CDA24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1644

1. The applicant is a citizen of Pakistan who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed that decision. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
2. The applicant relies on a sole ground asserting that the Tribunal made a jurisdictional error by making unreasonable findings without evidence to justify those findings and without asking itself what the consequences would be if an alternative interpretation were correct.
3. For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application to this Court is therefore dismissed.

1. On 31 July 2018 the applicant applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa on 9 November 2020.
2. On 24 November 2020 the applicant applied to the Tribunal for merits review of the delegate's decision. The applicant attended hearings before the Tribunal on 31 October 2023, 14 November 2023 and 6 March 2024.
3. On 25 March 2024 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. Those parts of the Tribunal decision that are relevant to the ground of application are addressed below in the consideration of the ground.

1. Pursuant to an amended application filed on 14 February 2025, the applicant relies on the following ground:

The Tribunal made unreasonable findings between contrasting interpretations of events without any evidence justify those findings, and without asking itself what would be the consequences if an alternative interpretation were correct.

Particulars

(a) The Applicant claimed that he was in a patrol that was attacked by Taliban fighters. The Tribunal accepted that the attack had happened, but considered an alternative explanation that the attackers were criminals engaged in illegal logging. The Tribunal made a definitive finding that the alternative explanation was correct based on no evidence, without allowing for the possibility that it might have been wrong.

(a) a court book filed on behalf of the Minister on 17 October 2024; and

(b) an affidavit affirmed by Maria Teixeira-Alves and filed on behalf of the applicant on 10 March 2025, annexing a copy of a journal article.

Relevant parts of the Tribunal's reasons and country information relied on by the Tribunal

1. The applicant's ground relates to the reasonableness of the Tribunal's consideration of the applicant's claim to have been shot at, while working as a forestry guard, by unknown persons who he believed were Taliban fighters. The Tribunal addressed this claim at [44]-[54] of its reasons. Before considering the issues raised by the ground, it is convenient to set out the relevant parts of the Tribunal's reasons in full.
2. The Tribunal said at [44] to [54] of its reasons (footnotes omitted):
   1. The applicant married in 2015. Following his marriage, he was encouraged by his family to seek employment so that his thoughts could be diverted away from the kidnapping experience that had led him to live an isolated life.
   2. The applicant was able to obtain a government job in December 2015 with the Department of Forest, as a Forestry Guard. His job was to look after the forests so that people don't undertake illegal cutting of trees or use the land for farming or to extract natural resources. He said that he didn't carry a weapon, but he was accompanied by a guard who did.
   3. The applicant claims to have been fired upon while working as a Forestry Guard in July 2017. The incident occurred in [place omitted], a forest in [place omitted] District, some 20-25 kilometres away from his home. He said that those he believed to be Taliban were at a distance from him when they fired. He said that his guard exchanged fire with them. He believes that he was specifically targeted.
   4. I suggested that if they were targeting him, they could have walked up peacefully to him and shot the guard and then him, but instead they shot from a distance which suggest that they were trying to keep him away. He suggested that they were scared to come too close to him to harm him as he had a guard.
   5. The applicant claims that the next day his father was called by the Taliban. He claims that they called his father and said that he was lucky and that next time they would not spare his life.
   6. I noted that he had said that he would return from his forestry duties almost every night and asked why he thought that they didn't attack him just before returning home rather than shooting from a distance in a forest. He said that he believes they found an opportunity when he was out, and he was just lucky.
   7. I referenced country information that explained how criminal activity was involved in the illegal harvesting of trees from forests. He said that in remote areas there are illegal activities including timber mafia and that the Taliban were involved in this activity.
   8. The applicant claims that following this attack he was retraumatised and as such moved to Islamabad where he stayed with his father's friend before coming to Australia.
   9. The applicant claims that while he was living in Islamabad the Taliban called his father twice saying that he was lucky to have gotten away and that they will find him and harm him. He said that this was a common tactic of the Taliban to mentally harass people showing how vulnerable they were.
   10. Regarding the forest incident, I accept that the incident occurred, but I do not accept that it was targeted as opposed to his presence being noticed when the shooters were involved in illegal activity. I find that the shooters did not know who he was and that there are no lingering repercussions to him arising from this chance encounter 7 years ago.
   11. With regards to the calls to the father about the applicant, I do not accept that this occurred as I do not accept that the shooters in the forest knew who the forest guard was.
3. The Tribunal at [50] of its reasons referred to country information it had put to the applicant. The country information identified is a journal article entitled 'Scientific Forest Management' (journal article). The journal article is annexed to the affidavit of Ms Teixeira-Alves filed on 10 March 2025. The applicant has identified in his submissions that the journal article suggests that poor management of the forest:

... inflected severe blow to the peace of the area and fueled militancy in Swat during 2005-09 as lawlessness was favourable environment for illegal forest cutting and involvement of timber mafia in supporting militancy in Swat cannot be ruled out.

