AUE16 v Minister for Immigration and Border Protection

second ground 7 I will deal with the appellant's second ground of appeal first. That ground is in the following terms: The decision of the Tribunal was affected by jurisdictional error in that the Tribunal applied the incorrect test by referring to past harm rather than fear of future harm, and/or the Tribunal failed to give proper consideration to the applicant's claim to fear harm from increased violence in the context of coming elections. 8 There are two separate challenges raised by this ground. The first ("first challenge") is that the Tribunal failed to give proper consideration to the appellant's claim to fear harm from increased violence in Pakistan in the context of forthcoming elections, because the Tribunal applied the wrong test. That challenge was elaborated upon in the submissions made by the appellant who submitted that the test for whether a person has a well-founded fear of persecution is forward-looking and that, in its assessment of the claim in question, the Tribunal refused to take a forward-looking assessment because it was of the view (as stated at [60] of its decision) that "it would be mere speculation" to conclude that there was a real chance that the appellant would be persecuted if returned to Pakistan. The appellant contended that in assessing whether there was a real chance of future persecution of the appellant should he be returned to Pakistan, the Tribunal was entitled to and should have speculated as to future events and in particular as to whether there would, by reason of forthcoming elections, be a significant deterioration in the security situation in Pakistan so as to expose the appellant to a real risk of persecution by reason of his membership of and involvement with the ANP. 9 The essence of the Minister's response to the first challenge is that the Tribunal did take a forward-looking approach to the assessment made as to the appellant's claimed fear of harm by reason of his association with the ANP. For the reasons I give below this aspect of the second ground should be rejected. 10 The second challenge raised by the second ground ("second challenge") is that the Tribunal failed to consider the appellant's claim to fear harm from increased violence in the context of forthcoming elections in Pakistan. The nature of the claim asserted to have been made by the appellant was expanded upon in oral submissions and is apparent from the material before the Tribunal to which I will refer. It was that the appellant had made a claim that as a consequence of his membership of and involvement in the activities of the ANP, he held a well-founded fear of being subjected to significant harm in the forthcoming elections to be held in his home region. The essence of the second challenge is that that claim was erroneously regarded by the Tribunal as not having been raised and for that reason was not meaningfully considered. 11 That before the Tribunal a claim was made by the appellant to the effect that, by reason of his involvement with the ANP, he feared that if returned to Pakistan he may be exposed to serious harm in the context of forthcoming elections in Pakistan, was not really put in contest. The Minister did not concede the point but the essence of the Minister's response to the second challenge was that the Tribunal did consider the claim in question. 12 For the reasons which follow, I have come to the view that such a claim was made and that the Tribunal failed to give the claim made by the appellant meaningful consideration. 13 It is helpful to refer to the material before the Tribunal in order to demonstrate that the claim relied upon was made and to understand how it arose in the proceeding before the Tribunal. 14 By a statutory declaration, the appellant gave evidence before the Tribunal including that: his father was a longstanding member of the ANP and had been involved in campaigning for local ANP members during elections including by putting up posters and door knocking; his elder brother was also involved and that because of the involvement of his father and elder brother the appellant joined the ANP when he was at college, involving himself in the student wing of the ANP by collecting donations; he and his family were very strong supporters of the ANP; he had been frequently involved in and had been quite good at getting people to join and support the ANP; in the 2008 general elections in Pakistan he had assisted with some of the ANP's campaign including by accompanying ANP candidates around his village and in surrounding villages, and putting up posters and door knocking constituents to raise support for the ANP; when home from his seafaring work, and between January 2009 and September 2010 the appellant assisted the ANP with political events; and sometime after 2008 an ANP member of Parliament was killed whilst at a political event and that there was general fear that similar attacks might happen again. 15 In a second statutory declaration the appellant stated that his family had helped the ANP and supported the party whenever the family could. He had naturally become more active as he got older and that his duties for the ANP were very general, putting up posters and talking to people, door knocking and trying to push for people to support the ANP. He said in relation to door knocking that, though most people were polite, it was "still [a] very dangerous thing to do particularly when I was doing it in 2009 and 2010 because the Taliban and its supporters were very much against the ANP". 