MZAJC v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant pay the respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 The appellant raises one issue on this appeal, namely, whether the Federal Circuit Court erred in deciding that the Tribunal had not failed to consider a claim fairly raised on the material before it. The appellant contends that a claim arose on the materials before the Tribunal to the effect that he faced a real chance of serious or significant harm by reason of being in close proximity to high-profile members of the Awami National Party, the ANP. The appellant is a citizen of Pakistan. He arrived in Australia on 26 June 2011 as the holder of a student visa. The appellant applied for a protection visa on 11 July 2012. He claimed that he was an active participant of the ANP and the student wing of the ANP, the PKSF, prior to arriving in Australia. He also claimed that he had received threats from certain groups associated with the Taliban as a result of his involvement with these organisations. 2 The appellant stated that he and his family were actively involved in the ANP and were threatened and attacked by the Taliban for these reasons and that a grenade exploded in his family's house in Pakistan as a result of their involvement with the ANP. He claimed that this occurred after he had arrived in Australia. The appellant submitted country information to the effect that there was substantial generalised violence occurring in the district in which he lived and that attacks on high-level ANP members resulted in incidental harm being suffered by those physically close to high-level ANP members or who happened to be attending public events at which ANP members were also present. His application was refused by a delegate of the respondent on 16 November 2012, and he applied for review to the Tribunal. The Tribunal affirmed the decision under review on 30 June 2014. 3 The Tribunal accepted at a general level that the appellant may have been involved with the PSF, but did not accept that he had joined the PSF in 2005, nor that he was an officeholder in the PSF between 2006 and 2009, nor that he had worked for an ANP candidate in 2008. The Tribunal identified inconsistencies between the appellant's account and his documentary evidence and found the appellant had limited knowledge about the structure and organisation of the PSF as well as limited knowledge about the candidate he claimed to have worked for. 4 The Tribunal rejected a number of other claims made by the appellant concerning receipt of a threatening letter in 2009, an attack in 2009 and receipt of threatening phone calls. It did not accept his family had been attacked in 2013 as he claimed, nor did it accept the appellant had been involved in the PSF or would be involved if he were to return to Pakistan. Although the Tribunal accepted that the appellant might support the ANP in the future, it found that there was a remote risk of any serious harm in the appellant's home area occurring as a result of being a supporter or member of the ANP. 5 The appellant applied to the Federal Circuit Court on 31 July 2014 for judicial review of the Tribunal's decision. He identified four grounds of review. The fourth ground was not pressed by him before the Federal Circuit Court, and so in making its decision the court dealt with the first three grounds of review, finding each of them were not made out. The court dismissed the first two grounds of review, and there is no appeal from those dismissals. The third ground of review is the one which gives rise to the issue on the appeal. The appellant contended the Tribunal failed to consider a claim which arose on the materials before it, even though not clearly articulated. In paragraph [1] above I have described how that claim was put.. Accepting that there was no consideration by the Tribunal of this matter, the Federal Circuit Court rejected the contention the Tribunal was required to consider the claim. At [31] of its reasons, the Federal Circuit Court stated: The applicant's claim was consistently framed as a claim to fear harm due to his own political involvement, not due to his physical proximity to others. 6 Referring to the approach set out by Allsop J, as his Honour then was, in NAVK vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], the Federal Circuit Court also said at [33]: The unarticulated claim did not "arise tolerably clearly from the material" before the Tribunal in the factual circumstances of this case. 7 The appellant filed a notice of appeal to this court on 13 October 2015 on one ground: The Federal Circuit Court erred in failing to find that the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) was affected by jurisdictional error on the ground that the Tribunal failed to deal with a claim that arose on the materials before the Tribunal. Particulars i. The Tribunal found that high profile members of the ANP have been targeted by militants because of their anti-Taliban stance. ii. The country information supporting this finding indicated that these attacks were undertaken in a way that resulted in the death and injury of persons that were physically proximate to those high profile ANP members at the time of the attack (ie, they were attacks that caused collateral harm to those nearby). iii. The appellant claimed that he had associated with high profile members of the ANP, and that if returned to Pakistan, he would continue to associate with high profile members of the ANP. iv. The Tribunal found that the appellant may support the ANP if returned to Pakistan; implicit in this finding is a finding that the appellant would associate with high profile ANP members and thereby be physically proximate to high profile ANP members. v. In these circumstances, a claim arose on the materials before the Tribunal to the effect that the appellant faced a real risk or real chance of serious or significant harm if returned to Pakistan, by reason of the fact that he was likely to be exposed to "collateral" harm by reason of his association with high profile ANP members. vi. The Tribunal did not address this claim in its statement of reasons, from which it is to be inferred that the Tribunal did not consider this claim. 