1. The Tribunal considered the applicant's cumulative risk profile at [167]-[170] of its reasons:
   1. I now turn my mind to consider the entire circumstances of the applicant noting that some risks of harm would overlap and compound, increasing the possibility of serious or significant harm. For example, the applicant's profile among the Taliban and others who are against the Pakistan government would compound for reasons of being on a peace committee, a member of the ANP, a Pashtun and being related to his father and other family members who have a similar history and having just returned from the West.
   2. Alternatively, from the perspective of the government, the harm he faces from any anti­Pashtun sentiment, blowback arising from any actual or imputed anti-government political opinion and being associated directly and through his family with the ANP can cumulatively lead to the amplification of risk for the applicant from the government.
   3. But in all cases, whether looking at it from the perspective of the harm that can be accrued from the Taliban and other Islamist forces, from the government or the community including the wife's family, the instances where the compounding impacts the risks, or the harm, amounts to only marginal increases.
   4. When considering all of the possible permutations of the applicant's risk profile and how each interacts with the other and taking into consideration the marginal amplification, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

Did the Tribunal make a finding that was unreasonable or without any probative evidence?

1. The applicant's core complaint relates to the Tribunal's finding at [53], where it accepted that the alleged forestry incident occurred, but did not accept that the applicant was targeted, as opposed to his presence being noticed when the shooters were engaged in illegal activity. The applicant submitted that the Tribunal gave no reason for 'finding' that the attackers were simply criminals engaged in illegal activities, despite the evidence in the journal article that militancy could not be ruled out.
2. The applicant submitted that simply choosing one available option over another, without any probative material supporting either one, is similar to flipping a coin and can only be described as lacking an evident and intelligible justification. The applicant submitted at [12]-[13] of his written submissions (emphasis in original):
   1. The "country information" may have been probative material relating to the involvement of criminal gangs in the illegal logging, but that involvement did not exclude the involvement of terrorists, and could not give rise to a reasonable inference that Taliban or other terrorists could never have been involved. In fact, the Journal article suggested the opposite. Without probative evidence that the loggers must have been criminals, no reasonable Tribunal could have reached the state of "no real doubt" that would have allowed it to disregard completely the possibility that they were Taliban or a similar group, and consequently not need to ask whether, if they were, there was a real chance that they might target him again in the future.
   2. The subsequent rejection of the claim that the father had received further threats raised the Tribunal's random preference to the level of a "poisoned well", meaning that no corroboration needed to be considered.
3. In his oral submissions, Counsel for the applicant acknowledged that the journal article does not obviously say that the forest is infested with Taliban, but submitted that the journal article does not say that the only illegal forest cutting that is going on is that done by some sort of mafia group. Counsel for the applicant submitted that this means that the Tribunal made a categorical finding, with no other evidence whatsoever, that it was not the Taliban, it was the criminals. The Tribunal therefore should have considered the possibility that it might have been terrorists shooting at the applicant.
4. The applicant's submission that the Tribunal made a categorical finding that the shooters were not Taliban but some other criminals does not, in my view, accurately reflect the Tribunal's reasons. As submitted by the Minister, the Tribunal's ultimate finding and basis for rejecting the claim was that it did not accept the forestry incident was targeted against the applicant. Rather, the Tribunal considered that the applicant's presence was noticed when the shooters were involved in illegal activity. The Tribunal found that the shooters did not know who the applicant was.
5. The Tribunal did not make any express finding as to whether the shooters were Taliban or not. Having found that the shooters did not know who the applicant was and therefore did not target him, it did not need to make any finding as to the identity of the shooters.
6. The Tribunal's lack of acceptance that the Taliban called his father was not based on any finding that it was not the Taliban who was involved in the shooting, but rather because the Tribunal did not accept that the shooters in the forest knew who the forest guard was.
7. I accept the Minister's submission that the Tribunal had a probative basis for its non-acceptance of the applicant's claim to have been targeted and its finding that the shooters did not know who the applicant was. The applicant's evidence, recorded at [46] of the Tribunal's reasons, was that the shooters, who the applicant believed to be Taliban, were at a distance from him when they fired. The evidence that the shooters were at a distance when they fired is capable of rationally supporting the Tribunal's finding that the shooters did not know who the applicant was. It cannot therefore be said that the Tribunal made that finding without any evidence.
8. The Tribunal put the applicant on notice of its concerns with his evidence that he was targeted through the questions it asked him. Based on the Tribunal's reasons, it appears that the Tribunal suggested to the applicant that the shooters could have walked up peacefully and shot the guard and then the applicant if they were targeting him, or that they could have attacked him just before he returned home, as he did almost every night, rather than shooting from a distance in a forest.
9. The finding made by the Tribunal was open to it on the evidence before it and was not illogical, irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135].
10. The applicant further submitted that unwarranted assumptions based on no evidence as to the behaviour of groups or individuals have been found to be unreasonable in a number of cases. He cited FPA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 770 and CXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 1170. However, Counsel for the applicant did not clearly identify how these authorities apply in the present case, and did not give any indication at all of what the unwarranted assumptions might be until his reply submissions at the hearing. Counsel for the applicant referred to [47] of the Tribunal's reasons, in which it was suggested that the shooters could have just walked up peacefully to the applicant. Counsel for the applicant submitted that it is pure and utter speculation about how somebody carrying a gun in another country with radical beliefs and hatred might have behaved in a given situation.
11. I do not accept that the Tribunal made any unwarranted assumption in the present case. The applicant did not claim to know who the shooters were and in his protection visa application, he claimed that he was 'attacked and fired at by unknown people'. He subsequently expressed the belief that the shooters were the Taliban and that he was targeted. The Tribunal asked questions of the applicant, apparently to test his belief that he was targeted. One proposition that was put to the applicant for comment was that if the shooters were targeting him, they could have walked up peacefully to him and shot the guard and then him, but instead shot from a distance. I do not consider that testing a claim that an applicant has been targeted in a shooting by suggesting that the shooters could have come closer if they were, in fact, targeting the applicant, involves any unwarranted assumption. If there is any assumption implicit in the Tribunal's question, it is that the shooters would be able to better target a person in a forest (if that is what they were doing) from a closer distance. Such an assumption is not unwarranted.

