ELD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-03-30|Before: Nicholas J

The application to file an amended notice of appeal is refused.
The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 Before the Court is an appeal brought by the appellant against a judgment of the Federal Circuit Court of Australia ("FCC") dismissing the appellant's application for judicial review of a decision of the Immigration Assessment Authority ("the Authority") made on 31 July 2018 affirming the decision of a Delegate of the first respondent ("the Minister") not to grant the appellant a protection visa. 2 The appellant is a citizen of Pakistan who travelled to Australia by boat. He arrived on 25 April 2013 and participated in an entry interview on 6 June 2013 ("the entry interview"). A copy of the interview record was in evidence before the primary judge and this Court. The appellant lodged an application for a Safe Haven Enterprise visa ("SHEV") on 17 March 2017 which included a written statement of his claims. In written correspondence the Department indicated that some parts of the application were incomplete however it nevertheless accepted the application on 27 March 2017. The appellant was invited to attend an interview with an officer of the Department which took place on 26 September 2017 ("the SHEV interview"). 3 On 21 November 2017 the Department notified the appellant that his visa application had been refused by the Delegate. On 24 November 2017 it referred the decision to the Authority for fast track review. On 31 July 2018 the Authority notified the appellant's migration agent that the Authority had decided to affirm the Delegate's decision not to grant the appellant a protection visa. 4 The appellant then applied to the FCC for judicial review of the Authority's decision. 5 The primary judge rejected the appellant's sole ground of review. In this appeal the appellant contends that the primary judge was wrong to reject that ground. The appellant also seeks leave to rely on an additional ground of appeal which, he accepts, raises a matter that was not argued before the primary judge.

