FEDERAL COURT OF AUSTRALIA

MZAEU v Minister for Immigration and Border Protection [2016] FCAFC 100

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant is a citizen of Pakistan who arrived on Christmas Island on 7 January 2012. He is of the Shia Muslim faith and of Pashtun ethnicity. He applied for a Protection (Class XA) Visa on the ground that, if he were returned to Pakistan, he would be harmed by the Taliban, like Sunni extremist groups and other Sunnis because his ethnic group have refused to assist the Taliban and are in conflict with Sunnis in his area of the country.

2    A delegate of the first respondent (the Minister) decided that the delegate was not satisfied that the appellant was a person to whom Australia had protection obligations and refused to grant a protection visa. The appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision.

3    There have been two decisions of the Tribunal in relation to the appellant’s application for a protection visa. On each occasion, the Tribunal was constituted by the same Tribunal member. In the first decision (the First Tribunal Decision), the Tribunal found that the appellant was a credible witness and accepted that there was a real chance the appellant would suffer serious harm by reason of his religion and the adverse opinions imputed to him by the Taliban, like Sunni extremist groups and other Sunnis, who would wish to harm him if he were to return to the area from which he came. However, the Tribunal considered that it would be reasonable for the appellant to relocate to Karachi where (the Tribunal held) there was no appreciable risk of the occurrence of the feared persecution and where the appellant did not have a well-founded fear of persecution for a reason under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Convention). The Tribunal concluded that the decision under review should be affirmed.

4    The First Tribunal Decision was quashed by the Federal Circuit Court of Australia (the First Federal Circuit Court Decision). In brief terms, the Court held that the Tribunal had erred in considering the issue of the reasonableness of relocation by reference only to reasons under the Convention rather than by looking more generally at whether it was reasonable and practicable to relocate. A writ of mandamus was issued directing the Tribunal to determine the application for review according to law.

5    The Tribunal notified the appellant of the name of the member who would be hearing the matter on the second occasion (who was the same member as had heard the matter on the first occasion). A hearing took place before the Tribunal. The appellant did not object to the same member hearing the matter.

6    The Tribunal subsequently made a second decision in relation to the appellant (the Second Tribunal Decision). The Tribunal remained of the view that there was a real chance that the appellant would suffer serious harm in the area from which he came. In its reasons, the Tribunal considered the issue of whether it would be reasonable for the appellant to relocate within Pakistan. The Tribunal considered this issue, not only by reference to whether there was an appreciable risk of occurrence of the feared persecution, but more generally. The Tribunal concluded that it was reasonable to expect the appellant to relocate to Karachi. The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Convention, and therefore decided that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth). The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act. The Tribunal affirmed the decision of the delegate.

7    The appellant applied to the Federal Circuit Court for judicial review of the Second Tribunal Decision. The two grounds of the application were:

(a)    first, that the Second Tribunal Decision was affected by jurisdictional error, in that the Tribunal failed to consider the appellant’s claim that it would be unreasonable for him to relocate within Pakistan because he would be without traditional support mechanisms in the area of prospective relocation; and

(b)    second, that the Second Tribunal Decision was affected by jurisdictional error in that a fair minded and reasonably well-informed observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the decision.

8    The Federal Circuit Court dismissed the application (the Second Federal Circuit Court Decision). The appellant appeals from that decision. The appellant contends that the Federal Circuit Court erred in its consideration of the two grounds set out above.

9    In our view, no error has been shown in the Second Federal Circuit Court Decision. In summary, our reasons are as follows:

(a)    In relation to the first ground raised before the Federal Circuit Court, the appellant’s argument before the Tribunal (that it would be unreasonable for him to relocate within Pakistan because of a lack of traditional support mechanisms in the area of prospective relocation) focused on the difficulty of obtaining employment without such mechanisms, but was not limited to this aspect. The Tribunal’s reasons reflected the emphasis in the appellant’s argument. The Tribunal adequately dealt with the matters raised by the appellant in relation to the lack of traditional support mechanisms.