Was the Tribunal required to consider the possibility that its finding may have been wrong?

1. The applicant's position is that unless the Tribunal had 'no real doubt' about its finding, it was required to consider the possibility that the applicant's interpretation of the shooting incident was the correct interpretation. Counsel for the applicant submitted that the Tribunal in this matter could not reasonably have had no real doubt about its finding.
2. This submission is based on what is commonly referred to as the 'what if I am wrong?' test, which was described by Sackville J in Minister for Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (Rajalingam) at [62]:

In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution.

1. As explained by the Full Court of the Federal Court in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [36], the Tribunal needs to have 'no real doubt' about the falsity of a claim in order to not have to consider any alternative explanation of any claim made.
2. Whether or not the Tribunal had any real doubt about its findings is to be assessed by reference to the Tribunal's reasons: Rajalingam at [67].
3. In addressing this aspect of the applicant's ground, the Minister approached the question slightly different to how it was raised by the applicant. The Minister, in response to the applicant's reference to Rajalingam, referred to Wigney J's recent 'restatement' of the relevant principle of the Rajalingam line of authority, set out in BBW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 502 at [41]:

It may be accepted that in some cases a decision-maker in respect of a protection visa application may err in a jurisdictional sense if they fail to consider whether the "accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect": Thanh Phat Ma v Billings [1996] FCA 1121; (1996) 142 ALR 158; 71 FCR 431 at 436; Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220; [1999] FCA 719 at [48]. The decision-maker in this case, however, made no such error. There is no indication whatsoever in the Authority's reasons that it somehow compartmentalised its factual findings concerning the appellant's claims or failed to have regard to the accumulation of the appellant's circumstances. Rather, the reasons reveal that the Authority considered that the appellant's circumstances, as a whole, were not such that he met the criteria for the grant of a protection visa.

