CGA15 v Minister for Home Affairs

Solicitor for the Second Respondent: The Second Respondent filed a submitting notice

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES: MURPHY, MORTIMER AND O'CALLAGHAN JJ DATE OF ORDER: 15 MARCH 2019

1. The Appellant have leave to file an amended notice of appeal.
2. The appeal be allowed.
3. The orders made by the Federal Circuit Court on 7 June 2018 be set aside and, in lieu thereof, the Court makes the following orders: (a) an order in the nature of certiorari to quash the decision of the Administrative Appeals Tribunal dated 28 September 2015; (b) an order in the nature of mandamus requiring the Administrative Appeals Tribunal to re-determine according to law the application for review of the decision of the delegate of the First Respondent dated 8 September 2014; (c) there be no order as to costs of the proceeding before Federal Circuit Court; and (d) the First Respondent pay the Appellant's costs of the appeal.
4. The parties have liberty to file short submissions in relation to costs, within seven days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

introduction 1 This is an appeal from a decision of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal): see CGA15 v Minister for Immigration & Another [2018] FCCA 1450. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (Minister), to refuse to grant the appellant a Protection (Class XA) Visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Act). 2 The appellant is a 37 year old citizen of Pakistan of Pashtun ethnicity and Shia Muslim faith. He is a member of the Turi/Bengesh tribe and lived in Parachinar in the Kurram Agency, Pakistan, prior to fleeing to Australia. He claims that if returned to Pakistan he faces a real chance of suffering serious harm at the hands of militant Sunni Muslim groups such as the Taliban and Tehrik-i-Taliban (TTP) (collectively, the Taliban) on the basis of his ethnicity (as a Pashtun of the Turi/Bangesh tribe), religion (Shia) or actual or imputed anti-Taliban political opinion. 3 The Tribunal accepted that there is a real chance the appellant will face serious or significant harm if returned to his home region in the Kurram Agency but found that there was not a real chance that, as a Shia, he would face such harm in cities outside that region such as Islamabad or Rawalpindi. The Tribunal concluded that it was reasonable for the appellant to relocate to such cities and that he therefore did not satisfy the criteria for a protection visa under s 36(2)(a) or (2)(aa) of the Act. 4 The appellant advances two grounds of appeal, one of which requires leave as it was not advanced before the Court below. For the reasons we explain, we consider it appropriate to grant leave to advance the new ground and to allow the appeal on that ground. In our view the Tribunal engaged in a flawed statistical analysis in reaching the conclusion that the appellant would not be at risk of harm as a Shia in Islamabad or Rawalpindi, and its decision is affected by jurisdictional error. The other ground of appeal should be dismissed.

The Facts 5 The appellant arrived in Australia by boat on 23 June 2012. He was granted a bridging visa and released into the community on 18 October 2012. He applied for a protection visa on 29 November 2012. In a statutory declaration accompanying his application he made claims which may be broadly summarised as follows: (a) he is from a village in Parachinar in Kurrum Agency, in what was the Federally Administered Tribal Areas in Pakistan. He has worked on his family's farm since he was 10 or 11 and in 1992 he started driving a taxi to supplement his income from working on the farm; (b) since 2007 there has been conflict between Sunni and Shia Muslims in the area of Parachinar, and it is "very dangerous". Sunnis support the Taliban and in Parachinar the Taliban has been responsible for many kidnappings, suicide bombs and other bombs targeting Shias. The Taliban periodically blocked the roads around Parachinar including the only road from Parachinar to Peshawar and began capturing, kidnapping and killing people on these roads as well as stealing food and other supplies. They targeted Shias in this regard; (c) in June 2010 the Taliban stopped a taxi he was driving on the road from Parachinar to Peshawar. They forced him and his two passengers from the car and beat them. He was kidnapped and locked in a room with his feet chained together, and threatened with death if his family did not pay a ransom. He was held by the Taliban for about one month until his family paid the ransom to secure his release; (d) in October 2010 two of his nephews were killed in a Taliban mortar attack while they were waiting in the city square for a car to take them to school. They were attacked because they were Shias who were attending school; (e) in 17 November 2010 a missile launched by the Taliban landed on his house, seriously injuring his niece. In the period before the missile attack he and other Shia households had received letters from the Taliban telling them to leave; (f) after that the Taliban continued to attack his village by way of suicide bombs and other bombs and also by acid throwing attacks; and (g) after his niece was injured he started to think about leaving Pakistan and he obtained a passport and did so in 2010. 6 The appellant claims that there is no other safe place for him in Pakistan and that if returned to that country he will continue to be at risk due to being a Shia. He says that there are bomb attacks in many different cities in Pakistan in which Shias are killed, including bomb blasts and killings of Shias in large cities such as Islamabad and Karachi. 7 On 8 September 2014 a delegate of the Minister refused the appellant's application for a protection visa. The delegate accepted that the appellant faced a real chance of suffering serious or significant harm in his home region of Kurram Agency but found that he could relocate and live safely in large cities in Pakistan such as Islamabad, Rawalpindi and Karachi, and therefore did not meet the criteria in the Act for a protection visa.

