CXX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BEACH J: 1 The appellant appeals from a judgment of the Federal Circuit Court dismissing his application for judicial review of a decision of the Immigration Assessment Authority that had affirmed a decision of a delegate of the Minister refusing to grant to the appellant a safe haven enterprise visa (the visa). 2 The appellant presses only one of his grounds of appeal to the effect that the primary judge erred in failing to find that the Authority had made a jurisdictional error by making a finding that was legally unreasonable. 3 For the reasons that follow, this ground is not made out. 4 Let me begin with some background and then I will turn to the Authority's reasons. 5 The appellant first arrived in Australia on 11 November 2012 as an unauthorised maritime arrival. On 13 February 2017 he applied for the visa. He claimed to be a citizen of Afghanistan. 6 In support of his application, the appellant raised the following matters. He said that he was born in Ghazni Province, Afghanistan in 1987. He said that when he was five years old, he and his family moved to Pakistan, where they subsequently lived. Apparently, on his version, he had no legal right to live in Pakistan. In early 2011, so the appellant asserted, the appellant's brother returned to Afghanistan looking for work. The brother obtained employment working with foreign military forces in a kitchen. But in late 2011, the appellant's relatives called and told the appellant that his brother had been killed by the Taliban because he was working for foreigners. Soon after, so the appellant asserted, the appellant received a call from the Taliban threatening to kill him. 7 The appellant says that if he is returned to Afghanistan, the Taliban would kill him because of his relationship with his brother. The appellant also feared being targeted by his cousins in his home village in Afghanistan, as his father was in a land dispute with them. 8 On 13 June 2019, a delegate of the Minister refused to grant the visa. 9 On 18 June 2019, the delegate's decision was referred to the Authority for review. 10 On 12 July 2019, the Authority affirmed the delegate's decision. 11 The Authority accepted the appellant's claims as to his name, date of birth and that he was a Sunni Pashtun. However, the Authority held real doubt as to the appellant's claim that he had, since aged five, lived as an undocumented Afghan refugee in Pakistan. 12 The Authority considered the appellant's Afghan taskera, but had concerns about the veracity of the appellant's claims as to how he obtained it and the authenticity of the document itself. 13 The Authority considered that the appellant's evidence as to how he obtained the taskera was inconsistent with country information. It found it difficult to accept that the appellant could have obtained the taskera in the manner that he claimed and placed little weight on the document as genuine evidence of the appellant's identity. 14 The Authority observed that the document was issued in 2006, some five years before the appellant's cousin purportedly gave it to him. The Authority found it implausible that the appellant would, as he claimed, have contacted his cousin and asked him to obtain the taskera on his behalf, given the appellant's claim that he had had little contact with his family in Afghanistan following a land dispute in the early 1990s and that he feared they would kill him should he return to Afghanistan. 15 The Authority also observed that the appellant had failed to provide any evidence of the Afghan citizenship of any other family member, such as a taskera for his mother or father. The Authority found it implausible that the appellant or his cousin could have circumvented the requirement that a taskera belonging to an immediately family member be provided in order for a taskera to be issued to the appellant, especially given the length of the appellant's family's absence from Afghanistan. 16 The Authority also observed that taskeras are printed on standard paper and do not have any security features, and that the available country information indicated that there were high rates of taskera fraud. 17 Further, the Authority considered that the appellant's evidence regarding his claimed family situation lacked credibility. 18 The Authority considered that the appellant's evidence to the delegate regarding his life in Pakistan from 1992 until 2012 was problematic. In this context, it was pointed out that the appellant had consistently claimed that he and his family resided in the Khyber Pakhtunkhwa Province (KPP) as undocumented Afghan refugees. But the Authority observed that, since 2007, Afghans in Pakistan have been able to obtain proof of residency cards or citizenship cards, which conferred substantial benefits on their holder. Further, the Authority had difficulty accepting that the appellant and his family had made no efforts to register themselves with the Pakistani authorities under one of these schemes. The Authority also referred to other inconsistencies and implausibilities concerning education and the operation of the family business in Pakistan. 19 The Authority also did not find credible the appellant's claim that his family in Pakistan did not work because they were undocumented Afghan refugees or that they were solely reliant on him for financial support. It also had concerns with the appellant's claim to have departed Pakistan in January 2012 using a fraudulent Pakistani passport. 