ANALYSIS
50 The appellant contends that, in performing its assessment of whether the appellant had a well-founded fear of persecution, the Tribunal fell into jurisdictional error by failing to deal with his evidence and submissions:
(a) in his statutory declaration, his evidence that on 13 December 2015 a bomb exploded in a market in Parachinar in Kurram Agency, which killed 24 Shia Muslims and wounded up to 70 others;
(b) in his pre-hearing submissions, that:
(i) the "sectarian extremist group [LeJ] has claimed responsibility for the attack, stating that it was directed against Shias. LeJ also threatened further such attacks on Pakistan's Shia community"; and
(ii) the "attack is a clear indication that sectarian violence is still a significant issue in Parachinar and that Shia civilians are still at very high risk. Shia Muslim civilians of Parachinar were indisputably the target of this attack, and further attacks have been threatened."
(Emphasis added.)
(c) in extracts of news reports he provided in his pre-hearing submissions, being:
(i) an AAJ news report (set out above at [15(a)]) which noted that LeJ had claimed responsibility for the bomb blast at the market in Parachinar "in retaliation for Shia support of Iran and Bashar al-Assad", and included the express statement to the media by an LeJ spokesman:
We warn the Shia parents that if they don't stop their children from participating in the war of Bashar al-Assad, they would face more attacks like this.
(Emphasis in appellant's pre-hearing submissions.)
(ii) the BBC news report (set out above at [15(b)]) which included the following:
A hardline Sunni militant group in Pakistan, [LeJ], says it was behind the bombing and linked its attack to the war in Syria, saying it was in revenge for killings carried out by the Syrian president and his Iranian allies.
The Reuters news agency reported on Thursday that a unit of Shia Pakistani fighters, many from Parachinar, is in Syria. They were, the report said, recruited by Iran to fight for President Bashar al-Assad against Syria's mostly Sunni rebel forces.
(Emphasis added.)
(the relevant material).
51 The appellant argues that the Tribunal's reasons are silent in relation to the appellant's clear submission that LeJ had threatened further attacks on Shias in Kurram Agency, and the news report supporting that submission. He contends that the Tribunal erred by overlooking or ignoring the claim raised by the relevant evidence and submissions and thereby failed to accord him procedural fairness.
52 The Minister argues that in order to show that the Tribunal erred by overlooking or failing to consider the issue raised by the relevant material the appellant must show that:
(a) the Tribunal in fact failed to consider the issues, citing Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [53] (Kenny, Griffiths and Mortimer JJ); and
(b) the issue was of sufficient importance that the failure to consider it amounted to a failure to perform the Tribunal statutory task, citing MZYTS at [70] approving Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111] (Robertson J).
53 The Minister submits that the issue raised by the relevant material was relatively unimportant in the context of the Tribunal's findings, which provides much of the explanation for why the Tribunal did not explicitly refer to it, and contends that is sufficient to answer the appeal. In the alternative, the Minister submits that the Court should infer that the relevant material was in fact considered by the Tribunal.
54 The Minister says, and I accept that the Tribunal gave consideration (at [38]-[56]) to whether, notwithstanding a significant bomb attack in Parachinar in December 2015, the security situation had improved in Kurram Agency, and if so to what extent. The Tribunal did so as part of the predictive exercise of determining whether, if the appellant returns to that area, he will face a real chance of suffering serious harm now or in the reasonably foreseeable future because of sectarian violence by Sunni extremist groups.
55 I also accept the Minister's submission that the Tribunal's finding (at [54]) was not that if the appellant returned to Parachinar there was no chance that he would suffer serious harm at the hands of Sunni extremist groups, but rather that having regard to country information about the security situation in and around Parachinar, and in the Kurram Agency more generally, the Tribunal considered that there was "not more than a remote chance" that the appellant would be killed or injured in terrorist attacks now or in the reasonably foreseeable future. The Tribunal reached that finding based on country information about a changed situation in Kurram Agency, which included specific references to the December 2015 bomb attack (at [41], [53] and [54]). The Tribunal found (at [54]) that "it would be mere speculation to find on the evidence before it that [the December 2015 bomb attack] means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally…".