The Tribunal decision 8 On 19 September 2014 the appellant applied to the Refugee Review Tribunal (which was later subsumed into the Tribunal) for review of the delegate's decision. 9 On 28 September 2015 the Tribunal decided to affirm the delegate's decision not to grant him a protection visa. It is unnecessary to recount the Tribunal's reasons in detail as only a few aspects of the decision are relevant in the appeal. It suffices to note that the Tribunal had doubts about the appellant's credibility and doubted that he was kidnapped by the Taliban in 2010. While accepting that his two nephews were killed and his niece was injured, it considered those attacks to be random rather than targeted. Even so, the Tribunal accepted that there were a series of significant and violent incidents in the Kurram Agency involving the Taliban, Shias and Sunnis between 2007 and 2012, and it was satisfied that the conflict was ongoing and that Shias continued to be targeted due to their religion. It concluded that there was a real chance that the appellant would suffer serious or significant harm in Parachinar because of his Shia religion. 10 The Tribunal found, however, that there was no real chance or real risk of the appellant suffering serious or significant harm in Islamabad or Rawalpindi and it was reasonable for him to relocate to those cities. On that basis the Tribunal concluded that Australia did not have protection obligations towards him. In reaching that conclusion the Tribunal largely relied on two pieces of country information: a Department of Foreign Affairs and Trade report titled "DFAT Country Report - Pakistan" dated 14 April 2015 (DFAT Country Report), and a Department of Foreign Affairs and Trade report titled "DFAT Thematic Report - Shias in Pakistan" dated 14 April 2015 (DFAT Thematic Report), in which DFAT provided its opinion as to the risks that Shias were likely to face on return to Pakistan.

The Application to the Federal Circuit Court 11 On 29 October 2015 the appellant applied to the Federal Circuit Court seeking judicial review of the Tribunal's decision. 12 Relevantly to the appeal, the Further Amended Application raised Ground 1 as follows: The Second Respondent (or "the Tribunal") erred in the exercise of its jurisdiction or failed to exercise its jurisdiction to review the decision of a delegate of the First Respondent, by misapplying the "real chance" and "real risk" tests in assessing whether the Applicant could safely relocate to an area of Pakistan outside Parachinar and FATA, such as Islamabad or Rawalpindi. Particulars (a) The Applicant made various claims to face a real chance of serious harm and/or real risk of significant harm in Pakistan at the hands of militant Sunni groups such as the Taliban and TTP on the basis of his ethnicity (Pashtun of the Turi/Bangesh tribe), religion (Shia) or actual or imputed (anti-Taliban/anti TTP) political opinion. (b) The Tribunal accepted that the Applicant had been kidnapped by the Taliban, that his nephews had been killed in a mortar attack and his niece had been injured in a missile attack by the Taliban and that the Taliban and associated groups have waged a campaign of violence against Shias throughout Pakistan, in particular in the home region of the Applicant. (c) However, the Tribunal found that Shias are "relatively" safe in cities outside Parachinar and FATA, such as Islamabad or Rawalpindi, compared to the Applicant's home area in the Kurram Agency. In particular, the Tribunal found that: (i) "there were other places which were considerably safer…such as Lahore, Islamabad or Rawalpindi"; (ii) "Islamabad and Rawalpindi are relatively free from politically motivated terrorist and sectarian violence"; (iii) "the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence"; (iv) "in most cases there are options for members of religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan; (v) "given the relatively low levels of sectarian violence in Islamabad and Rawalpindi…the Tribunal is satisfied that the chance of the Applicant being harmed in an act of targeted sectarian or generalised violence in Islamabad or Rawalpindi is remote"; and (vi) "many large urban areas such as Islamabad and Rawalpindi are home to mixed communities and offer greater opportunities for employment, access to services and a higher level of protection." (d) Based in part on these findings, the Tribunal concluded that the applicant did not satisfy the criteria in s 36(2)(a) of the Migration Act 1958 ("the Act"), in that there was not a real chance of (sic) that the Applicant would face serious harm by virtue of his religion, ethnicity or actual or imputed political opinion. (e) The test of whether there is a real chance that an Applicant will suffer harm in a place is not a relative one; it is not determinative whether the risk in one place is less severe than another place. What matters is the actual level of risk in any particular place. (f) Based in part upon the findings set out in particular (c), the Tribunal also concluded that the applicant did not satisfy the criteria in s 36(2)(aa) of the Act, in that there was not a real risk of significant harm to the applicant. The Tribunal thereby made a jurisdictional error. 13 For this ground the appellant relied on passages in the Tribunal's decision that used relative language when describing the safety of different areas in Pakistan, and submitted that the Tribunal's use of such language demonstrated it did not correctly apply the real chance test. He also pointed to the use of relative language in the DFAT Country Report and the DFAT Thematic Report, upon which the Tribunal's decision was based. He relied on the decision in CID15 v Minister for Immigration and Border Protection [2017] FCA 780 (CID15) (Moshinsky J) where the Tribunal relied upon the same DFAT reports as in the present case, and where Moshinsky J noted that the real chance of harm occurring in an area is not to be determined relative to other areas. His Honour held (at [10]): In my view, on the true construction of the reasons, the Tribunal was comparing the safety of different areas within Pakistan. Putting the matter simply, the Tribunal's finding was to the effect that certain urban areas were safer than Kurram Agency, rather than that they were safe. Considering the Tribunal's reasons as a whole, the Tribunal adopted a relative rather than an objective approach in applying the 'real chance' test in the context of the relocation issue. This amounted to a jurisdictional error. The appellant submitted that the Tribunal made an error of a similar nature in the present case. 14 The primary judge did not accept that the Tribunal fell into jurisdictional error as alleged and dismissed the application for judicial review. His Honour held (at [22]-[24]): …Whether the statements at issue constitute a misapplication of the real chance test is a matter of construction of the reasons. In CID15, Moshinsky J found that a statement in the reasons for the decision of the Tribunal that introduced the DFAT reports set a context whereby all the following findings of the Tribunal in relation to relocation implicitly made comparisons between areas for relocation. While the Tribunal appears to make a relative evaluation of safety in [37] of its decision, I do not consider that this statement infects the remainder of the decision with implicit relative comparisons. Where relative observations are made, these are at each instance qualified with an objective conclusion on risk. This can be distinguished from CID15. Many of the statements at issue, according to the Applicant's Further Amended Application, occur in the context of [40] of the Tribunal's decision record. They appear to be made as part of a paragraph detailing the independent country evidence before the Tribunal on safety in Pakistan. These statements do not seem to be linked to the Tribunal's consideration of the Applicant's claims in regards to relocation that which commences at [43].

