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[2017] FCA 692
Federal Court of Australia
2017-06-20
Davies J
Original judgment source is linked above.
DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("FCC") dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent not to grant the appellant a protection (class XA) visa.
background 2 The appellant is a citizen of Pakistan and his home town is in Parachinar in the Kurram Agency of Pakistan. He arrived in Australia as an unauthorised maritime arrival in August 2012 and applied for a protection visa in December 2012. The appellant claimed to have a well-founded fear of persecution in his home location in Kurram Agency for a reason under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("Convention") because of his religion as a Shia Muslim and his Bangash Tribe membership and Pashtun ethnicity, and because he is Shia Bangash he may be imputed with anti-Taliban/pro-west political opinions and opposition of the Taliban. The appellant recounted a history of conflict between Shia Muslims and the Taliban in his home area of Upper Kurram Agency since 2007 and of the general violence occurring in that area. He also recounted the effect this had upon him directly, in particular the difficulties it caused him in travelling to and from a college he attended in Islamabad due to roads being blocked by the Taliban. The appellant also claimed that when studying in Islamabad, he was assaulted and harassed by Sunni students who stayed at the same hostel as him. The appellant's migration agent made submissions on his behalf to the delegate of the first respondent claiming that the appellant's status as a Shia Pashtun made it unreasonable for him to relocate to another area of Pakistan. 3 The delegate accepted that the appellant faced a real chance of harm as a Shia Muslim in the Kurram Agency but did not accept that, as a Bangash Shia, the appellant had a profile that would make him a specific target of the Taliban or other anti-Shia militant groups. The delegate also accepted that the appellant may have been discriminated against by Sunni students during his time as a student in Islamabad but did not accept that this treatment constituted serious harm and persecution nor significant harm for the purposes of complementary protection. The delegate concluded that the appellant did not face a real chance of serious harm or a real risk of significant harm in Islamabad where he had previously lived and found it would be reasonable for the appellant to relocate to Islamabad or to other parts of Punjab where there have been no attacks on Shias and are safe. Accordingly the delegate refused the appellant's visa application. 4 The appellant applied to the Tribunal for review of the delegate's decision. The appellant's submissions to the Tribunal are summarised at [22] and [23] of the Tribunal's decision as follows: The [appellant's] agent provided a submission to the Tribunal. It was submitted that the [appellant] could not return to his home location in Kurram Agency, that he would be targeted because of his religion and tribal allegiance, an imputed anti-Taliban political opinion, and PSGs comprising of Shia Bangash tribe members, Shias from Parachinar and educated Shia Muslims. It was submitted that there was an increase in violence against Shia; that the Taliban was active; that they had assaulted schools; that the government could not provide protection, and he could not relocate. The submission included examples of violence in cities of Pakistan, noting that Islamabad had not experienced sectarian violence to the same level of other cities, but was not immune from such attacks. It was submitted that Shias from Parachinar were being targeted. It was submitted that the [appellant] does not have any social supports outside of Parachinar, and the [appellant] would be compelled to go home to visit his family. It was also submitted that the Tribunal substitute a decision [sic] to grant the [appellant] a protection visa, given the issue of Regulation 2.08F, which had the effect of making the application to be a temporary protection visa application. A post hearing submission was received by the Tribunal. It discussed the prospect of violence in the region, including referencing an article discussing the impact Operation Zarb-e-Azb would have, that there was a possibility that it would cause there to be further violence in the future. It was submitted that there was more than a remote chance that the [appellant] would be harmed on return to Parachinar. 5 The Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa. The Tribunal first dealt with the claims that the appellant made to have suffered harm in the past in Islamabad. The Tribunal rejected those claims, largely on credibility grounds. The Tribunal also rejected the appellant's claim that his education placed him at risk of persecutory harm. The Tribunal then considered the situation in the appellant's home area of Parachinar. The Tribunal accepted that the appellant's home area had been a violent region of Pakistan in particular between April 2007 and February 2012 when there were a series of significant violent acts between Shias, Sunnis and the Taliban. The Tribunal's consideration of country information led it to conclude that the risk of harm and violence in Parachinar, in general, had significantly reduced since the appellant had left Parachinar in 2012. As part of its considerations, the Tribunal considered the impact of Operation Zarb-e-Azb and concluded that there did not appear to be any repercussions on the civilian community in the Federally Administered Tribal Areas, given that the levels of violence has fallen in these areas with the lowest levels of civilian deaths since 2007. The Tribunal did accept that in December 2015 there was a bomb explosion in Parachinar which killed