The Authority's Decision 6 The Authority accepted that the appellant is a Pashtun Sunni Muslim citizen of Pakistan from Lilownai. 7 The appellant claimed to fear harm at the hands of the Pakistan Taliban or the Tehreek-e-Taliban ("the Taliban") on the basis of his political opposition and interactions with the Taliban. The appellant's claims include that: (a) In July 2010, he was stopped at a roadblock by members of the Taliban who had killed a man whose body they had hung in a tree. The Taliban stopped the appellant's car and forced him to look at the body in the tree. He looked at the body briefly before pushing the Taliban member's hand away, angering the Taliban. They later forced the appellant into one of their cars and took him to a cave. (b) The appellant was held in the cave for 25 days and given very little (or no) food. The Taliban tried to recruit him to work for them. They threatened him and tried to give him a bomb in a bag to take and detonate in a market but he refused. The appellant was tortured and hung by his feet and his feet were left bloody. (c) A Taliban guard recognised another man who had also been captured and was being held in the cave. The guard fired his weapon at the lock on the gate allowing the other man and the appellant to escape. The appellant then walked through the mountains for at least 14 hours (and up to 24 hours) before reaching home. 8 The Authority was not satisfied that the appellant was stopped, kidnapped, detained, threatened or harmed by the Taliban, or that he was pressured to join or otherwise support the Taliban. It did not accept that he had escaped from the Taliban's custody, or was pursued by them for any reason or that his mother or any of his other relatives were visited by the Taliban while they were looking for him. The Authority found: (a) that there were a number of variations in the appellant's accounts of his alleged kidnapping and related events. The appellant indicated in his written statement that he was not given any food whilst detained by the Taliban but in his SHEV interview said that he had been given some food. In his entry interview, he stated that he was not harmed whilst detained but in his SHEV interview he stated that he was forced to stand on ice and suspended by his feet. The appellant also indicated in his statement that it took him 14 hours to walk to Lilownai after escaping but in his SHEV interview twice stated that he walked for 24 hours; (b) that the appellant's description of his response to the Taliban's efforts to persuade him to join or help them also varied. During his SHEV interview the appellant indicated that while other men held in the cave had agreed to join the Taliban, he and two other men refused to join. However, in the same interview the appellant, said that he could not say directly to the Taliban that he "would not follow them"; (c) it difficult to understand why a member of the Taliban would express anger towards the appellant by placing the appellant in a car, tying his hands and covering his eyes, driving for several hours to a cave and detaining him there, rather than some more straightforward manner such as assaulting the appellant; (d) it difficult to accept that the Taliban would have such a strong interest in recruiting the appellant that they would detain him for 25 days, lecture him, punish him for not joining them by hanging him by his feet, and depriving him of adequate food and sleep. The Authority also found it difficult to accept that the Taliban would try to force the appellant, an untrained and apparently unwilling candidate, to take a bag containing a bomb to a market; (e) that the manner of the appellant's escape was "somewhat implausible" and that it was surprising that a guard who wished to release another prisoner would do so by shooting the lock on the door and risk attracting the attention of other Taliban members nearby; and (f) it difficult to accept that the appellant would have been able to walk for between 14 and 24 hours following the treatment he claimed to have experienced while held by the Taliban. 9 The Authority referred to various matters which it considered affected the appellant's credibility. The Authority said at [37]: The applicant's claims regarding his manner of escape are also somewhat implausible. It is surprising that a Taliban guard who wished to release a friend would do so by shooting the lock off the door, thereby also releasing the applicant, and risking attracting the attention of any other Taliban nearby. As a guard, it is not clear why he could not have unlocked the door. It is also difficult to accept that the applicant, after 25 days of detention and the mistreatment described, would have been able to walk either 14 hours or 24 hours to Lilownai, particularly given his claim that his feet were bloodied, notwithstanding the applicant's claim that a villager gave him some clothes and shoes to wear. The applicant's representative submits that the applicant worked as a builder and farmer in a mountainous area. He undertook hard physical work and did a lot walking in mountainous areas. He submits that given these characteristics, and as the applicant was running for his life, it is plausible that he could have walked for 14 hours. I note that the applicant stated twice during the SHEV interview that he walked for 24 hours following his escape. Whether the applicant's claim is that he walked for 14 or 24 hours after his escape, I find it difficult to accept that he would have been able to walk for 14 hours following the treatment he claims to have experienced while detained, regardless of his physical condition prior to his detention. 