The appeal 15 The notice of appeal advanced two grounds of appeal, but the appellant abandoned Ground 2 of the appeal before the hearing. He seeks leave to add a new Ground 3 which he did not advance before the Federal Circuit Court.

Ground 1 16 Ground 1 of the appeal alleges that the primary judge made an appealable error by dismissing ground 1 of the application for judicial review (set out above at [12]). 17 By this ground the appellant reiterates the arguments he advanced before the Federal Circuit Court and again relies on the decision in CID15. In that decision Moshinsky J described the Tribunal's reasoning in the following terms (at [6]): The Tribunal went on to assess whether it would be reasonable in all the circumstances for the appellant to relocate to some other part of Pakistan where there was no appreciable risk of the occurrence of the feared persecution. In considering this issue, the Tribunal referred to a Department of Foreign Affairs and Trade (DFAT) assessment that the security situation in Islamabad (and Lahore) was "relatively free" from violence, and stated that, in many cases, there were options available for members of most ethnic and religious minorities, including Shias, to relocate to areas of "relative safety" elsewhere in Pakistan. The Tribunal concluded on this issue that the appellant could relocate to an urban centre, such as Islamabad or Rawalpindi, where he would not face a real chance of serious harm because of his ethnicity, Shia religious identity or imputed political opinion. 18 The appellant argues that the relevant country information before the Tribunal in CID15, and the Tribunal's reasoning, is identical with the present case, and that the Tribunal made a similar error. He contends that on a fair reading of the Tribunal's reasons it applied a relative, rather than an objective test, when considering whether he faced a real chance of serious harm if he was to relocate to Islamabad or Rawalpindi. 19 In particular the appellant focuses on the Tribunal's reasons at [40] where the Tribunal said: The Tribunal has had regard to the advice from the Department of Foreign Affairs and Trade (DFAT) which has reported that Islamabad and Rawalpindi are relatively free from politically motivated terrorist and sectarian violence states. DFAT has reported that the population of Islamabad has grown to almost two million and it has a relatively high population of internal migrants, many from conflict areas in the FATA, Khyber Pakhtunkhwa and Balochistan. The Tribunal has also considered the UNHCR Guidelines in relation to Shias in Pakistan. The Tribunal accepts that members of the Shia community, such as those in areas where Taliban-affiliated groups are active, such as the Northwest of Pakistan and urban centres, may "depending on the individual circumstances of the case, be in need of international refugee protection". However, the independent evidence before the Tribunal, discussed with the applicant during the hearing, indicates that the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence, particularly outside of FATA, Khyber Pakhtunkwha and Balochistan. Freedom of movement is also guaranteed by the Constitution and DFAT has noted that in most cases there are options for members of religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan. DFAT assess in general (other than in some areas, like the applicant's region), there is a low risk of sectarian violence for Shias by militant groups and attacks against Ashura processions pose the greatest risk for most Shias. However, given the size and yearly frequency and the violence is mitigated by significant efforts of authorities to process processional routes and protection DFAT assess the overall risk to be low. DFAT further assesses the overall levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan and sectarian violence has declined since the 1990s. The Tribunal gives weight to the fact that according to the Pakistan Institute of Peace Studies over 85 per cent of the recorded incidents of sectarian violence in Pakistan occurred in the applicant's home area, Karachi, Quetta and Gilgit. (Emphasis added.) 20 Although the appellant accepts that the Tribunal expressed its ultimate conclusion regarding the risk that he will face sectarian violence in appropriately objective terms, he says its actual reasoning shows that it did not correctly understand the test. In support of this contention he points to several instances where he contends the Tribunal used a relative rather than an objective measure of safety, by stating: (a) it informed the appellant that there were other places which were "considerably safer" than his home region and queried whether he considered going to another place such as Lahore, Islamabad or Rawalpindi (at [37]); (b) that Islamabad and Rawalpindi were "relatively free" from terrorism and sectarian violence (at [40]); (c) that there are a number of areas within the country that are "relatively free" from the threat of various forms of violence (at [40]); (d) that levels of sectarian violence in Punjab are "lower relative to the rest of Pakistan" and sectarian violence has declined since the 1990s (at [40]); and (e) that the appellant could relocate safely to Islamabad or Rawalpindi "…given the relatively low levels of sectarian violence" in those cities (at [43]). 21 The appellant also argues that the DFAT reports upon which the Tribunal relied express the level of violence in different parts of Pakistan in relative terms. At [40] the Tribunal footnotes the DFAT Thematic Report at [4.22] which states that "[o]verall, levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan". The appellant says that the Tribunal's reasons pick up the relative language used by DFAT which strengthens the basis for a conclusion that the Tribunal was applying a relative rather than objective test.