at least 25 people and over 70 people were injured but did not accept that this most recent attack was indicative of increasing tensions in Parachinar. The Tribunal reasoned at [76]: The Tribunal accepts that on 13 December 2015 at least 25 people were killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar. The Tribunal has considered whether this most recent attack was indicative of the increasing tensions in Parachinar and whether this incident would lead to further sectarian violence. The Tribunal considers, however, that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre. The Tribunal considers that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous, the Tribunal considers that it would be premature to conclude that this attack - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture of surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considered that it would be mere speculation to find on the evidence before me that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before the Tribunal concerning the security situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the [appellant] will be killed or injured in such terrorist attacks if he returns to his home in Parachinar. 6 At [80]-[82] the Tribunal concluded as follows: Since the military action, there has not been an increase in the violence in the region. Indeed, as reported above, there is a notable decline in violence apart from isolated incidents, such as December 2015. A discussed, the Tribunal considers this incident anomalous in the improving situation of this region of Pakistan. Given that this improvement in the security situation in the [appellant's] home region has been ongoing for an extended period, the Tribunal considers that there are grounds to determine that the prospect that the situation in the [appellant's] home region will remain peaceful, now and in the reasonably foreseeable future, is quite high. The Tribunal considers on the country information it has read, including that submitted by the [appellant's] agent, and the country information included above, that the situation in the Parachinar region has improved to the extent that the chance or risk of the [appellant] being harmed can only be considered to be remote or speculative. The Tribunal does not accept that that [sic] [appellant] will be harmed on return to Parachinar for these reasons. 7 The Tribunal concluded that there was not a real chance or real risk of the appellant facing serious or significant harm due to his personal characteristics or as a result of the general security situation.
THE FCC DECISION 8 The appellant sought judicial review of the Tribunal's decision on the grounds that: (1) the decision of the Tribunal was affected by an error of law; and (2) he was denied procedural fairness. The appellant represented himself before the FCC. 9 The FCC reasons record that the appellant's submission supporting the first ground was, in essence, that the Tribunal failed to consider country information which shows that serious violence exists in Parachinar in the Kurram Agency and failed to consider the appellant's particular circumstances in concluding that the assault on him in Islamabad did not constitute serious harm, namely that he was a young boy who would be scared to report the harm and his evidence that the roads at the time were blocked so he could not leave Islamabad. The appellant supported his submission with references to country information regarding violence in Pakistan, both generalised and targeted against Shias who have the same personal characteristics as the appellant, which was not before the Tribunal. The FCC reasons record that the FCC explained to the appellant that the function of the Court was not to consider his circumstances and whether he deserves to be granted a visa, but whether the Tribunal made a legal mistake in reaching its decision. 10 The FCC reasons record that the appellant's submission supporting the second ground was that the delegate had considered that the appellant would suffer harm in his home region but it was reasonable to expect him to relocate to Islamabad whereas the Tribunal did not accept that the appellant did face a real chance of serious harm or a real risk of significant harm in his home region. The FCC understood the ground of review as an allegation that the Tribunal had failed to comply with its obligations under s 425 of the Migration Act 1958 (Cth). The FCC rejected both grounds. 11 On ground 1, the FCC went through the Tribunal's reasons and concluded that "it is evident from this reasoning of the Tribunal that, in fact, it gave very careful consideration to the country information, both past and recent, about the circumstances in the [appellant's] home region, and gave consideration to the [appellant's] personal circumstances and claims in the context of this country information". At [28]-[30], the FCC stated: The Tribunal commenced by noting the [appellant's] claim that he would be harmed in his home region of Pakistan because of his being a Shia Muslim, a Bangash tribe member, a Shia from Pakistan, having an imputed political opinion against the Taliban arising from his background and membership of various particular social groups arising from his background (at [45]). The Tribunal then turned to consider more recent country information (at [48]-[72]). The Tribunal considered a 2015 DFAT report, which was referred to by the [appellant's] agent and updated reports of DFAT in January 2016. It considered particular incidents of violence in Parachinar in December 2015. It referred to other country information, for example, from the FATA Research Centre and UNHCR assessments. On the basis of this recent country information, the Tribunal found, for example, having regard to the January 2016 DFAT report, that the risk of being harmed in the region of Parachinar had reduced since 2012 (at [48]). Further, at [59] of the decision record, the Tribunal notes that it put to the [appellant] country information regarding Parachinar and the Kurram Agency, which showed that the violence had significantly reduced. The Tribunal put to the [appellant] that because of the significant decrease in violence in his home area, it was considering whether the prospect of the [appellant] being harmed was one that was remote or insubstantial. The Tribunal noted that the [appellant] said in response that he believed he would be harmed in this region. The Tribunal said (at [73]): As discussed above, the Tribunal does not accept that there is any particular personal circumstances of the [appellant's] that would mean that he would be singled out or targeted by the Taliban or any insurgent group… (court book references omitted). 