan Consulate General Quetta. Tazkira's (sic) can only be obtained from Afghanistan. Consulates never issue Tazkiras. Tazkira number should be identical doesn't matter on which document it is written. It always remains the same.
NOTE:
If Tazkira was issued from Afghan Consulate General Quetta then it does not hold any authenticity as we have confirmed it previously that they does not hold any authority to issue Tazkiras as they can only be issued from Afghanistan.
50 This information was dated 10 August 2017 and admittedly was specific. But the Pakistan Report was dated 1 September 2017. And as later stipulated, could on one view be taken to have been more probative than the earlier gathered information, including the previous country information before the delegate.
51 Let me note several features of the Pakistan Report.
52 Its opening paras 1.1 to 1.4 stated the following:
1.1 This Country Information Report has been prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determination purposes only. It provides DFAT's best judgment and assessment at time of writing and is distinct from Australian government policy with respect to Pakistan.
1.2 The report provides a general, rather than an exhaustive country overview. It has been prepared with regard to the current caseload for decision-makers in Australia without reference to individual applications for protection visas. The report does not contain policy guidance for decision-makers.
1.3 Ministerial Direction Number 56 of 21 June 2013 under s 499 of the Migration Act 1958 states that:
Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.
1.4 This report is based on DFAT's on-the-ground knowledge and discussions with a range of sources in Pakistan.
53 Then at paras 3.7 to 3.9 the following was said:
3.7 The Hazara ethnic group has lived in central Afghanistan for centuries, with many Hazaras migrating to Pakistan in the second half of the 20th century. Hazaras are descended from eastern and western Eurasian peoples, making them visibly distinct from other ethnic groups in Pakistan. Hazaras are overwhelmingly Shi'a Muslims, predominantly of the Twelver Sect (athna asharia), with a small Sunni minority.
3.8 While there are no reliable official data on the size of the Hazara population in Pakistan, estimates range up to around one million. The majority of Hazaras live in Quetta, Balochistan, with smaller but significant populations in major urban centres such as Karachi.
3.9 The majority of Hazaras in Pakistan have lived there for decades, are Pakistani citizens and can access formal identification such as Computerised National identity Cards (CNICs). Hazara children born in Pakistan also have Pakistani citizenship. More recent Hazara arrivals from Afghanistan typically do not have citizenship, but tend to have access to formal documentation in the form of immigration cards, which provides some rights such as access to drivers' licences. Credible sources told DFAT that Afghans are typically able to access Afghan identity documentation, including Taskeras, from the Afghan Embassy in Islamabad. DFAT was unable to obtain specific information about whether Afghans, including Hazaras, can access formal documentation through the Afghan Consulate in Quetta, but DFAT considers it plausible that they can.
54 So, para 3.9 of the Pakistan Report specifically stated that DFAT considered it to be plausible that a person such as the appellant could obtain a taskera from Quetta. Now the delegate did not mention this specific item of information, although he did refer to the Pakistan Report in general terms in various parts of his reasons. Indeed, it is apparent that the delegate treated DFAT as being a reliable source of relevant information. But though there is extensive reference to the Pakistan Report throughout the delegate's reasons, that fact alone does not, of course, mean that the delegate was required to accept the DFAT assessment in the Pakistan Report.
55 But I agree with the appellant that it is plain that the DFAT assessment at para 3.9 of the Pakistan Report was important country information relevant to an important factual issue before the delegate. If accepted, that information was important to assessing the appellant's claims of having obtained his taskera in Quetta. In my view DFAT's assessment of this being "plausible" should have been confronted expressly by the delegate, particularly given that it was the most recent assessment before the delegate.
56 In these circumstances, I agree with the appellant that the failure to mention expressly this passage of the Pakistan Report supports an inference that it was not considered by the delegate. There was therefore a failure to consider important country information, which amounts to a jurisdictional error. And the primary judge should so have found.
57 Now the Minister says that the delegate did take account of the Pakistan Report, thus complying with his obligation under s 499(2A) and specifically Direction 56.
58 Moreover, the Minister says, as the primary judge also held, that the weight to be given to country information is a matter for the delegate.