Determination 22 To satisfy the refugee criterion under s 36(2)(a) of the Act the appellant was required to show that he has a "well-founded" fear of persecution for a Convention reason if he returns to his country of origin. A fear of persecution will be "well-founded" if there is a "real chance" that the applicant will suffer the claimed persecution in the reasonably foreseeable future. A "real chance" is a prospect that is not "remote" or "far-fetched": Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J). 23 The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J. 24 The focus of Ground 1 is the Tribunal's reasoning behind its conclusion that the appellant can safely relocate to Islamabad or Rawalpindi. His argument is not directed to challenging whether it was open to the Tribunal to reach the conclusion that he could safely relocate to Islamabad or Rawalpindi; rather it focuses on whether the Tribunal applied the correct test. He seeks to draw a parallel between the Tribunal's reasoning in the present case with the reasoning found to be flawed in CID15. 25 The question as to whether the Tribunal's reasons disclose a misunderstanding or misapplication of the "real chance" test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The Court's focus must be whether having regard to the Tribunal's reasons in this case it is more probable than not that the Tribunal misunderstood or misapplied the test. The appellant has the onus to show jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [4] and [41] (SZMTA) (Bell, Gageler and Keane JJ). 26 The mere fact that a decision-maker expresses his or her ultimate conclusions in terms which reflect the visa criterion (as the Tribunal did in this case) does not definitively show that it applied the correct test. In many cases the substantive part of the decision-maker's reasons, rather than recitations in the introduction or conclusions, will be a more reliable guide as to whether the Tribunal applied the correct test. It is the reality not the appearance which matters: SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723; [2003] FCA 1387 at [30] (Mansfield J); see also Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 (Kirby J). 27 For the reasons we now explain, we are not satisfied on the balance of probabilities that the Tribunal fell into error as alleged and we can see no appealable error in the primary judge's rejection of Ground 1. Fundamentally this is because when the Tribunal's reasons are read fairly and as a whole we are not persuaded that the Tribunal assessed the risk of harm that the appellant will face on a relative rather than an objective basis. 28 It is central to our view that although the Tribunal expressed some findings as to the risk of harm the appellant would face in relative terms, it made other significant findings as to that risk in plainly objective terms. Importantly, the Tribunal found the following (at [40]): …in general (other than in some areas, like the applicant's region), there is a low risk of sectarian violence for Shias by militant groups and attacks against Ashura processions pose the greatest risk for most Shias. However, given the size and yearly frequency and the violence is mitigated by significant efforts of authorities to process processional routes and protection DFAT assesses the overall risk to be low. (Emphasis added.) 29 The Tribunal's statement that the overall risk in areas outside the appellant's home region is objectively low (as distinct from relatively low) reflects the information in the DFAT Thematic Report which said (at [4.4]), "[i]n general, DFAT assesses there is a low risk of sectarian violence for Shias" and (at [4.5]) that while attacks against Ashura processions pose the greatest risk for most Shias, "DFAT assesses the overall risk to be low". The Tribunal's finding at [40] is an important difference between the Tribunal's findings in the present case and those in CID15. In our view the present case can be distinguished from CID15. 30 The Tribunal also made findings that the risk of harm was objectively low in other parts of its decision. For example, the Tribunal said: (a) (at [41]) that terrorism related incidents and suicide attacks in those cities are sporadic and evidence indicates there is an increasing presence of the Taliban throughout Pakistan including in large urban areas, "[h]owever having regard to the number of attacks the Tribunal is satisfied the risk of the applicant being harmed in the context of these attacks is low"; (b) (at [43]) that attacks in Islamabad and Rawalpindi are mainly on Shia mosques and religious festivals, but "[l]evels of communal violence between Shias and Sunnis are reportedly quite low throughout the country"; and (c) (at [48)] that it accepted that there have been some violent incidents in Islamabad and Rawalpindi, "but the Tribunal is not satisfied that the level of sectarian or generalised violence in these places is such that there is anything other than a remote chance that the applicant will be the victim of violence in such places." 31 Further, the country information upon which the Tribunal relied does not assist the appellant in the way he argues. In support of the key conclusion (at [40]) that other than in some areas such as the appellant's home area there is a "low risk of sectarian violence for Shias by militant groups", the Tribunal relied on the DFAT Thematic Report (at [4.4] and [4.5]). In both of those paragraphs DFAT assessed the risk of harm to Shias in objective terms. Counsel for the appellant accepted that the DFAT Thematic Report assesses that, in general, there is a low risk of sectarian violence against Shias perpetrated by militant groups, and that levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan, but argued that properly understood the assessment in Islamabad and Rawalpindi was relative. In our view while the country information before the Tribunal contained some relative assessments as to the risk of harm, we do not accept that the Tribunal's objective findings are only supported by country information which is expressed in relative terms. 32 On a fair reading we do not consider the Tribunal's use of relative language at some points of its decision supersedes the objective findings it made, in particular its finding (at [40]) that outside of areas such as the appellant's home region the risk of generalised and sectarian violence for Shias is objectively low. Unlike the decision in CID15 the Tribunal did more than merely recite the proper test in its conclusion; it made substantive findings and engaged in reasoning such that we are not persuaded that it misunderstood or misapplied the test. 33 We are not satisfied that the Tribunal misunderstood the "real chance" test and Ground 1 of the appeal is not made out.

Whether leave should be granted 34 The appellant seeks leave to raise a new Ground 3. 35 In a case such as the present, where the proposed new ground could not possibly have been met by calling evidence in the hearing below, an appellate court has a discretion to permit an appellant to argue a new issue on appeal where it considers that it is expedient in the interests of justice to entertain the issue: Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). Generally speaking the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O'Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ). 36 There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]: The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law. See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68; [2014] FCA 686 at [55] (Flick J). 37 In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant's lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J). 38 All other relevant considerations in the present case point in favour of a grant of leave. First, the new ground raises a question of law. The facts are not in controversy and the issue involves the proper construction of the Tribunal's reasons. Second, having regard to the abandonment of Ground 2 the addition of the new ground will not involve any further sitting time. Third, the Minister does not contend that he will suffer any prejudice if leave is granted, whereas the prejudice suffered by the appellant may be significant if leave is refused. Fourth, and most importantly, not only do we consider that proposed new Ground 3 has merit; for the reasons we explain we consider this ground of appeal should succeed. In the circumstances we are satisfied that it is expedient in the interests of justice to grant leave to advance the new ground.

