AHX15 v Minister for Home Affairs

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent of and incidental to the appeal to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The appellant is a national of Pakistan. He was born in 1981 in Parachinar, in the Upper Kurram Agency in the Federally Administered Tribal Areas of Pakistan (FATA). He is of Pashtun ethnicity, a member of the Bangash Tribe and a Shia Muslim. 2 The appellant arrived at Christmas Island on 22 July 2012 as an unauthorised maritime arrival. A delegate of the Minister refused his application for a Protection visa, and that decision was affirmed on review by the former Refugee Review Tribunal (the RRT). 3 The appellant's application for judicial review of the RRT decision in the Federal Circuit Court (the FCC) failed: AHX15 v Minister for Immigration & Anor [2105] FCCA 1312, but his appeal against that decision succeeded: AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183. 4 The application for review was then remitted for consideration to the Administrative Appeals Tribunal (the Tribunal) which had assumed the functions of the RRT. On 13 January 2017, the Tribunal affirmed the delegate's decision. On 17 January 2019, the FCC dismissed the appellant's application for judicial review of the Tribunal's decision: AHX15 v Minister for Immigration & Anor [2019] FCCA 87. 5 The appellant now appeals against the second FCC judgment. 6 The appellant's application for a Protection visa indicated that he sought protection because of the violent situation in Parachinar resulting from the targeting of Shia Pashtuns by members of the Taliban. He referred to incidents of violence, to restrictions on his freedom of travel by reason of activities of the Taliban, and to an incident in July 2010 when he had stepped on a landmine. The landmine had caused injuries resulting in the amputation of his right foot. The appellant told the Tribunal that landmines had been scattered around his home, as he believed, as part of a targeting of him by the Taliban. 7 The appellant told the Tribunal that he fears that, if returned to Pakistan, he will remain a target of the Taliban because he is a Bangash Pashtun and a Shia Muslim, because of his imputed political opinions, because of his extended presence in Australia, and because the Taliban believe he is a supporter of Western forces, or the West more generally. 8 These claims were rejected by the Tribunal member, who gave lengthy and detailed reasons for the decision. The Tribunal did not regard the appellant as a witness of truth. Of relevance to this appeal, the Tribunal rejected the appellant's claim that the landmine injury had been caused by a targeted attack on him by the Taliban. 9 In the FCC, the appellant, who was represented by counsel, advanced a single ground in support of his application for judicial review, namely: That the Tribunal failed to consider a claim or evidence, in the lawfully required sense, being that the applicant is owed complementary protection because he may be exposed to harm by reason of landmines. 10 As is apparent, this ground was quite confined and did not raise any issue concerning the Tribunal's rejection of significant aspects of the appellant's claims. I mention that the ground just quoted was advanced in the FCC hearing in lieu of that contained in the filed application for judicial review. 11 The submissions which counsel for the appellant made in the FCC were summarised by the FCC Judge at [15] and [16] of his reasons. It is sufficient to refer to the following aspects of that summary: a) Whilst the Tribunal accepted that the applicant had been injured after he stepped on a landmine in July 2010, it went on to find that it did not accept that this was any indication that he would face a real risk of similar random indiscriminate harm because there had been a changed security situation in Parachinar; b) That reasoning was difficult to follow. It is a notorious fact that landmines are placed in the ground during periods of conflict and that not all of them will be exploded during the course of the conflict itself. As a result, many landmines may remain active in the ground after the cessation of hostilities. For that reason, it follows that the changed security situation in the region could not affect the risks associated with injury or death from landmines; c) As a result, it can be inferred that the Tribunal must have misunderstood the claim or evidence or failed to consider the applicant's claim in the lawfully required sense. The reasoning of the Tribunal demonstrates that something went wrong in the process of its reasoning in its response to the evidence. It is not possible to indicate precisely the way in which that occurred. It was unrealistic to suggest that a Tribunal member would not have appreciated that landmines remain in the ground after hostilities cease. As a result, it follows that the Tribunal failed to exercise the jurisdiction that it embarked upon, and its decision is accordingly affected by jurisdictional error. 12 The summarised submissions focused on a passage in [78] of the Tribunal's reasons, namely: … Although the Tribunal accepts the applicant was injured when he stepped on a land mine in July 2010, it does not accept that this indicates the applicant faces a real risk of such similar random indiscriminate incidents, particularly given the change in the security situation in Parachinar since this incident occurred many years ago, as discussed above. … 13 Counsel for the appellant in the FCC submitted that the improved security situation in Pakistan to which reference was made in the country information before the Tribunal, and to which the Tribunal referred in the quoted passage, was a reduction in the risk presented by human actors, namely, what people were or were not doing. He submitted that this information did not address the risk posed by landmines laid during the period of conflict, which continue to present a risk until detonated or removed. Although they were originally laid by human action, the landmines were a form of static or latent risk. 14 On this basis, counsel submitted in the FCC that the Tribunal had misunderstood or misconstrued an aspect of the appellant's claim, resulting in it not addressing that claim. The submission was that this meant that the Tribunal had thereby committed jurisdictional error in the sense explained in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55]. 