16 Much of that evidence is referred to in the reasons of the Tribunal. The Tribunal also noted that ANP membership cards for the appellant, his father and brother had been provided to it, as well as a letter from the ANP's member of Parliament for the electorate in the appellant's home region stating that the appellant and members of his family including his father and his brother, had been supporters of the ANP for a long time and that the appellant had left Pakistan due to threats to his life from the Taliban. 17 The appellant also gave evidence about his involvement with the ANP at the hearing before the Tribunal. Beyond confirming much of the evidence to which I have already referred, the appellant told the Tribunal that: an organiser for the ANP in his village had been killed by the Taliban; everyone in his village knew that he was actively involved in the ANP; if you were a member of both the ANP and the Village Defence Committee (as he had been) "they [which appears to be a reference to the Taliban] would kill you"; "when you were a member of the ANP you were gone"; on 13 September 2015 an individual (a local councillor whom he named) had been shot dead; and there was a danger to his life and that "they would kill him". 18 The Tribunal regarded the evidence directly given by the appellant as reliable. At [53] the Tribunal said that the appellant's evidence had been broadly consistent and that to the appellant's credit he had not sought to embellish his claims. The Tribunal accepted that the appellant and all of his family including his brothers are supporters of the ANP, that the appellant had joined the ANP whilst he was at college and that he was involved in ANP activities such as putting up posters and talking to people in his village and encouraging them to join and vote for the ANP. The Tribunal accepted that everybody in the appellant's village knew that he was actively involved in the ANP. 19 Other material relating to the appellant's claimed fear of harm as a result of his involvement with the ANP was provided in submissions made to the Tribunal by the appellant's legal representative. Various media reports and country information reports were referred to which included accounts of injury to or the killing of various persons associated with the ANP; and reports of continuing targeting of people opposed to the Taliban in the appellant's home region. 20 At [26] of the Tribunal's reasons, the Tribunal recorded that the appellant's representatives had submitted "that there was significant risks of harm to ANP supporters in [the appellant's home region], particularly during election times" (emphasis added). The Tribunal noted that that submission had relied heavily on an "ABC Correspondents Report" transcript dated from May 2013 which stated that during the campaign for the May 2013 general election a senior ANP leader had been forced to spend a large amount of time in the relative safety of Islamabad and outside her electorate near the appellant's home region. The Tribunal also noted the submission made by the appellant's representatives that referred to a bomb blast which had killed a local ANP councillor and that one of the reports in relation to that incident had stated that "party members claimed that over 800 ANP workers had been killed in recent years by suspected militants in various parts of Pakistan". 21 It is important to appreciate that during the hearing before the Tribunal, the Tribunal referred the appellant to a DFAT Report on Pakistan dated 15 January 2016 ("2016 DFAT Report"). As the Tribunal records at [39] of its reasons, the Tribunal put to the appellant that in the 2016 DFAT Report, DFAT had assessed that ANP members were subject to a low and declining level of militant violence in [the appellant's home region]". The Tribunal provided the appellant's legal representative a post-hearing opportunity to address the 2016 DFAT Report which was taken up by a submission dated 22 February 2016 ("post-hearing submission"). 22 There are three representations made in the submissions provided to the Tribunal by the appellant's representative which are also important to note. The first is referred to at [20] above and relied upon the ABC Correspondents Report ("first representation"). It was referred to by the Tribunal at [26] of its reasons and dealt with at [58]. The second ("second representation") was made in the post-hearing submission and is referred to at [50] of the Tribunal's reasons and dealt with in the deliberative section of the Tribunal's reasons at [59]. Each of those two representations raised the increased risk of harm to the appellant during election periods. The third representation ("third representation") was also raised in the post-hearing submission. It is referred to at [51] of the Tribunal's reasons and dealt with at [59]. By that representation the appellant submitted that the future security situation in Pakistan was unpredictable and subject to ongoing change. 