56 The Minister contends that the appellant's argument seeks to elevate the fact that the Tribunal did not refer to the issue raised by the relevant material to the status of a critical matter that the Tribunal was required to expressly refer to and dispose of in its reasons. The Minister says that problem with that argument is that it fails to recognise that the Tribunal accepted (at [54]) that "there continues to be incidents of sectarian violence in the Kurram Agency" and the Tribunal expressly referred to the December 2015 bomb attack as evidence of that.
57 On the Minister's argument, because the Tribunal accepted that incidents of sectarian violence continue to occur in Kurram Agency, it was unnecessary for it to explicitly refer to the issue raised by the relevant material, which went to the risk of future incidents of sectarian violence there. Relatedly, the Minister says that once the Tribunal had accepted that there was a risk of sectarian violence in the future from one or other Sunni extremist groups, it did not matter which group it was. The Minister argues that it was unnecessary for the Tribunal to then go on and deal explicitly with the threat of future violence from a particular group, such as LeJ. On that basis, the Minister contends the absence of express reference to the issue raised by the relevant material does not demonstrate that the Tribunal failed to consider the relevant material or that any claim made by the appellant was left unresolved.
58 I take a different view.
59 The appellant's submissions and evidence raised a claim that LeJ perpetrated a major bomb attack in Parachinar on 13 December 2015, which killed 24 people and injured about 70 others; the attack followed a news report that a unit of Pakistani Shias were fighting in the war in Syria in support of President Assad and against largely Sunni militia; LeJ had specifically threatened further attacks on Pakistani Shias unless they stopped fighting in that war; the war in Syria had not stopped and there was nothing to indicate that Pakistani Shias had ceased fighting there; and by the date of the Tribunal hearing only just over a month had elapsed since LeJ had threatened further attacks.
60 The possible significance of the claim was the specific threat by LeJ; the fact the threat was made following LeJ's claimed perpetration of the bomb attack; that there was nothing to show that Pakistani Shias had ceased fighting in Syria; and that given that only a month had passed since the threat, it could not be known whether the LeJ would carry through on its threat. Its possible significance included that the involvement of Pakistani Shias in the bitter war in Syria was another flashpoint for sectarian violence by Sunni extremist groups against Shias in Kurram Agency, different from the cause that the Tribunal recognised as the basis of the conflict between Sunni extremist groups and Shias when the violence in Kurram Agency began in 2007. That is, it was another reason why Sunni extremist groups had and might again perpetrate attacks in Kurram Agency.
61 The task for the Tribunal involved a predictive exercise as to whether on return to Kurram Agency, the appellant would face a real chance of suffering serious harm now or in the reasonably foreseeable future as a result of sectarian violence by Sunni extremist groups. That task necessarily involved speculation as to circumstances in the future on the basis of material in the present, and what had happened to the appellant and other Shia Muslims in Parachinar, and more generally in Kurram Agency, in the past: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 571-573.
62 The Tribunal's reasons show that it understood that the appellant submitted that the December 2015 bomb attack had occurred (at (54]); that LeJ had claimed responsibility for that attack and claimed that it was directed against Shias (at [41]); and that the appellant relied upon the bomb attack as evidence of an ongoing risk to his safety (at [38]). The Tribunal understood that the appellant claimed that, as a Shia of Bangash ethnicity with an imputed opinion of opposition to the Taliban and/or other Sunni extremist groups, if he returns to Kurram Agency, he will face a real chance of suffering serious harm from generalised sectarian violence by Sunni extremist groups.
63 The Tribunal also understood the appellant's submissions that:
(a) in the context of a protracted and brutal conflict, with cycles of violence and fluctuations in casualties, a decline in civilian casualties in 2014 should not be relied on for a conclusion that the appellant would no longer face a real chance of suffering serious harm if he returned to Kurram Agency" particularly when civilian casualties appeared to rise again in 2015, and in view of the significant December 2015 bomb attack; and
(b) the December 2015 bomb attack showed that, despite a period reduced violence, violence against the Shia community was ongoing and could quickly rise again.