10 The Authority also said at [38]: Considered as a whole, I found the applicant's account of these events unconvincing. This, and the variation in his statements discussed, leads me to doubt the applicant's claim that he was kidnapped and held by the Taliban, and his claims about related events. The applicant raised a number of issues that may have affected his ability to put forward his claims for protection. In his SHEV application, he indicated that he had suffered trauma as a result of his claimed kidnap by the Taliban and requested that his specific vulnerabilities and circumstances be taken into account when assessing his evidence. The applicant did not elaborate on, or otherwise refer to, his experience of trauma his SHEV application, during the SHEV interview, or in the submission to the IAA. There is no medical evidence before me relating to the applicant's mental health. On the evidence before me, I am not satisfied that the applicant's ability to put forward his claims for protection has been affected by any experience of trauma. 11 After considering the appellant's evidence and the country information before it, the Authority was not satisfied that he was stopped, kidnapped, detained, threatened or harmed by the Taliban. Whilst the Authority was willing to accept that the appellant's brother was killed by a militant group in 2008 and that his father's cousin was killed by the Taliban, it did not accept that the appellant was of any adverse interest to the Taliban or any militant group for any reason. The Authority was not satisfied that the appellant would be perceived to be opposed to the Taliban or any militant group on the basis of his private political opposition.

The Primary Judge's Decision 12 At the hearing before the primary judge the appellant pressed only one ground of review. That ground was as follows: The decision of the Immigration Assessment Authority (Authority), in falsifying the Applicant's claims to capture by and escape from the Pakistani Taliban or Tehreek-e-Taliban (TTP) because, in the premises, he could not have walked for 14 hours, or up to 24 hours, was vitiated for illogicality or want of an intelligible justification constituting a constructive failure to exercise jurisdiction, or was otherwise vitiated by a denial of procedural fairness by not making a finding at all on that integer of the Applicant's claim. 13 The primary judge rejected this ground on the basis that it did not accurately reflect the Authority's reasoning. The submission made to his Honour by counsel then appearing for the appellant was that the Authority did not believe the appellant's claims because it found that the appellant could not have walked for 14 hours. The appellant submitted to the primary judge that a finding of fact in those terms had no foundation in the evidence and that it was neither impossible nor improbable that the appellant could have walked for that length of time for the purpose of making his escape. 14 The difficulty with the appellant's submission to the primary judge was that the Authority did not make a finding of fact to the effect the appellant attributed to it. As the primary judge said at [27]-[28]: [27] There may possibly be some merit to the arguments advanced by the Applicant if it were that the IAA had actually made a finding that the Applicant "could not have walked for 14 hours". But the IAA made no such finding. If one carefully looks at what the IAA has said at paragraph 37 of its reasons, it has said that the claims regarding the manner of escape are somewhat implausible. The IAA described the manner of escape. The IAA then said "It is also difficult to accept..." And later on in the paragraph also says "I find it difficult to accept that the he would have been able to walk for 14 hours" [28] There has been no finding that the Applicant "could not have walked for 14 hours". It must be remembered that it is for the Applicant to satisfy the IAA of the claims that the Applicant makes. What the IAA is saying is the Applicant has not met that burden. It is this "difficulty to accept", the claims of the Applicant, that have allowed the finding in paragraph 48. It is not any specific positive findings on any particular matters that have formed the basis for the findings in paragraph 48. (emphasis in original) 15 His Honour had earlier referred to the relevant paragraphs in the Authority's reasons for decision including [37] which is set out above.