15 The FCC Judge referred to several passages in NABE, including: [55] [T]here is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on '... a substantial, clearly articulated argument relying upon established facts' that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …. . Although not expressly so identified in [Dranichnikov], the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. … … [62] Whatever the scope of the Tribunal's obligations it is not required to consider criteria for an application never made. … [63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be 'subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected' - Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]): 'If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.' … (Citations omitted) 16 The FCC Judge accepted that the principles stated in NABE required that the claims made by the appellant be identified. This meant that, on the application for judicial review, he should consider whether the claim that the appellant was at risk in the future of significant harm from landmines in Pakistan had been articulated before the Tribunal or was one which had clearly arisen on the materials before it. 17 In addressing those issues, the FCC Judge noted that the Tribunal had accepted that the appellant had sustained a significant injury in July 2010 when he stepped on the landmine near his home, resulting in the amputation of his right foot. The FCC Judge also accepted that the appellant had relied on this injury to illustrate the danger which he had faced in mid-2010 in Pakistan. 18 The FCC Judge noted at [33], that there did not appear to have been any claim articulated by the appellant in the Tribunal as to the prevalence of landmines in his region of Pakistan, or in Pakistan more generally, either at the time of, or subsequent to, his injury, and accordingly, of a real, ongoing risk faced by the appellant because of landmines. The Judge noted, that the appellant had instead claimed that his landmine injury was the result of an attack targeted at him rather than it indicating that he was at risk of indiscriminate harm from random unexploded landmines. 19 His Honour noted that there had been no claim in the Tribunal to the effect that landmines were prevalent in the appellant's home region, and that the appellant had not, in a number of documents, claimed that he was at risk of indiscriminate harm from landmines, these being: (i) the appellant's entry interview; (ii) his statement of claims in support of his application for the Protection visa (which had been reproduced in its entirety in the Decision Record of the Tribunal); (iii) the written submissions prepared by the appellant's agent for consideration by the Minister's delegate; (iv) the country information submitted by the appellant's agent prior to the RRT hearing; (v) the written submissions made by the appellant's agent after the hearing in the RRT and before the RRT made its decision; (vi) the written submissions made by the appellant's agent to the Tribunal for its consideration of the review; and (vii) in the written submissions made by the appellant's agent after the hearing in the Tribunal and before it made its decision. 20 Counsel for the appellant did not contend that the FCC Judge had been in error in any respect in this view of the material. 21 The FCC Judge also noted that the Tribunal's decision record did not suggest that the appellant had made any claim that he was at ongoing risk of injury from landmines in Pakistan. 22 Having regard to those matters, the FCC Judge was not satisfied that the Tribunal had misunderstood or misconstrued a claim advanced by the appellant. His Honour also said, at [34], that he was not satisfied that it had been demonstrated that the Tribunal misunderstood or misconstrued a claim clearly raised on the evidence. His Honour noted in this respect that the country information did not appear to deal with a latent ongoing threat at large posed by unexploded or undetected landmines in Pakistan. 23 The FCC Judge then concluded: [35] In the absence of such information there was no basis for the Tribunal to conclude that there was a significant risk of harm to the applicant in the foreseeable future for that reason. Indeed, the reference to whether the applicant faced a real risk of a similar random indiscriminate incident, such as stepping on a landmine, appears to have been mentioned for the first time by the Tribunal when dealing with the question of the risk of generalised violence in the context of considering the claim to complementary protection. "78. While the Tribunal accepts that there may continue to be some sectarian, militant and generalised violence in the FATA generally, based upon all the country information before it, and for the reasons above, the Tribunal does not accept that the applicant faces a real risk of significant harm because of sectarian, militant or generalised violence including in his home area in Upper Kurram. Although the Tribunal accepts the applicant was injured when he stepped on a land mine in July 2010, it does not accept that this indicates the applicant faces a real risk of such similar random indiscriminate incident, particularly given the change in the security situation in Parachinar since this incident occurred many years ago, as discussed above. …" (Citations omitted) 24 The FCC Judge considered that the finding by the Tribunal that the security situation in Parachinar had changed and so was less volatile than it had been in mid-2010 was open to it. 25 On that basis the FCC Judge considered that the applicant had not demonstrated jurisdictional error. 26 The appellant's notice of appeal to this Court contains a single ground: 1. The primary judge erred by dismissing ground 1 of the application for review of the Tribunal's decision. 