The Tribunal's reasons show that it understood those submissions, but reached different findings to those contended for by the appellant.
64 The Tribunal concluded (at [54]) that, notwithstanding the December 2015 bomb attack, the weight of the evidence indicated that there had been a "sustained improvement" in the security situation. It found that it would be premature to conclude that the bomb attack, the first in Parachinar in almost two and a half years, marked a "definite change in the security situation". It accepted DFAT's assessment regarding the risk of generalised sectarian violence in the FATA (at [55]) and found that there was some level of risk for the appellant in the context of generalised violence but concluded that such a risk was remote.
65 There remains, however, a question as to whether in reaching those findings the Tribunal considered and dealt with the claim raised by the relevant material. Having regard to that claim and its possible significance the Tribunal was in the unusual position of having evidence and submissions as to the recent, express future persecutory intentions of a Sunni extremist group, in circumstances where the future actions of such groups was the source of the appellant's claim to have a well-founded fear of persecution.
66 The appellant has the onus of persuading the Court that the correct inference to be drawn is that the reason why that claim was not mentioned by the Tribunal is because the Tribunal ignored or failed to consider it, rather than, for example, because the Tribunal gave the evidence or submissions no weight, or thought it unnecessary to refer to.
67 The Tribunal was required to scrutinise the appellant's evidence and submissions and attribute whatever weight or persuasive quality it thought appropriate, with the weight to be afforded to relevant material being a matter for it: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). It was not however necessary for the Tribunal to refer to every piece of evidence and every contention made by the appellant. Further, there is a distinction between the omission of a matter from a Tribunal's reasons indicating that the Tribunal did not consider the matter to be material, and an omission indicating that the Tribunal did not consider the matter at all: Minister for Immigration and Citizenship v SZGUR [2011] HCA1; 241 CLR 594 at [31] (French CJ and Kiefel J with Heydon and Crennan JJ agreeing). There is a distinction too between a Tribunal failing to avert to evidence or representations which, if accepted, might have led to it making a different finding of fact, and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a reason set out in the Refugees' Convention.
68 The Tribunal is an administrative body rather than a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error': Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). And in this case the Tribunal's reasons are comprehensive and at least identify the issue, such that an inference that the Tribunal overlooked the claim is not too readily to be drawn: Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ).
69 None of that, however, contradicts the established principle that if review of the Tribunal's reasons discloses that it ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument, misunderstood the applicable law, or misunderstood the case being put by the appellant, that may show jurisdictional error: Plaintiff M1/2021 at [27].
70 Here, the Minister does not argue that the Tribunal did not refer to the claim raised by the relevant material because it attributed no weight to it. Nor does the Minister argue that the Tribunal did not refer to that claim because it was not a substantial and clearly articulated claim. Rather, the Minister submits that the issue was relatively unimportant in the context of the Tribunal's findings, which provides much of the explanation for why the Tribunal did not explicitly refer to it. In the alternative Minister submits the Court should infer that the Tribunal did actually consider the issue. Both of those arguments should be rejected.
71 The Tribunal was required to undertake the necessary predictive exercise with consciousness and consideration of the submissions, evidence and material advanced by the appellant. If the Tribunal proceeded without being consciously aware of the purport of particular representations by the appellant and their possible significance, such that the Tribunal proceeded without a proper awareness and understanding of what was being put forward and therefore without a proper appreciation of the matters that might bear upon its decision, then jurisdictional error may be demonstrated: MZYTS at [38]; ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [9] (Mortimer J, Colvin and O'Sullivan JJ).
72 In Applicant WAEE at [47] the Full Court explained:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Emphasis added.)
73 The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: MZYTS at [49] citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present, and what is absent, from the reasons may in a particular case enable a Court on review to find jurisdictional error: MZYTS citing Yusuf at [10], [44], [69].
74 Here, in reaching the finding that there was no more than remote chance of the appellant suffering serious harm on return to Kurram Agency, the Tribunal's reasons said little or nothing to show that it was consciously aware of the purport of the claim raised by the relevant material and its possible significance nor that it considered, evaluated, and dealt with that claim.