Ground 3 of the appeal 39 Ground 3 of the appeal concerns the Tribunal's conclusion that the appellant would not face a real chance of serious or significant harm if he relocated to Islamabad or Rawalpindi. Under this ground it is alleged: The FCC erred in not quashing the decision, albeit for reasons that were not advanced to it, on the basis that the decision of the Tribunal is affected by jurisdictional error because the Tribunal erred in relying on the population of Shias in Pakistan, rather than Shias in Islamabad-Rawalpindi in its evaluation of whether relocation to Islamabad-Rawalpindi was safe for the appellant. 40 The appellant contends that the Tribunal's reasoning process (at [43]), where it concluded that there was only a remote risk of harm to him in Islamabad or Rawalpindi, is flawed. In this paragraph the Tribunal said: The Tribunal has had regard to the applicant's claims regarding the potential for Islamic State to increase its presence in Pakistan which will result in further risk to him elsewhere in Pakistan. Whilst the Tribunal accepts that Islamic State has made threats against Shias in Pakistan, the Tribunal considers that the potential for Islamic State to infiltrate or increase its presence in Pakistan remains extremely uncertain. The Tribunal considers that the applicant's claims in relation to the issue are highly speculative given the variables involved such as actions that may be taken by the Pakistan state, neighbouring countries or Western countries. The Tribunal also considers that the attacks in Rawalpindi and Islamabad are mainly on Shia mosques and religious festivals, as well as some attacks on government buildings, particularly in Islamabad. Levels of communal violence between Shias and Sunnis are reportedly quite low throughout the country. The Tribunal accepts that where the applicant is most likely at risk because he is a Shia is when he attends religious processions or is at a location where large numbers of Shias gather. However, as discussed above, the attacks that have taken place on those occasions are sporadic, and considered in the context of the size of the Shia population which is reportedly approximately one quarter of the population of almost 200 million people, the Tribunal regards the risk of the applicant suffering serious harm on that ground to be remote. Thus, given the relatively low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Islamabad or Rawalpindi is remote. The Tribunal is also not satisfied that the applicant will have to modify his religious practise in either of these places in order to avoid the harm he fears. In making this assessment, the Tribunal has considered and is aware of the failure of Pakistani authorities to prevent attacks on Shias and prevent extremist groups from operating. The Tribunal acknowledges the evidence in relation to this issue, but it does not alter the Tribunal's view as to the risk of him suffering serious harm in either Islamabad or Rawalpindi. (Emphasis added.) 41 The appellant relies upon the emphasised passage and argues that, while it is not impermissible for a decision-maker to engage in such a statistical analysis, the decision-maker must give close attention to the population over which the relevant risk is supposedly spread. He argues that in the relevant passage the Tribunal was addressing the possibility that the appellant might safely relocate to Islamabad or Rawalpindi, but engaged in a statistical analysis of the risk of sectarian violence in those cities by reference to the Shia population in the whole of Pakistan. He contends it was not open to the Tribunal to do so, and that the Tribunal's flawed analysis materially affected its conclusion as to the risk of harm the appellant would face if he relocated to Islamabad or Rawalpindi.

