CFB16 v Minister for Home Affairs [2019] FCA 1415 | Case summary

Resolution 19 One of the factual matters to note about the Tribunal's decision-making process is that it conducted two hearings, one in December 2015 and a second hearing in April 2016. That was because in January 2016, DFAT had published an updated country report on Pakistan, and the assessment by DFAT about the situation in the FATA (including in the Kurram Agency) had changed. Properly, the Tribunal gave the appellant an opportunity, along with his migration agent, to appear and present arguments about what was said in the most recent DFAT report. 20 The Tribunal accepted (at [6]) that the appellant came from a village near Parachinar, in the Kurram Agency, and appeared to accept that would be the place to which he would return, and therefore the place against which the well-foundedness of his subjective fear of persecution should be assessed, at least in the first instance before any inquiry about whether his fear of persecution was well-founded across all of Pakistan. 21 The Tribunal also accepted (at [6]-[7]) that the appellant's main fear was because of his Shia Muslim religion, rather than the tribe he came from. It also accepted the appellant is identifiable as a Shia because of his name, because he originates from Parachinar, and because he has scars on his back from self-flagellation. 22 In order to determine the ground of appeal, it is not necessary to set out all of the Tribunal's recitation of the appellant's claims and his narrative about what happened to him in the past. The Tribunal made a number of findings, adverse to the appellant, about his narrative of what happened to him in the past, and also about his claim to be a zakir, which the Tribunal appeared to accept (at [13]) was a person who voluntarily assumed the role of reading out religious poems in the imambargahs (Shia mosques and sites of worship), especially during Moharram (a one month mourning period observed by Shias) and at funerals. Indeed, the Tribunal found (at [24]) that the appellant had "fabricated" aspects of his claim to have been harmed in the past by the Taliban. 23 However, the single ground of appeal relates to the discharge of what is accepted by the Minister to have been one of the core tasks on the review, in large part unrelated to the Tribunal's adverse credibility findings about the appellant's narrative of what had happened in the past. That task was to determine whether, at the time of the review and by reason of being a Shia, the appellant had a well-founded fear of persecution in the Kurram Agency, and relevantly to the ground of appeal, how the well-foundedness of the appellant's fear should be assessed in light of the country information before the Tribunal. The Tribunal recognised, correctly, at [26] of its reasons, that it needed to perform this task, irrespective of what it had found about the appellant's claims of what had happened to him in the past. 24 In AKH16 at [40]-[50], Middleton J and I made the following observations: 40 Despite the caution in Guo, it is still common for decision-makers (and courts) to move into the language of "real chance" of harm, and to use in contradistinction to that term the words "remote" or "insubstantial". That is what the Tribunal did in this case. We observe that, at a day-to-day level in a busy administrative tribunal, it may be useful for a decision-maker to contrast in her or his own mind whether, on the material, the harm feared by a person is "remote" with whether there is a "real chance" the person may experience the harm she or he fears. Nevertheless, these are not the words of the Convention and the issues on this appeal illustrate how substitution of that kind can lead to difficulties. 41 In other jurisdictions, the language of "possibility" is commonly used as the explanatory of the content of a well-founded fear, but always with adjectival qualification. 42 The United States Supreme Court has used "reasonable possibility": Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987) ('Cardoza-Fonseca') at 440 (Stevens J). Cardoza-Fonseca is regarded by Hathaway and Foster as a "seminal precedent": Hathaway JC and Foster M, The Law of Refugee Status (2nd ed, Cambridge University Press, 2014) p III. In the United Kingdom, the House of Lords has used "a reasonable degree of likelihood" of persecution or a "real and substantial risk" of persecution: R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958 at 994 (Lord Keith of Kinkel) and 1000 (Lord Goff of Chieveley). The Supreme Court of Canada has used "reasonable possibility" or "serious possibility": Kwong Hung Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593 ('Kwong Hung Chan v Canada') at 659 (Major J). 43 The adjectival qualification emphasises the requisite sufficiency of the objective basis for a person's fear: namely, a level which justifies another contracting State being required to offer surrogate protection to that person. 44 The antonym of "well-founded" has been described as: (1) "mere possibility" (see Major J in Kwong Hung Chan v Canada at 659); and (2) "remote chance" (see the New Zealand High Court in DG v Refugee Status Appeals Authority [2001] NZHC 443 (Chisholm J)). 45 In Chan, Toohey J used "remote" together with the adjective "insubstantial", which takes its meaning closer to some of the other negative descriptions such as "fanciful" (see Hathaway and Foster at p 114). 