23 As I have stated, both the first and second representations emphasised the increased risk of harm during election periods. The second representation addressed that topic in the context of the appellant's response to the 2016 DFAT report. That representation noted that the 2016 DFAT report concluded that violence against ANP supporters had decreased but pointed out that the report was dealing with a nine month non-election period in 2015 (January to October) and that it was reasonable to expect that violence may increase during the forthcoming elections. Relatively, the submission said this: We also note that the risk of politically motivated violence (including from militant groups as well as other sources as rival supporters etc) and unrest would naturally follow national and local political cycles. The last national election was held in 2013, which may explain the purported decrease in militant attacks in 2015, however it would be reasonable to expect that this violence may increase leading up to the next national elections in 2018 and provincial elections prior to then. 24 Each of the first and second representations may be seen as having been made in support of the appellant's claim that as an ANP activist and in the context of forthcoming elections in the appellant's home, the appellant feared significant harm. That is the claim that the appellant asserts he made, it seems to me that it was made and, as earlier stated, the Minister did not really put in contest that such a claim was made. 25 It is necessary then to assess whether a claim in those terms was considered by the Tribunal. In order to do that I will turn to the deliberative section of the Tribunal's reasons in which each of the first two representations were addressed. The first representation was dealt with at [58] as follows [emphasis added]: [The appellant's] representatives submitted that there were significant risks of harm to ANP supporters in the [appellant's home region], particularly during election times, referring to an ABC Correspondents Report transcript dating from May 2013 in relation to a senior ANP leader and woman, Bushra Gohar, who said that she had had to spend large amounts of time in the relative safety of Islamabad and outside her electorate in the Swabi district of Khyber Pakhtunkhwa during the campaign for the May 2013 general election. However [the appellant] does not claim that he ever experienced any problems campaigning for the ANP or that he ever felt at risk engaging in the sort of low-level campaigning activities in his village in which I accept he was involved. 26 What I have called the second representation was addressed at [59] of the Tribunal's reasons as follows (emphasis added): In their submission dated 22 February 2016 [the appellant's] representatives argued that DFAT's advice that violence by the TTP against ANP members was decreasing, with only two militant attacks on ANP members between January and October 2015, was in conflict with information to which they had referred in their previous submission and also with DFAT travel advice suggesting that travellers should avoid demonstrations or violent protests in Pakistan. They submitted that violence might increase at the time of the next national elections in 2018 and at provincial elections prior to that. However once again this is not [the appellant's] claim: he does not claim that he ever encountered violence in the context of election campaigning or violent demonstrations or protests nor that he fears that he will encounter such violence if he returns to Pakistan now or in the reasonably foreseeable future. 27 It can be seen that the representations made in support of the appellant's claimed fear of being harmed during election periods were, in each case, rejected on the basis that the representations made were inconsistent with what the appellant had claimed. In relation to the first contention the Tribunal stated at [58] that the appellant "does not claim that he ever experienced any problems campaigning for the ANP or that he ever felt at risk engaging" in campaigning activities in his village. In relation to the second representation, the Tribunal at [59] said that the appellant "does not claim that he ever encountered violence in the context of election campaigning or violent demonstrations or protests nor that he fears that he will encounter such violence if he returns to Pakistan now or in the reasonably foreseeable future". 28 Whilst it is true that the appellant did not allege that he had in the past experienced violence whilst campaigning for the ANP, the Tribunal was wrong to conclude at [58] that the appellant did not claim "he ever felt at risk". As stated above at [15], the appellant told the Tribunal that he regarded the door knocking campaigning work that he did was a "very dangerous thing to do". He also told the Tribunal that he feared being killed. That error of itself may not suffice to demonstrate jurisdictional error. What is more troubling is the Tribunal's statement at [59] that the appellant does not claim that "he fears that he will encounter [violence in the context of election campaigning or violent demonstrations] if he returns to Pakistan now or the foreseeable future". 29 That claim was made by the appellant. The failure of the Tribunal to recognise that such a claim was made is a very strong indicator against the Minister's contention that the claim was considered and appropriately dealt with by the Tribunal. 