DAB16 v Minister for Home Affairs

THE DFAT THEMATIC REPORT 22 As Counsel for the appellant acknowledged, it is well-established that, subject to the principles of legal unreasonableness, it is for the Authority to determine which country information to take into account and the weight to be attributed to it: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [81] (Young J; Gyles and Stone JJ agreeing); Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] (Gleeson CJ); SZUEP v Minister for Immigration and Border Protection (2017) 160 ALD 35 at [27] (Perram, Robertson and Wigney JJ). 23 As the Full Court said in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (at [11]): The appellants' submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as 'country information'. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants' case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that. 24 To establish jurisdictional error it is not sufficient to express emphatic disagreement with the merits of a factual conclusion: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30] (French CJ). An administrative decision-maker may, however, commit jurisdictional error in determining a question of fact if, for example, there is no evidence bearing on the question before the decision-maker. As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 367): If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of 'proportionality' (cf. the C.C.S.U. Case). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision. 25 Proceeding from that passage in Bond that the appellant in this case submits that there was jurisdictional error affecting the Authority's decision because the decision was not based on material that was probative in the relevant sense. 26 In the present case, the findings of the Authority were entirely consistent with information contained in the DFAT Thematic Report. 27 The submission that the Report was not "probative" was articulated in different ways. It was firstly suggested that it was not open to the Authority to rely on the Report because the sources of the information contained in it were not identified. Standing unqualified, that statement is simply incorrect. Paragraph [1.4] of the Report sets out the sources upon which it is based in the following terms: This report is based on DFAT's on-the-ground knowledge and discussions with Government, non-government, community and international sources in Pakistan, including in Islamabad, Lahore and Peshawar. It takes into account relevant and credible open source reports, including the World Bank, United States Central Intelligence Agency, United Nations Development Program, United Nations High Commissioner for Refugees, United Nations Office for the Coordination of Humanitarian Affairs, United Nations Office on Drugs and Crime, Centre for Research and Security Studies, South Asian Terrorism Portal, International Crisis Group, Pakistan Institute for Peace studies, FATA Research Centre, Human Rights Commission Pakistan, Pakistani Government departments, non-government organisations and media organisations. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source. 28 Counsel for the appellant did not go so far as to submit that this recitation of sources was incorrect. The submission, as I understand it, was that the identity of the particular person from whom the information at [2.9] of the Report was sourced was unknown. 29 The suggestion that it was not open for the Authority to rely on the Report at all because of a lack of more specific identification of that source is wholly unmeritorious. To the extent that the particular individual or organisation from whom the specific information was sourced is not specifically identified, that is a matter that may affect the weight that the Authority may attribute to it. It cannot, on any reasonable view, deprive the Report of the character of probative material. 30 It is then said that the DFAT Thematic Report is not factually correct and, therefore, not probative. On this aspect of the appeal, Counsel for the appellant asserted, with some degree of repetition, that there were no Hazaras living in Lahore. Counsel submissions were to the effect that reliance by the Authority on an incorrect report would, in his words, "100 percent mean" that the Authority had committed an error of law, not an error of fact. That submission must also be soundly rejected. 31 The question of whether there is presently a population of people of Hazara ethnicity residing in Lahore is a question of fact, and incontrovertibly so. The appellant cannot succeed in demonstrating jurisdictional error merely by demonstrating that the Authority relied on country information that misstated a fact. When prompted by the Court to articulate with more precision how such an error could constitute jurisdictional error, Counsel returned again and again to his assertion that the DFAT Thematic Report was incorrect. The submissions amounted to no more than an emphatic disagreement with the Authority's factual conclusion. 32 It was then submitted that it was open to the appellant on judicial review (and so in this Court) to adduce evidence to show that a fact upon which the Authority's decision was based did not exist. Reliance was placed on the decision of the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (Black CJ, Spender and Gummow JJ). That case turned on the proper construction of s 5(1)(h) and s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The principles discussed in that case do not apply to the exercise of the jurisdiction conferred on the FCCA under s 476(1) of the Act. 33 It has not been demonstrated that it was not open to the Authority to rely upon the information contained in the Report and to prefer that information over the information that had been proffered by the appellant on the same subject matter. 34 The primary judge did not err in rejecting those grounds of review founded on the argument that the DFAT Thematic Report was incorrect or otherwise not probative. The grounds of appeal asserting otherwise cannot succeed.