The Appeal 16 The appellant challenges the primary judge's reasoning and says that his Honour erred in not finding that the Authority's decision was affected by legal unreasonableness in finding that the appellant could not have walked for 14 hours after his escape. 17 Counsel for the appellant in his submissions focused on the Authority's reasons at [32] and [37], contending that those paragraphs of the Authority's reasons contained a finding that the appellant could not have walked for 14 hours following the treatment he claimed to have received at the hands of the Taliban. Counsel then submitted that this finding was unreasonable essentially because it was not based on any probative evidence. This is the same argument that was presented to the primary judge and rejected by his Honour. 18 Ground 1A of the appellant's draft amended notice of appeal states: The judge erred by not finding that the Immigration Assessment Authority (Authority), in falsifying the Applicant's claims to capture by and escape from the Pakistani Taliban or Tehreek-e-Taliban (TTP) because, in the premises, he could not have walked for 14 hours, or up to 24 hours, was vitiated for illogicality or want of an intelligible justification constituting a constructive failure to exercise jurisdiction, or was otherwise vitiated by a denial of procedural fairness by not making a finding at all on that integer of the Applicant's claim. 19 The first limb of ground of 1A is directed to the argument to which I have just referred. However, ground 1A also refers to "a denial of procedural fairness". During oral argument counsel for the appellant accepted that no contention along those lines was raised before the primary judge and that, in those circumstances, he did not press the second limb of ground 1A. 20 The appellant also seeks leave of the Court to amend his existing notice of appeal to raise a new ground 2A which is as follows: The primary judge erred by failing to find that the Authority engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information. Particulars a. The Authority concluded that the appellant had given "a number of variations" in his account of his kidnap and related events (at [31]). b. The Authority also concluded that the "variation in his statements discussed", along with the appellant's account of these events which the Authority found "unconvincing", led it to doubt the appellant's claim that he was kidnapped and held by the Taliban (at [38]). c. The Authority was not satisfied in consideration of its concerns relating to the appellant's evidence about these events that the appellant was stopped, kidnapped, detained, threatened or harmed by the Taliban (at [48]). d. The appellant's account of his kidnap given in his Statement of Protection Claims included the statements at [22]: "A man from the Taliban pulled me out of the car by my shirt and told me to look up at the body in the tree. I didn't want to look at the body. But the man grabbed my head and forced me to look up. The sun was in my eyes and I only looked for about a minute, then I pushed the man's hand off me. This made him angry. They forced me into one of their cars." e. The appellant gave oral evidence at the SHEV interview that (Transcript of SHEV interview, page 16): "And the body was hanging on the tree, so I was, it was said to me that to look to watch that body, because I couldn't do that I was nauseous to see the blood and the dead body and they took me and threw me in the car. They hold my hair and the sun was too hot, and forced to see the sun then was my eyes like nothing working and they took me in the car… f. The Authority, at [32], stated that the appellant, in recounting this incident at the SHEV interview, "did not refer to a member of the Taliban touching him". g. The Authority's finding that the appellant did not refer to a member of the Taliban touching him at the SHEV interview was incorrect because the appellant had stated at that interview that the Taliban member was holding his hair (Transcript of SHEV interview, page 16). h. There was no variation in this aspect of the appellant's evidence; it was not open to the Authority to so conclude; and the Court below erred by concluding otherwise (at [11]-[14]). 21 As previously stated, the appellant did not challenge the Authority's decision before the primary judge on any of the grounds referred to in ground 2A. 22 For the purpose of understanding the arguments advanced by the appellant in support of ground 2A it is necessary to refer to some additional parts of the Authority's reasons and relevant parts of the appellant's evidence. The Authority at [31]-[34] referred to a number of matters which it said led it to question the appellants' veracity. Relevantly, the Authority said at [32]: He indicated in his SHEV application that it took him 14 hours to walk home to Lilownai after escaping, whereas during the SHEV interview he twice said that he walked for 24 hours. He indicated in his SHEV application that he was taken by the Taliban after he angered a member of the Taliban by pushing his hand away as he forced the applicant to look at a body. When asked to describe this incident during the SHEV interview, the applicant said the Taliban threw him in their car when he refused, or was unable, to look at the body due the nausea he felt and or the sun in his eyes. He did not refer to a member of the Taliban touching him. 23 Counsel for the appellant sought to contrast what appears in the final line of [32] with the account given by the appellant in his written statement and the SHEV interview at p 16. In his written statement the appellant said at [22]: The Taliban had hung his body up in a tree. The Taliban were stopping all the cars and pulling all the people out. A man from the Taliban pulled me out of the car by my shirt and told me to look up at the body in the tree. I didn't want to look at the body. But the man grabbed my head and forced me to look up. The sun was in my eyes and I only looked for about a minute, then I pushed the man's hand off me. This made him angry. They forced me into one of their cars. I couldn't see out of the car because the windows were covered. I didn't know where they took me at the time but now I know it was a cave in the mountains. My eyes were covered in the car and my hands were tied. When my eyes were uncovered, I was in a dark space with a couple of other people who also had their hands tied. One of them was crying and had been beaten by the TTP. 24 In the transcript of the SHEV interview the appellant is recorded as saying at p 16: Officer: I like you to tell me the lead up to that kidnapping, what happened when you were kidnapped, and just sort of the events surrounding what was happening at that time, and what you experienced in your own words. Applicant: I came with my mother to the hospital and we were on the way to return home, and army officer was killed, de-capitated by Taliban. Officer: Sorry an army off Interpreter: Officer Officer: Army officer Interpreter: Was decapitated, cut with head of the officer by Taliban. Applicant: And the body was hanging on the tree, so I was, it was said to me that to look to watch that body, because I couldn't do that I was nauseous to see the blood and the dead body and they took me and threw me in the car. They hold my hair and the sun was too hot, and forced to see the sun then was my eyes was like nothing working and they took me in the car, and then I don't know they took me to the place it was mountainous, they kept me with other people too, there were other people too, just they asking, couple of days I was there, when I wake up so I was looking around, I was between feeding among this people. … 25 Later in the SHEV interview the appellant was asked who was being stopped at the Taliban check point. The appellant said at p 17: Officer: And so, why did they target you then, did they? Applicant: Because they, you know Taliban kill the people like very badly and then they ask people to look at this, if you cannot do, help us and you can against us so you see this one, so we can do this with you and everyone, this is your government, this is your government person and we cannot do everything they can say And the big problem with me when I see the blood and specially the human being blood so wasn't watching him. I told him I am in trouble because when I see the blood so I will be here and my mum with me because she is too old. They said no, this and that and they pulled me from the behind and threw me to the road and then took me to car and I don't know that took me to mountain. As it they even for no reason forcing people. Killing people, no reason. … 26 Counsel for the appellant submitted that the inconsistency identified between the statements made at the SHEV interview and in the written statement referred to in the last few sentences of [32] of the Authority's reasons was not an inconsistency at all. He submitted that in the written statement of the SHEV application, the appellant stated that a member of the Taliban had been angered when his hand was pushed away by the appellant. He further submitted that this was consistent with the statements made by the appellant during the SHEV interview when the appellant stated "[t]hey hold my hair and the sun was too hot, and forced to see the sun then was my eyes was like nothing working and they took me in the car … and they pulled me from the behind and threw me to the road and then took me to car". Counsel for the appellant therefore submitted that the Authority was wrong to find at [32] that the appellant "did not refer to a member of the Taliban touching him" in the SHEV interview.