The Minister's submissions 42 The Minister accepts that the Tribunal's reasoning at [43] is a critical part of the decision but emphasises that the impugned passage cannot be read in isolation from the Tribunal's other findings, particularly at [40] and [41]. The Minister submits that the Tribunal's reasoning at [43] is not illogical or irrational. He says that the Tribunal found that "sporadic" attacks are made against Shia religious processions and at locations where large numbers of Shias gather (such as at Shia mosques) wherever that occurs across Pakistan, and argues that the Tribunal clearly accepted that such attacks might be made in Islamabad or Rawalpindi. 43 The Minister contends that, on a fair reading, the Tribunal concluded that both within Pakistan as a whole and in Islamabad or Rawalpindi the appellant is just one of many Shias, such that the risk of him suffering serious or significant harm is remote. In written submissions the Minister said: In this context, the Tribunal does not merely recognise that there are a large number of Shia across Pakistan as a whole (one quarter of 200 million). It recognises that there are a large number of Shia "in urban areas", which obviously includes Islamabad/Rawalpindi. In other words, whether the lens is zoomed in (to Islamabad/Rawalpindi) or out (to Pakistan as a whole), the Tribunal is observing that the applicant is one of many. In expressing its ultimate findings, the Tribunal appropriately focusses on Islamabad/Rawalpindi. It states that "given the relatively low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Islamabad or Rawalpindi is remote". 44 The Minister expanded on this submission in oral argument. First, he submits that the Tribunal's use of the phrase "and in urban areas" after its description of the "large number of Shia Muslims in Pakistan" is a conclusion about the Shia population in Pakistan overall and in cities such as Islamabad and Rawalpindi. In support of this argument the Minister seeks to rely on the Tribunal's statement (at [44]) that "DFAT knows that many large urban areas, such as Islamabad, are home to mixed communities" which he contends is consistent with the proposition that there is a large number of Shias in that city. The Minister submits that the meaning of the expression "mixed communities" in relation to Pakistan is a mix of Sunni and Shia Muslims. The Minister concedes, however, that at no point in the Tribunal's decision does it expressly make a finding as to how many Shias live in Islamabad, or what proportion Shias comprise of the population of that city. 45 The Minister also contends that, fairly read, the Tribunal found that there are large numbers of Shias in Islamabad and/or Rawalpindi, from which it was open for the Tribunal to infer that the risk that the appellant will suffer serious harm is low. The Minister accepts that there is a distinction between the proportional analysis (that Shias make up one quarter of Pakistan's population of 200 million) and the following sentence which refers only to "large numbers" of Shias "in Pakistan and urban areas" but the Minister argues that the critical sentence in the Tribunal's reasons is the next one. It states: Thus, given the relatively low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence is remote. He contends that this finding, which summarises the Tribunal's three reasons for concluding that the risk of harm to the appellant is remote, is relevantly a finding about number of Shias in Islamabad or Rawalpindi, not the proportion of Shias in the area. 46 The Minister argues that country information supports this factual conclusion and reasoning and relies on the DFAT Thematic Report (at [5.4]), which states: In many cases, there are options available for members of most ethnic and religious minorities, including Shias. Many large urban centres, such as Lahore and Islamabad, are home to mixed ethnic and religious communities. He also notes that DFAT Report states (at [5.5]) that there are Shia communities in Islamabad. 47 Further, the Minister argues that the Tribunal's analysis may be approached in another way. He contends that the Tribunal made two relevant findings: (a) that targeted sectarian or generalised attacks on Shias were sporadic; and (b) that the overall population of Shias was about one quarter of the overall population of Pakistan. He says that these two facts are a rational basis for the Tribunal to conclude that the risk of the appellant being seriously harmed by any attack on the basis of his Shia religion is low, regardless of the number or proportion of Shias in Islamabad. 48 Finally, the Minister seeks to rely upon the Tribunal's finding (at [40]) that cities such as Islamabad and Rawalpindi are areas of relative safety, and that the risk of violence is mitigated by significant protective efforts by the authorities. The Minister says that in combination with the Tribunal's findings that attacks on Shias are sporadic or infrequent, and noting that the question is one of "real chance" or "real risk", it was open to the Tribunal to rely on the reasoning that it did at [43].