59 Generally, the Minister says that there was no error in the treatment of this issue by the primary judge. The Minister reiterated what he put below, which was set out in the primary judge's reasons (at [44] to [45]), and adopted the primary judge's analysis rejecting this ground (at [46] to [78]).
60 But I would reject the Minister's contentions.
61 First, true it is that the delegate in a general sense took into account the Pakistan Report. But when one considers the delegate's reasons, it would seem to me that he did not take into account para 3.9. If he had taken into account para 3.9, I do not see how the delegate could have sensibly said in his reasons:
As country information indicates Taskeras are only issued inside Afghanistan and the applicant claimed he was issued with a Taskera from the Afghan Consulate in Quetta, Pakistan[,] I find his Taskera is not a genuine document.
62 Clearly, para 3.9 did not support such a proposition. Now the ISU 124 advice supported what the delegate said, but this had an earlier date to the Pakistan Report.
63 Now plainly the delegate was not obliged to refer to every piece of evidence in his reasons. And I accept that I should not scrutinise his reasons with an eye attuned to error. But given such a statement in the delegate's reasons that I have just set out, one would have expected some reference to para 3.9 in the context where the delegate had expressly referred to country information and had used it to definitively state that the appellant's taskera could not have been issued in Quetta.
64 The Minister made much of what was said in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. Of course I accept that the weight to be given to country information is a matter for the delegate, not the primary judge nor I. Interestingly, it was also said in that case that it was not a jurisdictional error for the Tribunal to base its decision on country information that was not true. Here, of course, the argument is that the delegate failed to base his decision on country information that was true.
65 But accepting that the weight of the country information was a matter for the delegate, it still seems to me that the better view is that the delegate overlooked para 3.9.
66 If the delegate had considered para 3.9, one would have expected him to have referred to it and then discounted it in favour of earlier country or other information. But there is no such discussion. I infer that para 3.9 was not considered at all, rather than considered but discounted.
67 Now I have considered Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 which discusses the scenario where more recent country information may not be preferred or put aside in favour of older country information. And clearly, a decision maker is entitled in his consideration and weighing to prefer the older information. But as was said by Kenny, Griffiths and Mortimer JJ in that case (at [74]):
That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant's circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
68 But in the present context, there is no such discussion in the delegate's reasons.
69 I have considered what the primary judge said on this aspect at [54] to [75]. His Honour, as he said at [58], was not prepared to assume that the delegate did not have regard to para 3.9. I have taken a different view. When the delegate came to write up his reasons I think that he simply overlooked para 3.9. Now at the expressed level of generality I can agree with some of the general propositions stated by the primary judge at [60] to [64]. Nevertheless, I think that para 3.9 was overlooked. Further, the primary judge at [64] to [66] referred to the ISU 124 advice. But as I have said, this just suggests that para 3.9 was overlooked. Now the point is made that such earlier information was more specific, which is true. Nevertheless, given the materiality of para 3.9 to the bogus document question, if para 3.9 had been considered, one would have expected it to be discussed and then discounted. But the delegate's reasons are silent on that point. In summary, I do not accept the primary judge's analysis that para 3.9 was considered but discounted by the delegate in some unidentified weighing process. Moreover, no statement of general administrative law principles can varnish over the delegate's defect.
70 Second, the Minister said that if the delegate made an error then realistically this could not have made any difference to the result. The Minister put to me the same point that was put to the primary judge and accepted by him (at [77]) that "the outcome would have been no different because the real basis for the finding that the Taskera was bogus was the inconsistency in the applicant's accounts". Now true it is that this was an important part of the delegate's analysis. Yet, the delegate had to consider and did consider objective matter including whether the appellant's taskera could be obtained in Quetta and inconsistencies between the appellant's taskera and what was represented to be the father's taskera. And matching inconsistencies in the appellant's version of events with the objective framework was an important part of the delegate's task.
71 But whether the appellant's taskera could be issued in Quetta was an important part of the objective matrix. Accordingly, I cannot say that the error made was not material. Jurisdictional error is demonstrated and the primary judge was in error for not so identifying.