75 Here, the claim to which the Tribunal did not refer is not, as in SZGUR, a procedural issue. It was important to the appellant's assertion of a well-founded fear of persecution. I can see little merit in the Minister's argument that the Tribunal did not refer to it because it was "relatively unimportant in the context of the Tribunal's findings". The relevant claim related to the central issue before the Tribunal - the risk of further major attacks by Sunni extremist groups in Kurram Agency. It raised a specific threat by a Sunni extremist group that had just perpetrated a major attack, that it would again attack Pakistani Shias in Kurram Agency unless they ceased fighting in Syria and they had not done so, and the threat was very recent. Given that only a month had passed since the threat, it could not be known whether LeJ would carry out its threat. Its possible significance included that the involvement of Pakistani Shias in the war in Syria was another and different reason why Sunni extremist groups had and might again perpetrate attacks in Kurram Agency. It was a claim that should have been expressly dealt with by the Tribunal. That claim, if resolved in the appellant's favour, might have been dispositive of the Tribunal's review. In those circumstances, the Tribunal's failure to deal with it in its reasons raises a strong inference that it overlooked or failed to consider the issue: Applicant WAEE at [47].
76 Contrary to the Minister's alternative argument, on a fair reading of the Tribunal's reasons, I do not infer that the Tribunal considered and evaluated the appellant's claim that he faced a real chance of suffering serious harm on return to Kurram Agency because LeJ had perpetrated a major attack just over a month earlier, had threatened further attacks in that area unless Pakistani Shias ceased fighting in Syria and they had not, and LeJ might strike again, but instead preferred other evidence or country information. The Tribunal only considered the December 2015 bomb attack as an incident of sectarian violence, and considered whether that incident pointed to an increased risk of sectarian violence in the future. It did not, in that context, refer to or consider the express threat by LeJ, made just over a month before the Tribunal heard the appellant's application.
77 Consideration of the appellant's claim would have involved the Tribunal in articulating the different effects of the conflicting material before it and explaining why the Tribunal preferred some country information over the information raised in the relevant material: MZYTS at [50]. The claim raised by the relevant material contradicted the inferences which the Tribunal drew from the January 2016 DFAT Report, and the Tribunal was required to weigh that contradictory evidence and claims, yet there is little or nothing to show that it did so: Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [63] (Gordon, Robertson and Griffiths JJ). In the particular circumstances of the appellant's claim, if the relevant claim and its possible significance had been considered by the Tribunal, one would expect that the Tribunal would have referred to it, even if to reject it. In this case, the absence of any consideration of the relevant claim is indicative of overlooking or omission, not weighing or preference.
78 The Minister seeks to rely on the fact that the Tribunal noted (at (41]) that in his pre-hearing submissions the appellant said that LeJ had claimed responsibility for the December 2015 bomb attack and that it was directed against Shias, and that the Tribunal later found that sectarian violence against civilians was likely to continue in Parachinar. The Minister argues that is enough to show that the Tribunal understood and evaluated the submission that sectarian violence was likely to continue because there had been threats of it occurring. I disagree. Had the Tribunal been consciously aware of the purport and possible significance of the relevant claim, and evaluated it, I expect the Tribunal would have weighed and evaluated the conflicting material. It did not deal with the specific and very recent threat by LeJ, which had just perpetrated a major attack, that it would again attack Pakistani Shias in Kurram Agency unless they ceased fighting in Syria and they had not done so. Nor did it deal with the claim that the involvement of Pakistani Shias in the war in Syria was another and different reason why Sunni extremist groups had and might again perpetrate attacks in Kurram Agency.
79 It is relevant too that the Tribunal used copied reasons in the critical paragraphs of its reasons at [54]-[56]. That those paragraphs were copied from a decision in an earlier matter, or perhaps from a template created for use in the Tribunal, can be seen in the high level of similarity between those paragraphs and earlier Tribunal decisions. The parties provided three examples where the Tribunal's reasons at [54]-[56] are very similar to the reasons in earlier Tribunal decisions:
(a) AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; 269 FCR 168 at [25], which was an appeal in relation to a Tribunal decision made on 21 January 2016;
(b) BBT16 v Minister for Immigration & Anor [2018] FCCA 631 at [27], which was an application in relation to a Tribunal decision made on 11 April 2016; and
(c) 1516299 (Refugee) [2016] AATA 3791 at [32]-[35], being a Tribunal decision made on 29 April 2016.