Determination 49 As the Minister accepted, the critical part of the Tribunal's decision is [43]. That paragraph cannot be read in isolation from the Tribunal's earlier findings, but it pulls together the findings the Tribunal made over the preceding paragraphs, and identifies three reasons for the Tribunal's conclusion that the risk of the appellant being harmed in an act of targeted sectarian or generalised violence in Islamabad and Rawalpindi is remote. 50 While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned: see DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659; [2014] FCA 754 at [65]-[67] (Mansfield J); Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1 at [80]-[82] (McHugh J). In our view, if the Tribunal is to engage in this sort of statistical analysis, it must give careful attention to ensuring that it correctly assesses the population across which the relevant risk of serious or significant harm is said to be spread. 51 We are satisfied, on a fair reading of the Tribunal's decision, that it misunderstood and/or misapplied the "real chance" test. 52 The fundamental problem with the Tribunal's approach at [43] is that, while addressing the possibility that the appellant might safely relocate to Islamabad or Rawalpindi it engaged in a statistical analysis of the risk of serious harm that the appellant would face in Islamabad or Rawalpindi by reference to the Shia population across the whole of Pakistan. The Tribunal states that the appellant will "most likely be at risk because he is a Shia when he attends Shia religious processions or is at a location where large numbers of Shias gather". It then concludes that, having regard to the sporadic nature of the attacks and "considered in the context of the size of the Shia population which is reportedly approximately one quarter of the population of almost 200 million people", the risk of the appellant suffering harm on this ground is remote. 53 The problem with that approach includes that the Shia population of Pakistan will incorporate areas with a high proportion of Shias, such as Kurram Agency, and also areas with a much lower proportion. Understanding that Shias make up quarter of the population of Pakistan does not assist in understanding the proportion or number of Shias in Islamabad or Rawalpindi. There was no evidence before the Tribunal about how many Shias live in those cities, or what proportion Shias comprise of the population of those cities. There was also no evidence of what proportion of Shias attend the religious festivals and parades, nor indeed how many Shias attend them. We cannot accept that the conclusion that the appellant will face a remote risk of harm in those cities can reasonably be based on the fact that Shias make up quarter of Pakistan's population. 54 To reach a conclusion that the appellant faced a remote risk of serious harm in Islamabad and Rawalpindi based on such a statistical analysis required the Tribunal to, at least, engage with questions such as how many Shia live in those cities, what proportion Shias comprise of the population of those cities, how many Shias would attend religious processions and Shia mosques in those cities, and what statistical risk of harm those Shias faced. We have repeated the caution from previous authorities concerning the use of statistical analyses, but if a decision-maker decides to adopt such an approach, he or she must do so rationally. The statistical analysis in which the Tribunal engaged had no probative value to the question before the Tribunal; being whether the appellant will face a real chance or real risk of serious or significant harm in those cities. 55 Contrary to the Minister's submissions, on a fair reading of the Tribunal's decision we do not consider that it turned its mind to how many Shias live in Islamabad and Rawalpindi or what proportion they comprise of the overall population of those cities. We do not accept that the Tribunal's earlier remark that the population of Islamabad has grown to almost two million and has a relatively high proportion of internal migrants, says anything of any real use about the proportion of Shias. 56 Nor do we accept the Minister's submission that the Tribunal's reference to "large number of Shia Muslims in Pakistan and in urban areas" shows a proper basis for its conclusion. On the material before the Tribunal the population of Islamabad is almost two million people whereas the population for Pakistan as a whole is 200 million. On that basis, only about 1% of Pakistan's population lives in Islamabad. There is little or no basis in the evidence for a conclusion that a "large number" (whatever that means relevantly to the Tribunal's task) of Shia live in is Islamabad; nor do we think that on a fair reading of its decision the Tribunal made such a finding. 