(b)    In relation to the second ground, the appellant’s argument on appeal relied on both the fact that the same Tribunal member heard the matter on both occasions, and on certain aspects of the Second Tribunal Decision which were said to show prejudgment in relation to the relocation issue. The appellant (who was represented) did not object to the same member hearing the matter. Further, it is difficult to make out a case of apprehended bias, on the basis of prejudgment, by reference to the reasons of the decision-maker as distinct from statements or conduct of the decision-maker before the decision is made. In any event, a proper consideration of the Second Tribunal Decision does not indicate prejudgment.

10    It follows from the above that we would dismiss the appeal.

Background facts

11    As noted above, the appellant arrived on Christmas Island on 7 January 2012. He subsequently applied for a protection visa.

12    By letter dated 9 August 2012, he was notified of a decision by a delegate of the Minister that his application for a protection visa had been refused. The appellant applied to the Tribunal for review of the delegate’s decision.

13    On 14 February 2013, the Tribunal made the First Tribunal Decision, by which it affirmed the decision of the delegate. The Tribunal summarised the appellant’s grounds of his protection visa claims (at [22]). The Tribunal found that the appellant was a credible witness (at [63]) and that there was a real chance the appellant would suffer serious harm “for the essential and significant reason of his religion and adverse opinions imputed to him” by the Taliban, like Sunni extremist groups and other Sunnis, who would wish to harm him (at [67]). The Tribunal then turned to the issue of whether it would be reasonable for the appellant to relocate in Pakistan to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution (at [68]). The Tribunal considered whether it would be reasonable for the appellant to relocate to Karachi. The Tribunal concluded that in all of the circumstances, the appellant “can reasonably be expected to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution and where he does not have a well-founded fear of persecution for any convention reason” (at [81]).

14    The appellant applied to the Federal Circuit Court for judicial review of the First Tribunal Decision.

15    On 6 September 2013, the First Federal Circuit Court Decision was handed down: MZZIG v Minister for Immigration & Anor [2013] FCCA 1236. The Federal Circuit Court judge said (at [16]) that counsel for the applicant in the proceeding (that is, the appellant before this Court) submitted, in the judge’s view correctly, that the Tribunal had focused its consideration of the question of relocation and its practicability wholly on the claims advanced by the applicant as to specific harm, namely his ethnicity, his religion and imputed political opinion. The judge said (at [27]-[29]):

27    … While no reasonable criticism can be made of the Tribunal for dealing with the matter in the way in which the applicant himself advanced his case, and no criticism has been or could be advanced of the way that the Tribunal dealt with those matters, the difficulty with the Tribunal’s decision is that it ignores the fact that the issue of relocation depends upon whether it is reasonable and practicable to relocate.

28    While, of course, it is for the applicant to make his or her case, the fact is that relocation is not merely a subset of the grounds of persecution or of significant harm, referred to in the Convention and in the Complementary protection criterion. It concerns whether or not it is reasonable and practicable for the applicant to relocate. The applicant’s materials … had squarely raised the issue of endemic violence in Karachi and the inevitable associated risks. Although not clearly pressed at the hearing, it was an issue that should have been addressed.

29    Put again shortly, the fact is that the applicant’s submission that the relocation principle is not limited to the Convention or the Complementary protection criterion in the sense that it involves broader considerations than mere persecution per se is, in my view, plainly correct.

16    Accordingly, the Federal Circuit Court concluded that the Tribunal had misconstrued the test it was applying and had fallen into jurisdictional error in this regard (at [30]). The Court ordered that a writ of certiorari issue directed to the Tribunal, quashing the First Tribunal Decision; and that a writ of mandamus issue directed to the Tribunal, requiring the Tribunal to determine according to law the application for review.