46 Reaching too readily for the label "remote" as a descriptor of risk may lead to error. Whilst we conclude on this appeal that the Tribunal's findings were open to it in this particular case, it would not be correct to use "remoteness" as suggesting that to be well-founded, the harm feared by a person must be of an immediate or direct nature. Nor should a decision-maker go straight to the question of whether there is only a "remote chance" that the harm feared by an applicant will eventuate. That may lead a decision-maker inadvertently into a reasoning process relying on probabilities. It may subvert the Convention's focus on the positive question as to whether there is a sufficient basis in the evidence to describe a person's fear of persecution as "well-founded". 47 In addition, a decision-maker should not ignore the type of fear and the subjective fears of an applicant in the objective evaluation of whether the particular fear was well-founded. An applicant's expression of her or his fear, and the circumstances in which it is claimed to arise, may inform the assessment of whether it is well-founded. 48 However, the assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future: see eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ('Wu Shan Liang') at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ). 49 As Mortimer J stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]: The "reasonably foreseeable future" is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the "well-founded" aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical "on the ground" circumstances she or he will be living in. Using "reasonably foreseeable" also carries with it a rejection of an assessment which becomes too remote from a person's expected life circumstances. These are not matters which can be expressed sensibly with any more precision. 50 As we have said, there was no dispute as to these legal principles. The only questions to determine are how the Tribunal went about its task, and whether it fell into jurisdictional error. In considering whether objectively there is a well-founded fear, the decision-maker should not look to statistics or projections divorced from the fear as articulated by the applicant for a protection visa. At all times the decision-maker must look to the individual applicant's circumstances to determine whether that applicant, in the circumstances to which she or he will return to her or his country of nationality, has a well-founded fear of persecution. Further, in considering whether the fear is well-founded, the Court must consider the totality of the circumstances. We do not think these matters are controversial in light of the authorities referred to above. 25 I adopt that as the correct approach in principle to the ground advanced on the appeal by the appellant. 26 From [27] of its reasons, the Tribunal went through the country information before it, starting with country information from approximately 2012. As it moved through the contents of that country information, the Tribunal made a series of findings that the situation in the Kurram Agency had gradually improved. 27 Paragraph [28] of the Tribunal reasons demonstrates the Tribunal recognised the existence of risks of serious harm to Shia in the Kurram Agency: 28. Country information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised·as having opposed the Taliban (primarily Turis). Reports indicate that in the first quarter of 2012 Shias continued to be targeted in Kurram Agency, with 30 security incidents in Kurram including 15 bomb attacks. In July 2013 multiple bomb blasts in Parachinar were reported to have killed around 50 people and injured over 100. However, as discussed with the applicant at hearing, country information from a variety of sources indicates that the situation has improved in the FATA, including Kurram Agency. (Footnotes omitted.) 28 This passage indicates the Tribunal understood the question for it was the level and nature of those risks, in assessing whether the appellant's fears were objectively well-founded. 29 By [33] of its reasons, the Tribunal made the following findings, based on the January 2016 DFAT report: 33 The most recent DFAT advice in relation to Shias in Pakistan indicates that the security situation in Kurram Agency has improved. Specifically in the DFAT report on Shias in Pakistan dated 15 January 2016 it was stated that: • According to the FATA Research Centre ('FRC'), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015. • DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015. • Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures. • More than 3,700 families returned to their places of origin in 2014, including Parachinar and· surrounding villages in upper Kurram. This represents approximately 25 per cent of those formerly displaced - most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October- November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks. • According to the SATP, there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight. • FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies. • DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb. • DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies. (Footnotes omitted.) 