1. The Minister submitted that the statutory task of the Tribunal is to determine whether, in the circumstances, there is a 'real chance of persecution' and the concept of 'speculation' referred to in cases such as Rajalingam must be understood in that context. The Minister submitted that the Tribunal at [170] (extracted above) considered 'all of the possible permutations' of the applicant's risk profile and found that the applicant does not face a real chance of serious harm. The Minister submitted that this approach does not demonstrate error.
2. The Minister focused on a different aspect of Rajalingam to that which the applicant addressed. The applicant focused on the need to apply the 'what if I am wrong?' test, whereas the Minister focused on the requirement to engage in a cumulative consideration of the applicant's claims. In his oral submissions, Counsel for the Minister submitted, in relation to the question based on Rajalingam insofar as it arises in the present case:

It's still down to its essential principle. That line of authority is simply saying that to discharge its function, the tribunal has to reason to find whether there is a real chance of persecution. And as part of doing that, it may have to consider cumulatively the claims and even claims where they might appear to be weak but cannot be completely excluded.

1. In his reply submissions at the hearing, Counsel for the applicant referred to the submission of the Minister and submitted the applicant's argument is that the Tribunal did not consider all of the possible permutations. Rather, it out of hand discarded one of the significant possibilities.
2. As discussed above, the Tribunal in this matter did not reject the applicant's claims about the shooting incident because it did not consider the shooters to be Taliban. Rather, it found that the shooters did not know who the applicant was and therefore did not accept that he was targeted. I have nevertheless considered whether the Tribunal was required to have applied the 'what if I am wrong?' test to consider the possibility that the applicant may have been targeted by the Taliban as claimed. However, this test is appropriately applied to the Tribunal's findings as made, rather than how they were characterised by the applicant.
3. On a fair construction of the Tribunal's reasons, there is nothing to indicate that the Tribunal had any real doubt about its findings. No words indicating doubt are expressed in the paragraphs that directly consider the shooting incident, and there is nothing in the balance of the Tribunal's reasons that would support the view that it had any doubt about its finding at [53].
4. In submitting that the Tribunal could not rationally have no doubt about its finding, the applicant's written submission again focused on the alleged identity of the shooters, rather than the finding that the shooters did not know the identity of the applicant. The applicant submitted that without probative evidence that the loggers must have been criminals, no reasonable Tribunal could have reached the state of 'no real doubt' that would have allowed it to completely disregard the possibility that they were Taliban or a similar group. This submission cannot succeed given the Tribunal's focus in its finding on the shooter's lack of knowledge of the applicant's identity.
5. In his oral submissions, Counsel for the applicant submitted that there was nothing inherently implausible or untrue about the claim that the applicant made and there was no evidence that, for example, he was not there at the time or he never worked for the Forest Guard. Counsel for the applicant acknowledged that the Tribunal was not required to find that it was the Taliban, but rather should have considered it as a possibility and therefore gone on to look at the rest of the case and come to a conclusion about other aspects of the case.
6. The applicant has not established that it was not open to the Tribunal, acting reasonably, to have no real doubt about its finding that the shooters did not know the identity of the applicant and that it therefore did not accept that the applicant was targeted. The Tribunal was required to make findings based on the evidence before it. In this case, as discussed above, it made a rational finding based on probative evidence. The simple fact that a claim is not inherently implausible or that there is no evidence to categorically disprove a claim does not establish that there is not a rational basis for the Tribunal to have no real doubt about a finding made in relation to the claim.
7. The Tribunal was therefore not required to speculate on the possibility that, notwithstanding its finding that the shooters did not know the identity of the applicant, the shooters were Taliban members who were specifically targeting the applicant. This is particularly so in circumstances where the applicant did not claim to know the identity of the shooters and rather expressed a belief that they were Taliban. The applicant's belief was presumably based on his claimed profile and the other reasons he claimed to be of adverse interest to the Taliban, which the Tribunal addressed in its reasons.
8. That then leads to the Minister's submission that the Tribunal considered the applicant's claims and profile cumulatively. The Tribunal in its reasons considered all of the bases upon which the applicant claimed to have an adverse profile to the Taliban. It did not consider that any of the individual reasons would give rise to a real chance of serious harm in the reasonably foreseeable future. It then also considered whether these various matters cumulatively might increase the chance of harm that the applicant may face. This cumulative consideration can be seen at [167]-[170] of the Tribunal's reasons. It was appropriate for the Tribunal to proceed in this manner.
9. Given the Tribunal's findings in relation to the shooting incident in the forest and my finding above that the Tribunal was not required to apply the 'what if I am wrong?' test to its findings on that incident, the Tribunal was not required to specifically address the shooting incident in the forest in its cumulative consideration of the applicant's claims.

1. For the reasons given, the applicant's ground is not established. In circumstances where the applicant has not established that the Tribunal made a jurisdictional error, the application to this Court must be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant's matter was before it for review.