30 The Minister accepted that the Tribunal proceeded on the basis (as is revealed at [61] of the Tribunal's reasons) that the appellant would continue his political involvement with the ANP if he were returned to Pakistan. The Minister argued that the claim of increased risk to the appellant as an ANP activist in forthcoming elections was addressed at [60] of the Tribunal's reasons. The Minister contended that in that paragraph, the Tribunal weighed up the appellant's submission that there may be cyclical increases in violence tied to election periods and determined that it preferred the DFAT's assessment about the level of violence as recorded in the 2016 DFAT Report. 31 Relevantly, at paragraph [60] the Tribunal said this: In their submission dated 22 February 2016 [the appellant's] representatives submitted that the security situation in Pakistan was unpredictable and subject to ongoing change and they submitted that in light of this uncertainly the Tribunal should assess the risk to [the appellant] on the basis that any assessment which it made might be wrong. However I consider that it would be mere speculation to conclude on the evidence before me that there is a real chance that there will be such a significant deterioration in the security situation in Pakistan as to expose [the appellant] to a greater risk of persecution if he returns to his home in the Swat Valley now or in the reasonably foreseeable future. As I put to [the appellant], the Australian Department of Foreign Affairs and Trade assesses that ANP members are subject to a low and declining level of militant violence in Khyber Pakhtunkhwa. 32 The first thing to notice about the reasoning in [60] is that the Tribunal appears to have moved from addressing what I have called the second representation and is there dealing with the third representation. The third representation was not specific to the asserted heightened risk of harm during election periods for ANP members or activists. It was a cautionary remark pointing to the asserted general instability and unpredictability of the security situation in Pakistan. A fair reading of the second sentence of [60] is that the Tribunal was here responding to the broad unspecific assertion of future instability and consequent risk of harm generally, which the Tribunal rejected as "mere speculation". 33 If it were not for the third sentence of [60], in which the Tribunal returns to the 2016 DFAT Report and to the Report's assessment of the risk to ANP members, the Minister's contention that the claim in question was properly considered at [60] would, I think, be hopeless. However, the third sentence demonstrates that the Tribunal maintained its acceptance of the assessment made in the 2016 DFAT Report "that ANP members are subject to a low and declining level of militant violence in Khyber Pakhtunkhwa". 34 It seems to me that the Minister must contend that an inference may be drawn from the third sentence of [60] that the Tribunal considered and dismissed the second representation that the risk assessment in the 2016 DFAT Report was confined to a non-election period and that "it would be reasonable to expect that this violence may increase leading up to the next national elections in 2018 and provincial elections prior to then". 35 In considering whether such an inference may be drawn, it is necessary to identify the nature of the statutory task to consider a claim required of the Tribunal. The Tribunal was obliged to give "meaningful consideration to a clearly articulated and substantial or significant representation on risk": Minister for Home Affairs v Omar [2019] FCAFC 188 at [39]. 36 As part of his claim that he feared that he may suffer significant harm as an ANP activist involved in forthcoming elections in his home region, the appellant made a clearly articulated, substantial or significant representation that an assessment of future risk of harm to him should not be restricted to risk assessments confined to a non-election period but needed to take into account the likely heightened risk to him as an ANP activist campaigning during the forthcoming election period. To properly perform its statutory task, the Tribunal was required to engage in "an active intellectual process" (Omar at [37]) with the second representation. 37 In my view, the content of [58], [59] and [60] of the Tribunal's reasons do not support an inference that that is what the Tribunal did. Whilst the second representation is referred to at [59], it is not engaged with by the Tribunal. Rather, the representation was side-stepped on the erroneous basis that no claim to fear future harm in the context of future elections was made by the appellant. Nor is there any meaningful consideration or intellectual engagement with the second representation apparent from the content of [60]. There is no express engagement with that representation and, at least the first two sentences of [60] suggest that the Tribunal was addressing not the second but the third representation. The preferred reading of the second sentence is that it is addressing the third representation. If the second sentence is addressing the second representation, a rejection of that