Unreasonableness 27 Both of the grounds relied upon by the appellant assert jurisdictional error on the part of the Authority as a result of it having reached a decision that was illogical, irrational or lacking any intelligible justification. 28 In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the High Court was concerned with the question whether the Refugee Review Tribunal had committed jurisdictional error by making findings, or engaging in a process of reasoning, that was illogical or irrational when concluding that it was not satisfied that the applicant met the criteria for a protection visa. 29 Crennan and Bell JJ said in SZMDS at [129]-[131]: [129] … accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and Applicant S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", "arbitrary", "capricious" or "Wednesbury unreasonable"? [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. (footnotes omitted) 30 Crennan and Bell JJ also said at [135]: [135] 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims … See also Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [22] and Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21], [49], [71], [86] and [97]. 31 Subsequent authorities have confirmed that in order for a jurisdictional error to be established based on an illogical or irrational finding, the finding must be "extreme" in the sense that it is not enough that the correctness of the relevant finding is something about which reasonable minds may differ: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60] and BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 ("BJO18") at [60]. 32 It is well established that adverse credibility findings made by the Authority may involve jurisdictional error if they lack any logical, rational or intelligible justification: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] and BJO18 at [71].

Ground 1A 33 In my opinion the primary judge's decision was correct for the reasons given by his Honour. Contrary to the appellant's submission, the Authority did not make a finding that the appellant could not have walked for 14 hours. Rather, the Authority expressed strong reservations about the plausibility of the appellant's claim to have walked for 14 hours in circumstances where he also claimed to have been mistreated when he was held by the Taliban. So much is clear from the final sentence at [37] of the Authority's reasons. This was one of a number of matters that featured in the appellant's account of his escape which the Authority considered to be "somewhat implausible". The Authority made this clear in the first sentence of [37] of its reasons. 34 It is therefore not necessary to consider whether it would have been open to the Authority, acting reasonably and logically, to have found that the appellant could not have walked for 14 hours given the mistreatment he claimed to have experienced. Counsel for the Minister submitted that there would have been nothing inherently illogical in such a finding. It is not necessary to rule on that submission. In my view it was open to the Authority acting reasonably to find that the appellant's claim to have walked 14 hours was implausible and it was also open to the Authority to reject it (in the sense of not accept it) on that basis.

Ground 2A 35 The merits of a point not raised below is a matter of importance in determining whether leave to raise it on appeal should be granted. In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 the Full Court said at [48]: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 36 In my opinion it was open to the Authority to find that there was an inconsistency between the account given by the appellant in the relevant parts of his written statement and his SHEV interview. In his written statement the appellant claimed that after he had been pulled from the car in which he was travelling, a man grabbed his head and forced him to look up at the body in the tree, and that the man became angry when the appellant then pushed the man's hand away after which he was forced into one of the Taliban's cars before being driven away. At the SHEV interview the appellant spoke (at p 16 lines 29-35) of being thrown into the car after which his hair was held. 37 The appellant's submission focussed heavily on the final sentence in [32] of the Authority's reasons. The question is whether that line of the Authority's reasons is to be understood as referring to the lack of any reference to touching of the kind discussed in the written statement whereby a member of the Taliban held the appellant's head and forced him to look at the body after which the appellant pushed the Taliban member's hand away. The appellant's submissions about the final sentence of the Authority's reasons at [32] takes the sentence out of context. Read with the previous sentence, it is apparent that the Authority had turned its mind to the record of interview and was carefully reviewing the evidence before it. At the interview the appellant did not refer to the claims he made in his written statement about being physically forced to look at the body or pushing the hand of the Taliban member away. A reading of the relevant section of the transcript of interview as a whole, supports the Authority's interpretation of the two accounts given by the appellant. The Authority's interpretation of what it considered to be inconsistent accounts of his treatment by the Taliban was open to it and was not the result of illogical or irrational reasoning. 38 In my view ground 2A lacks merit. I propose to refuse the appellant leave to file his proposed amended notice of appeal on that basis.

Disposition 39 The appeal will be dismissed. The appellant must pay the first respondent's costs of the appeal. 40 Orders accordingly. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.

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