30 At [34]-[35], the Tribunal recorded in detail the appellant's response to this country information, and how the appellant said it was wrong, incomplete or inaccurate. At [37] and [39] the Tribunal also recorded in detail the submissions made by the appellant's representative. I note, as the Minister submits, that what was said to the Tribunal by the appellant's representative and recorded at [39] of the Tribunal reasons does include a significant list of statistics about the numbers of reported incidents and fatalities. This paragraph contains one of the pieces of country information which the appellant put before the Court on appeal, the SATP report. At the end of that paragraph, the Tribunal found: SATP reported that other parameters of violence such as suicide attacks, explosions and sectarian attacks remained low throughout 2014 with significantly less casualties from both suicide attacks and incidents of explosion. SATP recorded that sectarian violence in the region also registered a steep decline. 31 The findings of the Tribunal which the appellant must impugn are at [41]-[43] of its reasons: 41. The Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency where the applicant is from, as detailed in the country information discussed including as set out in the representative's submissions, and acknowledges that the situation is protracted and fluctuates. This includes an IED attack in a clothes market in Parachinar on 13 December 2015 which killed at least 25 people and over 70 injured, as submitted by the applicant at hearing and by the representative. Nonetheless the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14. Despite this December 2015 terrorist attack, and the more recent foiled attack referenced by the representative at hearing (and reflected in a Tribune article submitted) there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and 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. In this context the Tribunal considers it would be premature to conclude that this attack on 13 December 2015 - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. The Tribunal considers that it would be mere speculation to find on the evidence before it 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 such as the applicant 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 it 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 applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future. 42. The Tribunal accepts DFAT's assessment regarding the risk of generalised violence in the FATA and accepts that there is some level of risk to the applicant in the context of generalised violence. However it finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm based on his Shia religion, his Bangash ethnicity, his membership of a particular social group of 'Bangash Shia from Kurram Agency', any imputation of an anti-TTP political opinion as a Bangash Shia from Kurram Agency or other reasons advanced, as an asylum seeker from a Western country (addressed below) or any other Convention reason. 43. The Tribunal accepts that there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured. The Tribunal finds, however that overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards. For reasons set out above, whilst the Tribunal accepts that the applicant is a Bangash Shia from Parachinar (and may be imputed with an anti-Taliban opinion on this basis), it does not accept that he has been specifically targeted or harmed by the Taliban or other Sunni extremists in the past, nor have any of his immediate family members despite the latter remaining in the area. For these reasons {above and below) when combined, the Tribunal finds remote the chance the applicant would be seriously harmed by the Taliban, other Sunni extremist groups, or anyone else for reasons of his Shia religion, his imputed political opinion, or membership of a particular social group of 'Bangash Shias from Kurram Agency' or as an asylum seeker from a Western country on return to Kurram Agency. The Tribunal therefore finds that the applicant does·not face a real chance of serious harm for a Convention reason on return to Kurram Agency now or in the reasonably foreseeable future. 32 On the appeal, the appellant sought to tender three pieces of country information to which the Tribunal had referred. These were: • DFAT Thematic Report, Shias in Pakistan, 15 January 2016; • FATA Research Centre, FATA Security Report, First Quarter 2016 • SATP, FATA: Assessment - 2015 33 The appellant appeared to submit that the contents of these reports indicated it was not open to the Tribunal to conclude the chance of persecution on the basis of the appellant being a Shia and being a victim of sectarian violence in the Kurram Agency was not well-founded, in the sense of being "remote" and not "real". As I noted during oral argument, taking the Court to this country information in the way the appellant's counsel did appeared to be inviting the Court to make up its own mind about whether the Tribunal was right or wrong in the factual conclusions it reached. Counsel maintained that was not the purpose, and submitted (in substance, paraphrasing the submission made as fairly as I can) that the purpose was to show that the contents of the three pieces of country information (and especially the 2016 FRC report) compelled a conclusion that there was a real chance of the appellant being persecuted in the Kurram Agency, by exposure to sectarian violence on the ground he was a Shia, and that for the Tribunal to conclude otherwise meant it must have erred in its understanding and application of the principles about how to determine whether a fear of persecution is objectively well-founded. I do not accept that submission. 