17    On 13 November 2013, the appellant’s solicitors and migration agent provided a written submission to the Tribunal in connection with the further hearing that was due to take place before the Tribunal. It is necessary to set out at some length the submissions that were made in relation to the relocation issue, in order to provide a foundation for consideration of the appellant’s submissions on appeal. The following submissions were made (at pp 3-5 of the submission):

11.    In the event that the Tribunal does not accept that [the applicant] will be persecuted throughout Pakistan, we submit that internal relocation would be unreasonable in light of [the applicant’s] personal circumstances – beyond his Convention-based claims. According to the UNHCR’s Eligibility Guidelines, the following factors must be taken into account in determining whether internal relocation is ‘reasonable’ in an applicant’s individual circumstances:

(i)    the availability of basic infrastructure, access to essential services, such as sanitation, health care and education, as well as food security in the prospective area of relocation;

(ii)    the availability of traditional support mechanisms, such as relatives and friends, in the area of prospective relocation;

(iii)    the availability of the displaced individuals to sustain themselves, including livelihood opportunities;

(iv)    the presence of landmines and unexploded ordinance;

(v)    the criminality rate and resultant insecurity, particularly in urban areas; as well as

(vi)    the scale of displacement in the area of prospective relocation.

12.    It is our submission that relocation would be unreasonable in light of [the applicant’s] particular circumstances. In particular, we note the following:

a.    [The applicant] instructs that he has no family outside Parachinar in Pakistan. Aside from representing an absence of ‘traditional support mechanisms’ in itself, a lack of kinship or family connections upon which to draw will severely restrict his ability to access employment opportunities.

b.    [The applicant] instructs that he has no friends remaining outside Parachinar or Peshawar in Pakistan.

c.    [The applicant] instructs that he has never been to Karachi, and is unfamiliar with the city; he instructs that all he knows of the city is that it is violent, and that its Shi’a residents (particularly those from Parachinar) suffer discrimination and violence. In light of his unfamiliarity with the city, his ability to find employment will be severely limited; in particular, his prospects for working as a taxi driver in a city which he has never visited, and with which he is unfamiliar, in the absence of familial or personal connections to help him secure such work, must be deemed remote.

d.    [The applicant] further instructs that he has never been to Islamabad or Rawalpindi. As above, this will significantly limit his ability to find employment in either city (particularly as a taxi driver, an occupation which depends to a significant extent upon knowledge of the roads and districts of the location in question).

e.    [The applicant] also notes that although he speaks some Urdu, the dialect he uses is different from the Urdu spoken in places outside of Parachinar. He believes this would make it difficult to communicate and also mark him as an outsider, thus making it hard to relocate or find employment in a place such as Karachi, Islamabad or Rawalpindi.

13.    We further submit (in line with the Federal Circuit Court’s findings and in light of UNHCR Eligibility Guidelines’ emphasis upon ‘the criminality rate and resultant insecurity, particularly in urban areas) that relocation is ‘unreasonable’ in the present case in light of widespread civil unrest and violence in Pakistan (even that which may affect [the applicant] for non-Convention-based reasons).  We have provided independent country information with regard to such violence below in ‘Annex 1: Security Situation in Karachi, Rawalpindi and Islamabad’.

14.    Kinship links, and networks of patronage and friendship, are crucial to survival in Pakistan. Absent the presence of friends and family, [the applicant] will be even more exposed to sectarian violence or terrorist attacks, regardless of where in Pakistan he should seek refuge. Such kinship links are also [the applicant’s] greatest guarantor of employment, shelter, and access to government services, necessary for his survival.

a.    In his book Pakistan: A Hard Country (2011), Anatol Lieven stresses the continuing role of tribal and clan links in ensuring personal safety and economic security in Pakistan. He quotes a landowner-politician on the importance of these links:

‘This is a hard country. You need family or tribal links to protect you, so that there are people who will stick with you and sacrifice for you whatever happens. That way you will not be abandoned even when out of government. The tribal people gives even ordinary tribesmen some strength and protection against attack, whether by dacoits, the police, the courts – your tribesmen will get you out of jail, lie for you to the court, avenge you if necessary.

b.    Lieven confirms this assessment, stating that ‘in a violent society in which none of the institutions of the state can be relied on to act in accordance with their formal rules, close relations with kinsfolk are essential for help against rivals, against the predatory and violent police, in the courts, in politics, and in the extraction of political patronage – all areas of activity which overlap and depend on each other’.

c.    More pithily, Lieven observes ‘[t]hat kinship is of critical importance in Pakistan is something on which all the academic experts agree – which is nice, because they tend to agree on nothing else about the subject. He notes that this is especially true amongst Pakistan’s Pashtun population, for whom ‘tribal membership is a tremendously important marker of identity and status’.