20 On the basis of the foregoing, the Authority was not satisfied that the appellant or any member of his immediate family were Afghan nationals or that any land dispute had taken place. Generally, the Authority considered that the appellant's evidence about his life in Pakistan was consistent with that of a Pakistani national, rather than that of a displaced Afghan. The Authority was satisfied that the appellant was a Pakistani national from KPP. 21 Further, the Authority found that the appellant's claims regarding his brother's death and the subsequent adverse attention from the Taliban to be lacking credibility and contrived. The Authority was not satisfied that the appellant faced a real chance of harm in KPP because he was a Sunni Pashtun, on account of any medical conditions, or as a returning asylum seeker. Accordingly, the Authority concluded that the appellant did not have a well-founded fear of persecution within the meaning given by s 5J of the Migration Act 1958 (Cth), and so did not meet the criterion set out in s 36(2)(a) of the Act. 22 Further, the Authority was not satisfied that the appellant faced a real risk of significant harm and so did not meet the criterion set out in s 36(2)(aa) of the Act. 23 For these reasons, the Authority affirmed the decision of the delegate. 24 The appellant then sought judicial review in the Federal Circuit Court, but his application was unsuccessful. 25 Before the primary judge, the appellant advanced two grounds of review. I can put the first ground to one side save as to an aspect of it that was picked up and related to the second ground. The second ground asserted unreasonableness relating to the finding that the appellant was a Pakistani national. It was said that this finding was based upon a mistake of fact that the appellant had received his taskera from his cousin in 2011. 26 Now the primary judge in relation to the first ground said (at [37] and [38]): Ground one asserts that there was no evidence for the Authority to make the finding that the applicant only received his identity document or taskera in 2011, from his cousin. Counsel for the applicant points out that there was no claim made by the applicant that this was the case. There was no evidence as to when the applicant received the document. The only evidence in relation to the cousin was that the applicant last saw him in 2011, not that he received the document from him then. The Court accepts that the finding does not reflect the evidence. The question then becomes whether or not the finding was critical to the outcome of the matter, or to put it another way, dispositive. It is to be noted that the Authority had a number of concerns about the authenticity of the document and then, its impact on whether or not the applicant was indeed an Afghan or Pakistani national. 27 Then when the primary judge addressed the second ground, he said (at [49] and [51] to [54]): Furthermore, as indicated above, even if the Authority made a mistake of fact as to when the applicant obtained the taskera from his cousin, unless it was dispositive, no jurisdictional error arises. … As outlined above, there was a multiplicity of facts that lead the Authority to come to the conclusion that the applicant was a Pakistani national and not an Afghan national, as claimed. These included that, the applicant told the delegate he had, "little contact with his family in Afghanistan following a land dispute between them." The Authority found, that it was implausible that the applicant would then be able to contact his cousin, and ask him to obtain a taskera. The claim that the document was obtained without the applicant providing any other evidence to prove his Afghan nationality, also weighed against the applicant. This was in contradiction to country information and again, the Authority noted that taskeras are printed on plain paper, with no security features and there are high rates of document fraud in Afghanistan. The Authority also made a number of findings including the fact that the applicant claimed to be undocumented in Pakistan, notwithstanding the fact he was able to own and run a business, without any sort of business or personal documentation. The Authority did not accept it as credible that the applicant had family in Pakistan, who did not work because they were undocumented and that they solely relied upon him for financial support. The Court is satisfied it was the cumulative weight of the Authority's findings, as to the credibility of the claims made by the applicant, that were dispositive of the matter. Even if the Court accepts the submission that the applicant only received his taskera in 2011, which it is submitted was not correct, the Court does not think that this would have been dispositive of the claims. 28 The primary judge then went on to say (at [55] to [57]): The Court is satisfied that even if the finding by the Authority was incorrect, it did not ultimately make a difference to the applicant's claims. It did not make a difference to the overall outcome. The Authority made numerous findings of fact that were against the applicant, the finding of fact in relation to the taskera did not result in a poisoning of the well and it was not a situation whereby it was critical in terms of being a turn on the road, for the ultimate outcome. Credibility, of course, which the applicant made numerous findings for, are a matter for the Authority which is best placed to judge, not this Court. 29 Accordingly, the appellant's application was dismissed.