34 In oral argument counsel for the appellant indicated that what was said at [36] of the written submissions was the "crux" of the appellant's argument: 36. The Tribunal ignored the strong evidence of past risks of violence in the relevant region (such as had been accepted by the delegate) and the recent evidence of violent happenings in the relevant region. Instead, the Tribunal fixed on the assessment of risk provided in the DFAT report and required definite evidence before doing anything other than transposing DFAT's findings as its own. The Tribunal wrongly characterised its necessary task of assessing future risk based on current information as "merely speculative" and "premature" and found on facts that could not properly lead to such a conclusion, that the relevant risk was remote. 35 As to the appellant's submissions about the Tribunal adopting the wrong test, misunderstanding its task, or misapplying the legal principles about what it means for a fear of persecution to be objectively well-founded (however, one might express the jurisdictional error), I reject those submissions. 36 Read fairly and context, and especially given the detailed consideration of country information which preceded them, the passages at [41]-[43] of the Tribunal reasons reveal that the Tribunal well understood it did not need to be satisfied of any likelihood or probability of persecution, and that it was to determine whether the appellant's subjective fears, as an individual, were well-founded by asking itself whether it was satisfied there was a real chance and not a remote chance that the appellant would be persecuted by being the target of sectarian violence, as a Shia. In particular, the Tribunal did this in that part of [41] where it found that there was not: a real chance that any individual Shia Muslim member of the Bangash tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. (Emphasis added.) 37 I emphasise this part of the Tribunal's reasons because it demonstrates, in my opinion, that the Tribunal was asking itself about what would happen to this appellant, as an individual who could be identified as Shia, in the context of the levels of sectarian violence it found on the country information existed at the time of its review. Its findings about what those levels were involved findings of fact which, as the repository of the power, were for it to form, not this Court. 38 As Middleton J and I explained in AKH16 at [46], what is important is for a decision-maker to focus on the positive question whether a person's fear is well-founded, without too much emphasis on the subtly different question of whether a chance of serious harm is "remote". Too much focus on the question of whether a chance of harm is remote can lead a decision-maker away from the statutory task, which can be described in the following way. A person expresses a subjective fear of persecution (relevantly) because he is and can be identified as a Shia Muslim, and because there is cogent information suggesting a history of sectarian violence against Shia in the Kurram Agency and in FATA more generally, which is where he is from and where he would be likely to return. The decision-maker's task then is: what does the most recent and reliable country information before the decision-maker indicate about whether his fears, as expressed, are well-founded? On the current information and material before the decision-maker, do those fears have an objective basis of a kind that justifies the offering of surrogate protection to that person? Subject to arguments based on matters such as irrationality, illogicality or legal unreasonableness, the answer to that question will generally be for the decision-maker, and more than one conclusion might reasonably be open, depending on the weight accorded to the relevant information and evidence. 39 In my opinion, read fairly and as a whole, the Tribunal's reasons demonstrate it had the correct focus: it was looking at what it considered, as a matter of fact, was the appropriate way to describe whether there was an objective basis for the appellant's obvious subjective fear, to a level which justified the granting of protection to the appellant by Australia. 40 Applying what the High Court said in Guo to the situation of subjective fears expressed in relation to sectarian violence is challenging. The observations in Guo, especially at 574-575, are made in the context of a case where the visa applicants claimed to fear persecution by reason of their political profile in China, and their breach of the "one child" policy in China. In other words, the fears being expressed related to matters particular to past experiences of those visa applicants based on their individual circumstances, and the task of the (then) Refugee Review Tribunal was to assess whether those fears were well-founded, in relation to how those applicants as individuals would be related, in their particular circumstances, by the Chinese authorities. The Tribunal was, as the plurality pointed out in Guo at 574, looking at to what extent past events are a guide to the future. In that context the plurality made the following observations at 574-575: The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. 