12 The FCC also noted that the Tribunal did consider whether the December 2015 bomb attack changed the position. 13 The FCC concluded at [35]-[36]: It is well settled that the appraisal of country information that the Tribunal relies on is a matter for the Tribunal, including the choice and the weight it gives to the country information. It is also clear from the Tribunal's detailed reasoning that it considered recent country information, including country information provided by the [appellant's] migration agent on his behalf. The Tribunal gave careful consideration to the [appellant's] claims in the context of this country information and I am satisfied that this consideration that the Tribunal engaged in placed it outside the circumstances which confronted the Full Court in Minister for Immigration and Border Protected [sic] v MZYTS [2013] FCAFC 114. Consequently, having considered the [appellant's] claims in the context of country information, and having made its ultimate findings about the risks of harm if the [appellant] was returned to Parachinar, the Court is satisfied that the Tribunal did not engage in a legal mistake or jurisdictional error. 14 The FCC noted that there was a further ground that arose out of the appellant's submissions about the failure of the Tribunal to consider the evidence, which was identified as "in the context of the overwhelming evidence before the Tribunal, the findings of the Tribunal regarding the harm that the [appellant] would face, if returned to Pakistan and his hometown in Parachinar, were unreasonable in a legal sense". The FCC dealt with this ground as follows at [38]-[39]: I asked the First Respondent to address this ground in the submissions. Counsel for the First Respondent did so and made submissions, which I agree with. Firstly, the relevant decision of the High Court is Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. The judgment in that case that is most commonly referred to in considering whether the fact finding of the Tribunal discloses legal unreasonableness is the judgment of Crennan v Bell JJ [sic] at [130] to [135], in which their Honours stated that the proper question in relation to a claim of legal unreasonableness was whether it was open to the Tribunal to make factual findings on the material before it. Counsel for the First Respondent submitted that the Tribunal's reasons indicated logicality and a process of reasoning that could not be said to be so illogical or irrational so as to constitute unreasonableness in a legal sense. I agree with this submission, having regard to the reasoning of the Tribunal that I set out earlier in relation to this claim. The Tribunal's consideration was detailed and, in my opinion, the factual findings it made on the material before it were open to it and, consequently, there is no jurisdictional error on this ground. 15 The FCC dealt with ground 2 as follows: In circumstances where issues are not raised by the [appellant] or his representative in submissions to the Tribunal, if the Tribunal is considering issues different to those raised in the delegate's decision which may be dispositive to its review, then the Tribunal is obliged to raise it with the [appellant] during the course of the hearing, or by an indication in a written invitation by the Tribunal either pre or post the Tribunal hearing. It is manifestly clear on the face of the Tribunal decision record that the Tribunal put the [appellant] on notice about an issue which may be dispositive to the review, namely, that, having regard to recent country information, the prospect of the [appellant] being harmed was remote or insubstantial. It is also to be noted that the post-hearing submissions made by the [appellant's] migration agent directly focused on the security situation in the Kurram Agency. In other words, I am satisfied that the issue of the harm that the [appellant] would experience if returned to Parachinar was drawn to the [appellant's] attention. He was given an opportunity to provide evidence and make submissions in relation to this matter and, in fact, this issue was directly addressed in his post-hearing submissions. I also note, for completeness, this being drawn to the Court's attention, that in the submissions of the [appellant's] migration agent to the Tribunal prior to the hearing, the migration agent addressed the issue of harm the [appellant] might suffer in the Kurram Agency. Thus it could be said that the [appellant], through his migration agent, was aware of this issue. Consequently, I find that the Tribunal complied with the obligations under s.425 of the Act and there is no other material before the Court that would satisfy the Court that the relevant statutory provisions in relation to procedural fairness were not complied with by the Tribunal. Therefore, I find that the claim of a ground of judicial review that the Tribunal denied the [appellant] procedural fairness does not give rise to jurisdictional error. (court book references omitted).