representation on the basis that the representation was "mere speculation" would not be demonstrative of intellectual engagement with a representation which has apparent rationale and logical force. Why, it may be asked, in a region prone to politically motivated violence, is it not reasonable to expect that politically motivated violence will likely increase during election campaigns when political activity will likely be at its cyclical peak? 38 The Tribunal's failure to engage directly with the second representation when it was directly in issue at [59] of the Tribunal's reasons tells against the suggestion that the representation was implicitly grappled with at [60]. The Tribunal's acceptance of the assessment made by the 2016 DFAT Report in the third sentence of [60] is, I consider, a conclusion likely to have been reached in the absence of any meaningful consideration or intellectual engagement with the second representation made by the appellant. 39 For those reasons I hold that the appellant's claim to fear significant harm as an ANP member and activist in the context of forthcoming elections in his home region, was not meaningfully considered by the Tribunal and that, in that respect, the appellant has demonstrated jurisdictional error. 40 The primary judge was of the view that the Tribunal had dealt with the claims that were before it. His Honour stated at [75] that those claims were concerned with politically motivated violence and not with a claim that the appellant feared harm from increased violence in the context of upcoming elections. In my respectful view, his Honour erred in arriving at that conclusion. His Honour further erred in not identifying the jurisdictional error that I have held to be demonstrated. Accordingly, the appellant succeeds on this part of his appeal. 41 Turning then to the first challenge under the second ground, it follows from much of what I have already determined that the first challenge should be rejected. I do not consider that fairly read, the Tribunal's reasons reveal a failure by the Tribunal to appreciate that an evaluation of whether the appellant held a well-founded fear of harm required a forwarding looking assessment. On that aspect of the appeal, I respectfully agree with the observations made by the primary judge. Further, as indicated above, the second sentence in [60] of the Tribunal's reasons upon which the appellant principally relied in support of this contention, is to be properly understood as saying no more than that the third representation raises mere speculation. The more cogent view of what the Tribunal said in that second sentence is that whether, by reason of the general uncertainty or unpredictability of the security situation in Pakistan, there is a real chance that a significant deterioration in the security situation would be such as to expose the appellant to a greater risk of harm, was mere speculation. Understandably, it would be mere speculation because uncertainty and unpredictability in a security situation suggests that whilst the situation could deteriorate it could also improve and thus, whether the risk of harm to the appellant would be higher or lower, would be mere speculation.

ground one 42 This ground of appeal was put in the following terms: The decision of the Tribunal was affected by jurisdictional error in that the Tribunal misunderstood or constructively failed to consider an integer of the applicant's claim relating to the treatment of his brother and father. 43 The appellant's brother was, like the appellant himself, involved in anti-Taliban activity. He was said to have been shot at while performing night watch for the Village Defence Committee, and he identified to the authorities two Taliban members who were subsequently arrested. Fearing for his life, he fled to Italy and was there granted protection. 44 This was said to be relevant to the appellant's application for a SHEV because his brother's analogous circumstances justified the grant of a visa in Italy, and the appellant's connection to his brother was itself a basis for protection. 45 In its decision, the Tribunal noted the appellant's submission in respect of his brother and stated that the appellant's brother was "only" granted subsidiary protection without further discussing the matter. The appellant now argues this demonstrated a misunderstanding of his submission because it suggested that the Tribunal considered that his brother was granted something less than what the appellant sought. It was submitted that "subsidiary protection" is a term that can be and is used interchangeably with "complementary protection". 46 The FCCA dismissed the equivalent ground of review on the basis that no argument was put to the Tribunal that "subsidiary" and "complementary" protection were the same thing. The appellant submits before this Court that, in doing so, the FCCA misapprehended the inquisitorial nature of proceedings before a specialist migration tribunal and that it was not incumbent upon the appellant to make submissions apprehending possible misinterpretations of law by the Tribunal. 47 It was submitted that the Tribunal's misunderstanding of the appellant's submission in respect of his brother constituted jurisdictional error of the kind described in Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]-[84] (McHugh, Gummow and Hayne JJ). 