EVIDENTIARY BURDEN 35 As has been said, at the hearing of the appeal, as in the proceedings below, Counsel for the appellant invited the Court to make a factual finding to the effect that no people of Hazara ethnicity resided in Lahore. Counsel acknowledged that he was in no position to adduce evidence to prove that factual proposition, including because it was difficult to prove a negative. Counsel submitted that the lack of identification of the source of the information contained in the DFAT Thematic Report was itself circumstantial evidence that the Report was incorrect. The lack of named sources was sufficient to shift an evidentiary burden to the first respondent to prove that the Report was correct, so it was submitted. 36 Determination of the question of whether the DFAT Thematic Report was correct or not formed no part of the task of the primary judge on the application for judicial review, nor does determination of that question form any part of the task of this Court in the exercise of its appellate jurisdiction. As has been said, the appellant could not succeed on the application for judicial review by adducing evidence, being evidence not before the Authority, to contradict the information contained in the Report. 37 It was, of course, open to the appellant to put evidence of that kind before the delegate. Further, in light of the delegate's reasons in relation to the security situation in Lahore, it was clearly open to the appellant to submit new information to the Authority, including information that contradicted the proposition that the appellant's well-founded fear of persecution applied to all parts of Pakistan (including Lahore) and that it was otherwise unreasonable for him to relocate there. The appellant's representatives adduced no such evidence before the Authority. Counsel's attempts to adduce evidence on this appeal and in the proceedings below amounted to no more than an attempt to have this Court interfere with the decision of the Authority on the factual merits. 38 The question on the application for judicial review was whether the Authority committed jurisdictional error on the basis of the material before it. Such an error cannot be established by showing that a different decision-maker might arrive at a different conclusion on a critical fact on the basis of additional or different material. The first respondent could not bear any burden (whether described as an evidentiary burden or otherwise) in relation to a factual question that did not legitimately arise for consideration in the proceedings below. 39 It was then submitted that the first respondent ought to have been compelled to produce evidence identifying the sources of information contained in the DFAT Thematic Report because that information was exclusively in the possession of the Executive Government of which the first respondent formed a part. Even if the factual question of whether persons of Hazara ethnicity resided in Lahore had legitimately arisen in the proceedings below, an evidentiary burden would not arise merely because of the exclusive possession of evidentiary material in the hands of one party and not another. If the factual question arose for determination, it would have been open to the appellant, by his representatives, to invoke compulsive processes of the FCCA for its production so that the appellant could adduce the material as part of his own case. That was not done. In any event, as I have said, jurisdictional error could not be established merely by succeeding in a de novo contest in respect of a question previously determined by the Authority on the material before it. 40 This aspect of the appeal also included a complaint that the primary judge had not adequately dealt with the evidentiary implications of material that was adduced by the appellant on his application for judicial review. The material is annexed to an affidavit sworn by the appellant's Counsel on 23 November 2018. Of that material, the primary judge said: 32. Ground two really proceeds on the basis that the information in the DFAT reports was incorrect. The main part of the DFAT reports that were incorrect, according to the Applicant, are the ones that talk about there being a population of Hazaras in Lahore. The Applicant says that there are no Hazaras in Lahore, and the DFAT report is wrong. 33. To this end, he has sought to adduce other evidence that is contained in an affidavit of the counsel of the Applicant filed in this court on 23 November 2018. That information was not before the IAA, and a lot of it does postdate the decision of the IAA. 34. Notwithstanding that, the Applicant says that such evidence is admissible for this purpose and that is to show that the factual basis upon which the DFAT reports are based do not exist; therefore, in relying upon the factual basis of the DFAT report to say that there are Hazaras, or a Hazara community in Lahore, was a jurisdictional error because such is not correct. However, the Applicant has produced neither in that material, nor anywhere else, anything that would show that the DFAT report was incorrect. 