57 Relatedly the Tribunal's references to Islamabad and Rawalpindi being home to "mixed communities" and there being "Shia communities" in Islamabad does not advance the issue far. A Shia community or communities could be identified as having 100, 1,000, 10,000 or even more people. The passages to which the Minister refers say nothing about the size of the Shia community in Islamabad and Rawalpindi. 58 It is established that illogical reasoning by a decision-maker on the way to a final conclusion may establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132] (Crennan and Bell JJ); Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [54] (Wigney J); Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [151]-[153] (Robertson J). In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15) at [47] (Griffiths, Perry and Bromwich JJ) the Full Court said that illogicality or irrationality may be considered not only in relation to the end result, but also to fact finding which leads to the end result. 59 Before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was "material" to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 at [30]-[31] (Kiefel CJ, Gageler and Keane JJ); SZMTA at [2], [3], [48] and [49]. The appellant has the onus to show that the error is material: SZMTA at [4] and [41]. 60 We are satisfied that in the circumstances of present case the Tribunal's erroneous statistical analysis is material to its decision. That is, if not for the erroneous reasoning the Tribunal could realistically have reached a different decision. 61 The Tribunal's flawed statistical analysis is expressed as one of three reasons underpinning its conclusion that the chance that the appellant would face serious harm if he relocated to Islamabad or Rawalpindi is "remote". In our view it can be safely inferred that the analysis materially contributed to the Tribunal's conclusion in that regard. Where a decision-maker relies on intermingled findings or matters in coming to an ultimate conclusion and there is no proper basis for one of the findings, jurisdictional error may result: ARG15 at [74]. In our view the statistical analysis cannot easily be severed from the Tribunal's other reasons for the conclusion that the appellant faced only a remote chance of harm and it could realistically have resulted in the Tribunal reaching a different conclusion. 62 In turn the Tribunal's conclusion that the appellant will face only a remote risk of serious harm if he relocates to Islamabad or Rawalpindi was critical to the outcome of his application for a protection visa. The Tribunal accepts that there is a real chance or real risk that he will face serious or significant harm if returned to Parachinar or his home region of Upper Kurram. It is only on the basis of its finding that it would be reasonable for him to relocate to Islamabad or Rawalpindi, where it found the risk of such harm to be remote, that the Tribunal concluded he was not owed protection obligations and therefore did not satisfy the criterion in s 36(2)(a) or (2)(aa). In our view the Tribunal's error is material to its decision to refuse to grant the appellant a protection visa. 63 We allow Ground 3 of the appeal.

Conclusion 64 It is appropriate to set aside the orders of the Federal Circuit Court made on 7 June 2018, and in lieu thereof to make an order in the nature of certiorari to quash the decision of the Tribunal, and an order in the nature of mandamus requiring the Tribunal to re-determine the appellant's application for a protection visa according to law. 65 We are not aware of any reason why costs should not follow the event and we have made an order for the Minister to pay the appellant's costs of the appeal. Ordinarily we would also order that the Minister pay the costs of the hearing before the Federal Circuit Court, but before that Court the appellant did not advance the ground upon which he was successful in the appeal. In those circumstances we consider it is likely to be appropriate to make no order as to costs in relation to the Federal Circuit Court proceeding. We have made an order in those terms but grant liberty to the parties to make submissions in relation to costs should they contend a different result is appropriate, doing so within seven days. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Murphy, Mortimer and O'Callaghan.