41 Where a visa applicant's fear of persecution arises because of a wider security situation in a country, or a region of a country, and the incidence of sectarian violence against large numbers of persons with whom the applicant shares an attribute (such as religion), the decision-maker's task is far more difficult. That is because although an applicant may fear serious harm on the basis of that attribute, it is not in the nature of the harm inflicted that it is targeted at an applicant as an individual. It is targeted at a group of persons who share the same attribute. By this I do not suggest it is any the less persecution, or any the less capable of falling within Art 1A of the Refugees Convention, or any equivalent statutory test. I am simply pointing out the difference in the decision-maker's fact-finding task, and the challenges presented. The decision-maker must decide the well-foundedness of an applicant's subjective fears of being harmed through public acts of violence or terrorism, because of being one of many people with a shared attribute (religion). That is quite a different situation from Guo. 42 In my opinion, the Tribunal in this case discharged that task, albeit that as Middleton J and I pointed out in AKH16 at [63], reasonable minds might have differed on whether the chance of serious harm was properly described as "real" or not. Ultimately, that function is reposed in the finder of fact; here, the Tribunal. 43 It is necessary to say something of the focus in the appellant's submissions on the Tribunal's expression in [41] of its reasons about "definite change". This was important to the appellant's contention that the Tribunal had set the bar too high. In my respectful opinion, the appellant has misunderstood the Tribunal's reasons, and the context in which it used this expression. 44 In using this expression, the Tribunal is interrogating itself about its own conclusion (reached at earlier points in its reasons, including earlier in [41] itself) that there had been a "sustained improvement" in the security situation in the Kurram Agency, and in Parachinar in particular. It is interrogating itself whether the December 2015 attack should give it cause to change the view it would otherwise reach. The Tribunal well understood the security situation was fluid, and fluctuating (and said so at [41]), but there is no inconsistency in it recognising that fact and yet finding the security situation, in relation to sectarian violence targeting Shia, had experienced a sustained improvement, even if the situation fluctuated. This is what I find the Tribunal was asking itself about the December 2015 incident when it used the phrase "definite change". Although as the appellant submitted, the Tribunal also had evidence of a foiled terrorist plot in April 2016, the Tribunal took this it account expressly, but did not change its views. That was a matter for the Tribunal, as the fact finder. 45 As I have noted, appellant's counsel made several submissions to the effect that the Tribunal's findings at [41] about sustained improvement, and the chance of persecution being objectively remote, were "not open" to the Tribunal. The appellant did not have a "no evidence" or "not open" ground of appeal. Counsel referred to [65] of AKH16 where the language of "not open" is used, in the context of explaining how a decision-maker should go about deciding if a fear is objectively well-founded. It is true the reasons of Middleton J and myself at this paragraph use that phrase. However, in context, that language is simply a way of demonstrating the breadth of choices open at a fact finding level to merits decision-makers, who are (as in both this case and AKH16) faced with a large amount of country information, which may contain a variety of opinions, and which may differentially evaluate the security situation a country or area, and the likelihood of serious harm for (relevantly) Convention reasons. 46 As the Minister submitted, relying on well-established authorities such as Applicant WAEE v Minister for Immigration [2003] FCAFC 184; 236 FCR 593 at [46]-[47]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 at [65]; Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323 at [67]-[69], SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] and NAHI v Minister for Immigration [2004] FCAFC 10, it was not necessary for the Tribunal to refer in its reasons to every piece of evidence or country information (or passage from country information), nor every factual contention advanced by the appellant, and the selection of and weight afforded to country information was a matter for the Tribunal. These principles, are of course subject to recognising that a decision-maker's fact finding and conclusions are conditioned by the need for rationality and logicality, and also by the need for fact finding and its overall conclusions to be capable of characterisation as legally reasonable. 47 The factual judgments under scrutiny are not easy to make, and much is at stake. I consider the Tribunal was aware of the significance of its task, and undertook its consideration properly instructing itself about the appropriate threshold. It did not place the bar too high. 48 The appeal must be dismissed. There is no basis for anything other than the usual order as to costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

CFB16 v Minister for Home Affairs

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