15.    In a nation with a youth unemployment rate of 35% and a general unemployment rate of 15.4%, [the applicant’s] prospects for finding employment – with no tribal or kinship connections to call upon, in a nation where such connections are crucially important – must be deemed bleak.

(Emphasis added, footnotes omitted.)

18    On 18 November 2013, the Tribunal wrote to the appellant’s solicitors and registered migration agent enclosing a letter to the appellant. The letter stated that the Tribunal expected to allocate a hearing date for the case in the near future and stated the name of the member who would be hearing the matter. This was the same member as had heard the matter on the first occasion.

19    On 29 January 2014, a hearing before the Tribunal took place. The appellant was present and gave evidence with the assistance of an interpreter. The appellant was represented by his registered migration agent. No objection was raised to the same Tribunal member hearing the matter on the second occasion.

20    On 28 April 2014, the Second Tribunal Decision was handed down. In describing the reasons of the Tribunal, it will be convenient to refer to the appellant as the “applicant”. The Tribunal referred to the earlier decision of the Tribunal and the First Federal Circuit Court Decision (at [2]). The Tribunal referred to the letter dated 18 November 2013 and noted that no objection to the Tribunal being constituted by the same member had been raised by the applicant or his representative in response to that letter, and no objection had been raised at the Tribunal hearing (at [4]). The Tribunal set out the relevant legal principles (at [5]-[8]), then outlined the applicant’s claims (at [9]-[31]). The Tribunal then set out its findings (at [32]-[79]). The Tribunal found the applicant’s account of the events which gave rise to his protection claims to be credible (at [32]-[39]). The Tribunal stated that in the first review the Tribunal had found that there was a real chance the applicant would suffer serious harm in Parachinar and the Kurram Agency based on his religion; his ethnic group; and adverse opinions imputed to him by the Taliban, like Sunni extremist groups and other Sunnis in that area (at [42]). It was stated: “The Tribunal has set out above more recent country information on the situation in that area and the Tribunal remains of the view that there is a real chance the applicant will suffer serious harm in that area on the same grounds” (at [42], emphasis added). The Tribunal then described the relocation issue in the following terms, with reference to the First Federal Circuit Court Decision (at [43]):

Accordingly, the issue which falls for determination in this review is whether it may be reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. The Tribunal assessed whether it may be reasonable for the applicant to relocate to Karachi in the event that, objectively, there is no appreciable risk of the occurrence of the feared persecution in that city. In making this assessment the Tribunal has, as directed by the Federal Circuit Court of Australia, considered the prevalence of generalised violence in Karachi and its impact on the reasonableness of relocation (as opposed to considering only convention related harm).

(Emphasis added.)

21    The Tribunal next referred to country information which had been set out earlier in its decision and noted that attacks on Shia people in Karachi (who are not involved in extremist groups) tended to occur in areas where large numbers of them were likely to gather in public (for example, for religious processions) or in Shia neighbourhoods (at [44]). The Tribunal then stated (at [45]-[46]):

45.    The number of such attacks and resulting casualties remain small in the context of the size of the Shi’a population in Karachi. There have been cases where Shi’a professionals have been killed but they relate to Shi’as in high positions in society like lawyers or doctors and the applicant appears not to be such a person. Between four to seven million Pashtuns live in Karachi. While there is no indication as to what percentage of this population is Shi’a, the reports of the protests held by the YoP described above indicate that there are Pashtun Shi’as living in Karachi and studying there. The Tribunal does not have country information that Pashtun Shi’as from Parachinar living in Karachi have been harmed. Accordingly the Tribunal considers that the risk of the applicant suffering harm in Karachi because he is a Pashtun Shi’a from Parachinar, in essence, the persecution he fears, is remote.