THE APPEAL 16 The appellant's notice of appeal contains two grounds: (1) Affected by error from FCC. (2) Procedural fairness denied. 17 The appellant filed written submissions which raised the following contentions: (a) the Tribunal failed to deal with his claim that violence would return to Parachinar once the then current military operation concluded, or failed properly to consider the competing country information regarding violence and instability in his home region in Pakistan; (b) the Tribunal ignored or misunderstood the appellant's claim of the discriminatory treatment of Shias by the Pakistani Government which selectively failed to protect Shias from generalised violence; (c) in respect of his complementary protection claim, the Tribunal failed to deal with the appellant's claim that he feared harm from generalised violence independently of his Convention based claims; (d) the Tribunal failed to consider the appellant's personal circumstances when assessing the appellant's claims about the events in Islamabad. 18 The appellant relied on the Full Court decision in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 ("Minister for Immigration and Border Protection v MZYTS") and the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 ("Minister for Immigration and Citizenship v SZRKT") in support of his contention that the Tribunal's task had miscarried because, in assessing and making findings of fact about the circumstances in the appellant's home region at the time the appellant is likely to be returned there, the Tribunal failed to consider the most recent country information available. 19 In Minister for Immigration and Border Protection v MZYTS, the Full Court explained at [33] that the assessment of a claimed fear of persecution on return of the applicant to her or his country of nationality involves "a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past". In relation to the predictive exercise as to the risks an applicant may face if returned to her or his country of nationality, the Full Court said: The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573. … lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded. The determination of whether there is an objective basis for the person's fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person's country of nationality at the time the person is likely to be returned there. ... In that case the visa applicant had identified cyclical and increasing risks to actual or perceived members and supporters (as he claimed to be) of the Movement for Democratic Change, the leading opposition political party in Zimbabwe. Those risks were said to have increased because of speculation about, and preparations for, possible elections in 2011 and the conduct of constitutional reform meetings, as well as an accompanying generalised increase in political violence, said to be a feature of election cycles in Zimbabwe. The Tribunal relied on outdated information to find that the visa applicant's fears of politically-motivated violence were not well-founded, without reference to the more current information put to it by the visa applicant's representatives which indicated increasing political violence in Zimbabwe. The question was whether the Tribunal had sufficiently engaged with the claim to discharge its statutory task. The Full Court found that the Tribunal's reasons disclosed "neither consciousness nor consideration of these central aspects of the first respondent's claim". On that basis the Full Court found that the Tribunal had committed jurisdictional error, having failed to discharge its statutory duty. 20 In Minister for Immigration and Citizenship v SZRKT, Robertson J held that a failure to consider evidence can constitute a failure to consider a relevant matter and amount to jurisdictional error where the material is central to the assessment of the visa applicant's claim. As the Full Court in Minister for Immigration and Border Protection v MZYTS explained at [68]: In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power". In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored. In this regard, the appellant sought to tender current 2017 country information and some other country information that had not been placed before the Tribunal. This material was said by the appellant to show that there have been major incidents of terrorism related violence in Pakistan in 2017 and violence is on the increase in his home region. There can be no error, however, in the Tribunal failing to consider country information that post-dates the Tribunal's decision and in this appeal that new material cannot be taken into account. It was explained to the appellant that this Court cannot engage in merits review of the Tribunal decision and re-exercise the power to consider