48 Contrary to the approach taken by the primary judge, I would have placed little or no weight on the fact that the submissions made by the appellant misdescribed the nature of the protection obligations accorded by the Italian authorities to the appellant's brother. At the end of the day, the Tribunal must have understood that protection had been extended to the appellant's brother by Italy. Having come to an understanding that some form of protection was accorded to the brother, it was incumbent upon the Tribunal to come to a proper understanding of what "subsidiary protection" entailed if the Tribunal was of the view that the fact that the appellant's brother had been accorded "subsidiary protection" in Italy was relevant to the claims made by the appellant. It would have been erroneous for the Tribunal to have treated that fact as relevant without understanding what that fact entailed. 49 Neither the appellant nor the Minister contended that the Tribunal did not take into account as a relevant fact that the brother had been accorded "subsidiary protection". The appellant's complaint is that the Tribunal proceeded "on the erroneous basis that the brother had been recognised as something less than the appellant was seeking under s 36 of the Migration Act. The appellant contended that because of that misunderstanding, the Tribunal failed to deal with an integer of the appellant's claim. 50 The allegation that the Tribunal misunderstood that the protection or recognition granted to the brother was essentially equivalent to that that the appellant was seeking is based on [58] of the Tribunal's reasons where the Tribunal stated this: [The appellant's] representatives have submitted that it is relevant that his younger brother [appellant's brother] (who on the basis of the evidence which they produced held a position in the PSF and who he has said was also involved in the Village Defence Committee) has been recognised as a refugee in Italy. However the documents which they produced suggest that his brother has only been granted subsidiary protection. 51 I accept that the use of the word "only" suggests that the Tribunal thought that the recognition accorded to the brother was of a lesser order than that of a refugee under the Convention Relating to the Status of Refugees ("Refugees Convention"). But even if that was so, it does not follow that the Tribunal was not of the view that the Italian authorities had recognised claims made by the brother as meritorious and warranting protection. 52 The difficulty with this ground of appeal is that the level or extent of recognition accorded to the brother in Italy cannot be said to have been critical to the appellant's claim made in relation to his brother's circumstances. In that respect the appellant submissions either mischaracterise or overplay the probative value of the brother's circumstances and any finding about them made by the Italian authorities. At best, that the brother fled Pakistan having been involved in very similar anti-Taliban activities as those of the appellant was probative as to whether the appellant's asserted fears of harm were well-founded. 53 It may for present purposes be accepted that the fact that the brother fled and sought the protection of another country may have served to support a conclusion that the fear of harm claimed by the appellant was well-founded. The fact that a different authority in another country provided protection to the brother may have served to confirm the validity of the brother's fears of harm. However, those matters were not determinative of whether the asserted fears of the appellant were well-founded. They were, at best, marginal considerations. The precise nature of the protection accorded to the brother by Italy was a consideration of even more marginal utility, if at all probative, of whether the asserted fears of the appellant were well-founded. 54 In my view, if the Tribunal erred as to the status accorded to the brother by the Italian authorities, that error was an error of fact. I doubt that the fact in question was of any probative value to the statutory task required by the Tribunal. If it was of some probative value, this was not a fact of such significance to the claims made by the appellant as to warrant the conclusion that the erroneous understanding of the Tribunal about that fact led to a failure by the Tribunal to perform the statutory tasks required of it. In other words, if there was an error it was not a jurisdictional error. 55 Whilst I have come to that conclusion for reasons different to the primary judge, the primary judge was correct to hold that in relation to the issue here being addressed, the Tribunal's decision was not affected by jurisdictional error. Accordingly, this ground of appeal must be rejected.

Conclusion 56 As the appellant has succeeded on his second ground of appeal, the appeal should be allowed and the orders made by the primary judge should be set aside. The matter should be remitted to the Tribunal for determination according to law. I will make orders to that effect and an order that the Minister pay the appellant's costs of the appeal and of the proceeding before the FCCA. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.