46.    With respect to the assessment of reasonableness and the prevalence of generalised violence in Karachi, the Tribunal infers that people die every day in targeted killings in Karachi but the victims and perpetrators of this violence are political parties and criminal organisations linked to them. This violence has enabled the presence of Sunni extremist religious groups in the city including the Taliban but the ensuing sectarian violence is mainly perpetrated by these Sunni groups against Shia extremist groups and against themselves. The applicant is not a member of a political or criminal group nor is he a member of a Shi’a extremist group. In addition, criminal groups generally have a presence in Karachi and take part in activities like extortion; activities in which the Taliban also takes part. The Taliban, at least, target wealthy businessmen and it would be fair to assume such people are also more likely to be the victims of criminal activities by criminal groups. The applicant is not a wealthy businessman. Accordingly, the Tribunal infers that the risk of the applicant suffering harm due to the violence and crime in Karachi is remote.

(Emphasis added.)

22    The next section of the Tribunal’s reasons (at [48]-[73]) was headed “Submissions from the applicant and the representative”. The Tribunal referred to country information that had been put forward, and submissions that had been made, by the applicant’s representative at the first review (at [48]-[52]). The Tribunal referred to country information about security in Karachi put forward by the applicant’s representative in the 13 November 2013 submission (at [53]). The Tribunal referred to evidence given by the applicant at the hearing, as well as findings contained in the First Tribunal Decision that were apparently relied upon by the applicant at the second hearing (at [53]-[56]). It is necessary to set out at some length extracts from the Tribunal’s decision in order to provide a basis for considering the appellant’s submissions on appeal. The Tribunal said (at [57]-[73]):

57.    The country information and submissions advanced by the representative and applicant are to much the same effect as the country information mentioned earlier in this decision. The Tribunal acknowledges that there have been attacks on Shi’as in Pakistan and the authorities have been unable to prevent them. The Tribunal considers most of those attacks take place in Balochistan and the North West. The Tribunal acknowledges that Shi’as have been attacked in Karachi and the Taliban and other Sunni extremist groups have a presence there.

58.    However, the fact remains that much of the sectarian violence in that city takes place between extremist groups themselves (to which the applicant does not belong) and the pattern of attacks on Shi’as, being on occasions where large numbers of them are likely to gather, and the numbers harmed, considered in the context of the size of the Shi’a population in Karachi, still leads the Tribunal to consider that the risk of the applicant suffering serious harm in that city because of his religion is remote. The Tribunal acknowledges that the risk for him would be increased were he a Shi’a professional such as a doctor or lawyer but he is not.

…

61.    The Tribunal acknowledges the submissions and country information advanced to support the claim that security in Pakistan and also in Karachi is decreasing and violence against Shi’as is increasing. That includes the claims made about security decreasing after the death of bin Laden and the Taliban attacking government targets in Karachi. However, the Tribunal does not consider these trends take place at a rate that would cause the Tribunal to depart from its view that the risk of the applicant suffering serious harm in Karachi is remote. It would be highly speculative to conclude otherwise. Overall, the Tribunal finds that the risk of the applicant suffering serious harm in Karachi, because he is a Pashtun Shi’a from Parachinar is remote.

…

65.    The representative set out a number of factors to be considered in deciding whether relocation is reasonable [Footnote: see the submissions of 13 November 2013 at pp 3-4]. Those factors included the availability of basic infrastructure and access to essential services; the availability of traditional support mechanisms; the ability of the displaced person to support themselves; the insecurity and level of crime in an urban area and the scale of displacement in the proposed site. It was submitted that the applicant does not have family or friends outside his native area which will restrict his ability to access employment.