27 This ground is to be understood as referring to the ground which the appellant had pursued in the FCC, being the ground to which I referred earlier and not the ground stated in the filed application for judicial review in the FCC. The latter ground had been abandoned by the appellant. 28 On the hearing of the appeal, counsel for the appellant repeated in substance the submissions which he had made in the FCC. Those submissions did not seek to identify any particular error in the approach or in the reasons of the FCC Judge but rather contended that the Judge should have reached a different conclusion than he did. 29 The submissions focused again on [78] of the Tribunal's reasons. Counsel submitted that, in expressing the conclusion which it did, the Tribunal must have either misunderstood the nature of landmines, misunderstood the country information, reasoned illogically or irrationally, or otherwise committed some error affecting the result even though that error is incapable of being identified. 30 In my view, there is no basis upon which the FCC or this Court could conclude that the Tribunal had misunderstood the nature of the landmines or had misunderstood the claim advanced by the appellant before it. 31 The Tribunal member identified in an appropriate manner the claims which the appellant made and summarised accurately the material concerning the landmine incident on which the appellant relied, there being no claim that landmines were generally prevalent or that there remained a risk of injury from unexploded and undetected landmines laid during an earlier period of conflict. It is hardly surprising that the Tribunal did not address such a claim. Further, the Tribunal member identified correctly that the appellant's claim with respect to landmines had not been that he had been the victim of indiscriminate violence in July 2010 but instead that he had been the victim of violence which was targeted against him. That particular claim was rejected by the Tribunal after a detailed assessment of the credibility of the appellant's evidence. 32 I note again that the appellant had not claimed in the Tribunal that he had a subjective fear relating specifically to risk of injury from indiscriminately placed landmines which remained undetected. Nor did he seek to establish that if he returned to Pakistan, he would be exposed to a real risk of suffering significant harm by reason of the existence of unexploded landmines. In that respect it is pertinent that the written submissions made on the appellant's behalf in support of his claim for complementary protection did not even refer to a risk of harm from landmines. 33 It may be accepted, of course, that the Tribunal was not confined to considering only the claims which the appellant advanced. It also had an obligation to consider any claim reasonably open on the materials before it. It may also be accepted that it would not have been inappropriate for the Tribunal to have adopted a narrow view of the materials before it. The position stated by Allsop J, as his Honour then was, in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] indicates the position: [An unarticulated claim] … must … either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material so as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 34 In this case, it cannot reasonably be held that there was present in the material before the Tribunal an articulated claim to which the Tribunal failed to have regard. 35 The appellant's submission that the Tribunal should be taken to have misunderstood the evidence cannot be accepted. The consideration of this submission overlaps with the consideration of the submission concerning irrationality and unreasonableness. The Tribunal reasoned that the fact that the appellant had been injured by stepping on a landmine in July 2010 did not indicate that the appellant faced a real risk of similarly random caused injuries in the future. That reasoning cannot be regarded as illogical. 36 The Tribunal went on to say that this was particularly so given the change in the security situation in Parachinar since the incident many years ago. The appellant's submission was that a change in the security situation would not alter the continuing risk from the presence of undetected and unexploded landmines, and that it was illogical or irrational for the Tribunal to have reasoned otherwise. 37 I do not accept that submission. Had there been evidence of a continuing conflict in which landmines were being deployed, it may have been easier for the Tribunal to accept that there was some continuation of the risk which had existed many years previously. The very fact that the security situation has changed over the intervening years is a matter capable, logically and rationally, of bearing upon the extent of the risk. 38 With particular reference to the submission concerning unreasonableness and irrationality in the Tribunal member's reasons, it was pertinent for the Tribunal to have regard to the absence of evidence of the prevalence of landmines in Pakistan, the absence of evidence of continuing conflict, and to the period of time which has elapsed since the period of conflict in which landmines were deployed. That period of time was also relevant because it has allowed the opportunity for landmines to be detected and cleared. Accordingly, I reject the submission that the passage in [78] of the Tribunal's decision reflects irrationality or unreasonableness. 39 Finally, the submission that the Tribunal's decision is affected by jurisdictional error for some reason which is unable to be identified cannot be upheld. As counsel for the Minister submitted, any such error must be subsumed in the rubric of legal unreasonableness or irrationality. Jurisdictional error is not established by reference to "the vibe". 40 For these reasons the appeal must be dismissed. 41 The formal orders of the Court are that the appeal is dismissed and the appellant is to pay the costs of the first respondent of and incidental to the appeal, to be taxed in default of agreement. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.