8 On the appeal, the appellant accepted the approach set out by Allsop J in NAVK was applicable, and he was correct to do so. The appellant's submissions emphasised that the Tribunal was an experienced and expert Tribunal and, therefore, what was reasonable for the Tribunal to appreciate should be seen in that light. I accept that proposition to the extent that it informs what knowledge and experience a reasonable Tribunal member can be affixed with in her or his capacity to appreciate a claim. The appellant submitted that because the Tribunal had found he may support the ANP on return to his district in Pakistan (see the Tribunal's reasons at [55], it was implicit in this finding that the Tribunal accepted the appellant may engage in the kind of activity in which he had engaged in the past, and that past activity included, as the Tribunal had found at [28] of its reasons, actively supporting the ANP during the 2008 elections. 9 If, the appellant submitted, he actively supported the ANP, it is likely he could be in frequent and close proximity to higher profile members of that political party by attending political gatherings, funerals and other public events. Given the Tribunal had accepted in its findings that high-profile members of the ANP had been targeted and such targeting resulted in death and injury of non-high-profile members and those who simply happened to be close by to those being targeted, the appellant submitted a claim of the kind he now articulated fairly arose on the material before the Tribunal and had not been considered. 10 I do not accept the Federal Circuit Court erred in its treatment of this ground of review. The Federal Circuit Court was correct to find that no such claim fairly or clearly arose on the material. There was insufficient material from which, adapting the language of Allsop J in NAVK, a Tribunal acting reasonably could have appreciated the existence of the claim. In particular, there was nothing put on the appellant's behalf to the Tribunal which could or should have caused the Tribunal to appreciate that such a claim was being made or arose. The Tribunal is not required to divine a claim out of country information, nor to apply its own analytical skills to articulate claims that a person might conceivably make. 11 Rather, in my opinion, what is occurring here is that after the fact of the Tribunal's decision, a possible process of reasoning has been constructed, which might flow from one of the Tribunal's findings in favour of the applicant. That is not the approach that authorities such as NAVK require this court to adopt. The assessment of what a Tribunal might reasonably be expected to appreciate should be undertaken by a reviewing court as best it can without the advantage of hindsight. The reviewing court will always have before it a formulation of the claim that was "not appreciated", but the court should be astute not to scrutinise the Tribunal's reasons, nor the material before the Tribunal, too assiduously with that perspective of hindsight. 12 For example, Counsel's drawing together of country information such as that appearing at [12] and [50] of the Tribunal's reasons with two findings made by the Tribunal, namely, those at [26] and [31] of its reasons concerning attendance at funeral, is, in my opinion, the retrospective piecing together of a possible claim that might have been made. That is a different exercise from assessing wheher a Tribunal member should reasonably have appreciated such a claim was made or arose on the material at the time of its review. These observations are particularly applicable, in my opinion, where, as here, the appellant did no more than file large volumes of country information with the Tribunal, with no submissions attached to them nor directing the Tribunal's attention to particular parts of the information or particular passages. Nor has it been submitted on the appeal that the appellant gave any evidence himself that should or could have put the Tribunal on notice of a different kind of claim such as the one now being articulated. 13 The country information to which the appellant's counsel took the court on the appeal was put before the Tribunal in the context of the appellant's claims that he was himself actively involved in the ANP, had worked for a candidate and was closely involved in ANP activities. In his own words in his protection visa application, he described himself as an activist with the ANP. That material was assessed on that basis, and, in my opinion, the Tribunal could not reasonably have appreciated there was a claim of a different kind implicit in the considerable amount of country information that was simply filed with the Tribunal on behalf of the applicant. 14 In any event, to the extent that there was a possible exposure of the appellant on return to the risk of death or serious injury from indiscriminate terror attacks, I am satisfied the Tribunal dealt with and considered risks to the appellant both for convention and non-convention reasons in the way the law required it to do. The Tribunal could not reasonably have appreciated the claim as now carefully articulated, but in substance it did assess, in any event, the level of risk to the appellant from indiscriminate and, as the appellant's counsel put it, arbitrary and crude terrorism and violence. It reached its own views about the level of that risk at [55] of its reasons, which was a matter for it. 15 For those reasons, the appeal must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.