80 The high level of similarity is at its clearest in relation to [54] of the Tribunal's reasons (set out at [28] above). It suffices to set out the following two examples.
81 In AKH16 at [25] the Court extracted [79]-[80] of the Tribunal decision which was the subject of the appeal in that case, which had been delivered in January 2016. Paragraph [54] of the Tribunal's reasons in the present case is set out below, marked up with underlining to show the differences between the reasons in this case and the reasoning of the Tribunal in AKH16. The additional words to those used in AKH16 are underlined, and the words deleted from the reasons in AKH16 are struck through:
[54] The Tribunal accepts that, as indicated by the applicant, there continues to be incidents of sectarian violence in FATA, including in Kurram Agency where the applicant's home village of [redacted] is located. The IED attack in a clothes market in Parachinar on 13 December 2015 in which at least 25 people were killed and over 70 injuredin 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, as highlighted by the applicant and whether this incident would lead to further sectarian violence. Thehis representative, is evidence of this. Nonetheless, 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 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and allindications 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 In this context 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 the attack on 13 December 2015, the first such attack in Parachinar for almost two and a half years - year, 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 or 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 considers that it would be mere speculation to find on the evidence before me 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 the Tribunal it concerning the security situation in and around Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only not more than 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.
82 In 1516299 (Refugee) at [32]-[35], which was delivered in April 2016, the Tribunal used the same reasoning. Again, paragraph [54] of the Tribunal's reasons in the present case is set out below, marked up with underlining to show the differences between those reasons and the Tribunal's reasoning in 1516299 (Refugee), using the same system of marking-up:
[54] The Tribunal accepts that, as indicated by the applicant, there continues to be ongoing incidents of sectarian violence in FATA, including in Kurram Agency where the applicant applicant's home village of [redacted] is from, as detailed in the country information discussed including as set out in the representative's submission. This includes an located. The IED attack in a clothes market in Parachinar on 13 December 2015 in which killed at least 25 people were killed and over 70 injured, as highlighted by the applicant in and his oral representative, is evidence to the Tribunal.of this. 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 recent terrorist attack 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 the attack on 13 December 2015, the first such attack in Parachinar for almost two and a half years year, 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 or 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 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 with Turi connections 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 and around Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only not more than 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.
83 Having regard to the obvious similarity between [54] (and to a lesser extent [55]-[56]) of the Tribunal's reasons in the present case with passages in earlier Tribunal decisions, one can only infer that [54] was cut and pasted by the Tribunal member in this case, from an earlier Tribunal decision or perhaps from a template, with some tinkering at the edges. The Minister accepted that the Tribunal engaged in cutting and pasting in relation to [54]-[56] of its reasons. .
84 The Minister submits, and I accept, that there is no general prohibition on the use of formulaic reasoning in administrative decision-making, relying on the remarks of Gleeson J in Plaintiff M1/2021 at [111] where her Honour said:
The mere fact that a decision maker appears to have used a template, or copied the language of another decision maker, is not necessarily indicative of a denial of procedural fairness or some other jurisdictional error. Template reasons may evidence a sufficient intellectual process of genuine engagement with relevant claims or issues presented by claims in the circumstances of the particular case.
85 The Minister argues that the Tribunal's cutting and pasting might have showed error if it indicated that the Tribunal did not bring an independent mind to the issues before it, citing MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [52]-[53] (Tracey, Murphy and Mortimer JJ (as her Honour then was)). The Minister contends, however, that here the Tribunal copied findings based on country information about circumstances in Pakistan, not credibility findings, and the Tribunal brought its mind to the reasoning because it changed the words from that of the earlier decisions, and it tailored necessary parts to deal with the evidence and submissions before it. Essentially, the Minister argues that the Tribunal made enough changes to the reasons it copied to indicate that it engaged with the appellant's submissions, considered those issues, and agreed with the earlier reasons, using them merely in order to save time. The Minister submits that the Tribunal's reasons show that, notwithstanding the cutting and pasting, it nevertheless brought an independent mind to the issues.