whether the appellant should, or should not, be granted a protection visa. 21 The Tribunal's reasons do not disclose jurisdictional error of the kind identified in Minister for Immigration and Border Protection v MZYTS and Minister for Immigration and Citizenship v SZRKT. The Tribunal considered, evaluated and assessed in a real and active way on the basis of the most recent country information then available to it what the situation would be for the appellant in 2015 or thereafter if he returned to his home region in Parachinar and whether or not the security situation in the appellant's home region had changed, or was changing, or likely to change. The evaluation included consideration of the December 2015 terrorist attack in Parachinar. It was open to the Tribunal on the country information available to it to conclude that violence in the region had significantly reduced since the appellant left and the security situation has been relatively stable since the 2013 truce and that the prospect that the situation in the appellant's home region will remain peaceful in the reasonably foreseeable future is quite high. 22 The Tribunal's reasons also disclose that it gave consideration to the particular circumstances of the appellant in considering the risks that the appellant may face if he returns to his home region. It is evident that the Tribunal did not disregard the appellant's claim to fear harm from generalised violence. The process of the Tribunal's reasoning dealt with the appellant's personal circumstances that gave rise to his claim to fear generalised violence, accepting that the appellant's home area had been a violent region of Pakistan in particular between April 2007 and February 2012, but not accepting as credible the appellant's claims about the incidents he experienced when studying in Islamabad, leading to the finding that the appellant was not a real chance of serious harm or real risk significant harm from generalised violence in the region. It follows that I also do not accept the appellant's contention that the Tribunal failed to deal with an integer of his claim, namely that the Pakistani Government selectively failed to protect Shia from generalised violence. Nor do I accept that the Tribunal failed to deal with the appellant's claim that he feared harm from generalised violence that was independent of his Convention based claims. The Tribunal's reasons disclose that the Tribunal dealt with such a claim. 23 The appellant's submission that the Tribunal fell into error in assessing the appellant's claims about events in Islamabad is also not accepted. The Tribunal accepted that the incidents in Islamabad claimed by the appellant may have happened but the Tribunal considered that the appellant had embellished this aspect of his claim. That led the Tribunal to doubt whether the appellant had a subjective fear of harm at the relevant time and to conclude that the harm suffered by the appellant did not rise to the level of serious or significant harm. Whilst findings of fact about credibility or findings that stem from credibility are not immune from judicial review (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]-[38]) there was, in this case, a logical and probative basis for the Tribunal's credit finding. Further, it is clear that the Tribunal was aware of the appellant's personal attributes at the time (being young and from Parachinar) and tested the appellant's version of events during the course of the hearing. One of the appellant's arguments was that the Tribunal should have, but did not, have regard to his mental and physical state at the time of the claimed incidents in assessing the truthfulness of his claim to fear harm at the time. Whilst it does not appear that the Tribunal did take those factors into account in its assessment of the truthfulness of the appellant's claims, nothing turns on this. The finding that the appellant does not face a real chance of serious harm or a real risk of significant harm arising from the incidents in Islamabad does not impugn the Tribunal's finding that the appellant does not face a real chance of serious harm or a real risk of significant harm if he is to return to his home area of Parachinar. 24 Neither the Tribunal's reasons nor the FCC's reasons disclose legal error with respect to the Tribunal's finding that the appellant did not have a well-founded fear of persecution at the relevant time or in the reasonably foreseeable future and is not a person in respect of whom Australia has protection obligations under the complementary protection criterion. 25 Accordingly, the appeal should be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.
AJP16
Minister for Immigration and Border Protection
(2013) 230 FCR 431
(2013) 212 FCR 99
(1997) 191 CLR 559
(1989) 169 CLR 379