35. The DFAT reports, he claims, do not show any source material so that the source material could be looked at. That is a matter for the report writers. They are official documents, and it is then for the IAA to decide whether or not to accept those matters. For this ground to have any chance of success, the Applicant really needed to show me conclusive proof that there were no Hazaras in Lahore. He has annexed a UK report and also another report, amongst other things, simply to tell me that these reports are also wrong, and they are wrong because they do not have any source material that is able to be verified. 36. The first report is a report titled 'A tough life for the displaced Hazaras in twin cities' written on 9 March 2014 and the other is a UK Home Office report titled 'Country Policy and Information Note, Pakistan: Hazaras' dated November 2016. In those reports, there is talk of the Hazara population. In the UK Home Office report, at 5.2.3, the report quotes an official at the Pak Institute for Peace Studies stating that: … Many families migrated to different parts of the country, especially Karachi, which already has a sizeable Hazara population, estimated 25,000 families live there. They are concentrated in areas of Hussain Hazara Goth and Mughal Hazara Goth of the city. Those who afford the expensive living of Islamabad also relocated in the capital, but their numbers are small. Reportedly, [a] few families have also migrated to Lahore and [are] living among the Shia population. 37. The Applicant says that even though he has produced this report, that that this [sic] information is wrong because it does not quote any other source of information. 38. The first report from 2014 said this at paragraph 5.2.2: …Of the 600,000 Hazara community members, 100,000 have left their hometown [Quetta]… Around 80,000 people migrated from Quetta to Islamabad, Rawalpindi, Lahore and Karachi. 39. The Applicant says that that report, as well, is wrong. I asked the Applicant to show me any report that he says is actually right. He claims that none of these reports could be considered as right because none of them have the methodology he says that are needed to make the statements that they have. However, it is a claim that he makes, and it is for him to prove it. 41 There is no appealable error disclosed in that reasoning. To the extent that Counsel sought to rely on the UK Home Office report in argument before me, his submissions are rejected for the same reasons articulated by the primary judge. The annexures to his affidavit cannot establish any factual proposition on which the outcome of this appeal might legitimately turn.

THE APPELLANT'S ETHNICITY 42 The final category of grounds of appeal concern the appellant's ethnicity as a Hazara and an allegation that the Authority either failed to have regard at all to his Hazara ethnicity or failed to afford his ethnicity sufficient weight. No oral submissions were advanced specifically in relation to that category of appeal over and above what has already been the subject of my reasons thus far. 43 It cannot reasonably be argued that the Authority did not have regard to the appellant's Hazara ethnicity. A substantial part of the reasons of the Authority were devoted to that question, including on the topic of whether, by reason of his Hazara ethnicity, the appellant might be exposed to a risk of harm even if he were to locate to Lahore. Questions of weight were questions exclusively for the Authority and it has not been shown that the attribution of weight to any issue arising before it is affected by legal unreasonableness. 44 Finally, there is one class of grounds of appeal in which complaint is made about the use that the primary judge put the word "community" and his interpretation of the word "community" as it appeared in the Report. I have some difficulty identifying where in the reasons for judgment his Honour is said to have erred in that respect. It is unclear to me that the primary judge has made any finding as to the meaning of the word "community", nor has his Honour made any finding of fact as to whether or not there is a Hazara population living in Lahore. It formed no part of his task to make any such finding.

CONCLUSION 45 The grounds of appeal are unmeritorious and the appeal should accordingly be dismissed. 46 For the purposes of s 486F(2) of the Act I find that the migration litigation constituted by this appeal had no reasonable prospects of success. 47 The parties will be heard as to costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.