86 I do not accept the Minister's contentions.
87 First, I accept that the substantially copied reasoning at [54]-[56] do not involve adverse credibility findings, but that does not show that the copied reasoning is unimportant. The Minister accepted that [54]-[56] were critical paragraphs in the Tribunal's reasoning to its conclusion that the appellant would face only a remote chance of suffering serious harm on return to Kurram Agency. The Tribunal's crucial finding that the December 2015 bomb attack in Kurram Agency did not indicate an increased risk of sectarian violence in that area was almost entirely copied from an earlier Tribunal decision.
88 Second, there is nothing in the changes the Tribunal made to the copied reasons which shows that it considered and evaluated the claim raised by the relevant material. That is one of the problems with copying reasons from another decision in respect of a similarly situated claimant. Here, the appellant's submissions and evidence raised a claim based on the specific threat by LeJ, a claim which was (seemingly) not made in the decision that the Tribunal copied. It seems likely that, similarly to the position in SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146 at [21] (Siopis, Perram and Davies JJ), in cutting and pasting from the earlier decision the Tribunal member accidentally overlooked the claim raised by the relevant material.
89 Third, the issue in the appeal is whether the Tribunal considered and dealt with the appellant's claim raised by the relevant material. The Minister's submission that the copied reasons do not show that Tribunal member did not bring an independent mind to the issues in the case does not really grapple with that. The Tribunal's critical reasoning is at [54]-[56], and that largely copied reasoning does not deal with the claim raised by the relevant material.
90 In any event, I do not accept that the changes the Tribunal member made to the copied material shows that he brought an independent mind to the issues before the Tribunal. The changes the member made to the copied reasons were limited, and of no real significance. In Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 408 ALR 460 at [16] (Thawley, McElwaine and Hespe JJ) the Court was not persuaded that the Tribunal showed independent consideration of the issues before it despite the fact that in that case the Tribunal member had materially reordered the paragraphs copied. I take the same view here in relation to the insignificant changes the member made to the copied material.
91 Fourth, the Minister's submission that the Tribunal brought an independent mind to the issues in the case has no basis in the evidence. There is no direct evidence to show that the Tribunal member considered the reasons from an earlier decision, reached the view that those reasons coincided with the view that the member had reached following his consideration and evaluation of the appellant's evidence and submissions, and copied the relevant paragraphs for reasons of efficiency and time-saving. The Minister's proposition can only be established by inference (MZZZW at [74]-[75]), and that is not an inference I would draw having regard to the Tribunal's reasons as a whole.
92 Having regard to those matters it is appropriate to infer that in reaching its finding that the appellant did not face a real chance of suffering serious harm on return to Kurram Agency the Tribunal overlooked the claim raised by the relevant material, and failed to consider and evaluate it. It made the relevant finding without having a proper awareness and understanding of the purport of the relevant claim and its possible significance, and therefore without a proper appreciation of the matters that might bear upon its finding on the way to its conclusion.
93 I consider the Tribunal's error to have been 'material' in the sense discussed in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ). The test for materiality is whether there is a realistic possibility that the Tribunal's decision could have been different had the Tribunal not made the relevant error. That is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined", which is an undemanding standard: Nathanson v Minister for Home Affairs [2022] HCA 26 at [33] per Kiefel CJ, Keane and Gleeson JJ, at [15] per Gageler J.
94 There is a realistic possibility that the Tribunal's decision could have been different had it understood and accepted the appellant's claim that he faced a real chance of suffering serious harm on return to Kurram Agency because LeJ had perpetrated a major attack only a month earlier, had specifically threatened further attacks in that area unless Pakistani Shias stopped fighting in Syria and they had not, and that LeJ might strike in Kurram Agency again as it had threatened. If that was accepted there is a realistic possibility that the Tribunal would have decided that there was a real chance the appellant would suffer serious harm upon return to Kurram Agency, and the result of his application for protection could have been different.