…

70.    The Tribunal acknowledges the submissions and information put forward about the need for tribal or familial links to assist in finding employment and in general living in Pakistan. The Tribunal repeats its statement that it has no country information that Pashtun Shi’as are harmed in Karachi (including prevented from finding work and accommodation) and the only information it does have indicates that such people are living in that city and studying there. The applicant himself is relatively well educated and has previous employment experience as a driver. While he may have difficulty working as such in Karachi as he is unfamiliar with that city the Tribunal still considers that this applicant should be well placed to be able to find employment and accommodation there.

71.    While the applicant claims that the Urdu he learned when he lived in Pakistan is different from that spoken in Karachi, the fact remains it is still the Urdu language and the Tribunal does not accept that this will be an impediment to him being able to live in Karachi. He also speaks Pashto and there is a sizeable Pashtun population there. While he claimed that he could speak Urdu when he learned that language at college in school and does not speak it now the tribunal is not satisfied he would be unable to draw on his language skills that he learned to be able to communicate in Karachi. Similarly, the Tribunal does not accept the applicant’s present anxious mental state would make it not practicable for him to settle in Karachi.

72.    While the country information set out earlier in this decision indicates that there is generalised violence in Karachi, it nevertheless has a massive population and is the commercial centre of Pakistan. This violence occurs mainly between those involved in political groups and related criminal organisations. The applicant does not belong to any such group. The risk of him suffering harm from criminal organisations carrying out criminal activities would also be higher if he was a wealthy businessman but the applicant is not. The risk of the applicant suffering harm due to this violence and crime is remote.

73.    Even allowing for decreasing security in Karachi and in Pakistan generally, the Tribunal does not accept that the prevalence of generalised (and sectarian) violence and crime makes it not practicable for the applicant to find employment and accommodation in Karachi and makes it not reasonable for him to relocate there. For the reasons given above the Tribunal finds that it is reasonable to expect the applicant to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution. The applicant does not hold a well founded fear of persecution based on any convention ground in Pakistan.

(Emphasis added.)

23    The Tribunal concluded that it was not satisfied that the applicant was a person in respect of whom Australian had protection obligations under the Convention, and therefore that the applicant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa). The Tribunal affirmed the decision under review.

The Second Federal Circuit Court Decision

24    The appellant applied to the Federal Circuit Court for judicial review of the Second Tribunal Decision. The amended application contained the following two grounds:

1.    The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to consider the applicant’s claim that it would be unreasonable for him to relocate within Pakistan because [he] would be without traditional support mechanisms in the area of prospective relocation.

2.    The decision of the Tribunal was affected by jurisdictional error, in that, in the circumstances, a fair minded and reasonably well informed observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the decision.

25    A hearing took place before the Federal Circuit Court on 11 August 2015 and the Court delivered its decision and reasons for judgment (the Reasons) on 7 October 2015. It will be convenient to refer to the appellant as the “applicant” in the context of discussing the Reasons. The applicant was represented by counsel and solicitors at the hearing before the Federal Circuit Court.

26    The primary judge outlined the background to the application (at [4]-[6]) and then dealt with the material filed in support of the second review before the Tribunal (at [7]-[12]) including the submission dated 13 November 2013. The primary judge then referred to the hearing before the Tribunal on the second occasion and the Second Tribunal Decision (at [13]-[20]).

27    The primary judge then dealt with the applicant’s first ground, setting out the submissions made on behalf of the applicant (at [21]-[24]). In essence, it was submitted on behalf of the applicant that the Tribunal failed to consider the applicant’s claim that it would be unreasonable for him to relocate within Pakistan because he would be without traditional support mechanisms in the area of prospective relocation. The primary judge said that “the question that arises is whether the claim now relied upon by the applicant was sufficiently clearly articulated for it to have been an error of jurisdiction on the part of the Tribunal to fail to deal with it (if that is what it did)” (at [25]). The primary judge referred to various aspects of the applicant’s submissions to the Tribunal which focused on difficulties in finding employment (at [26]-[28]) and concluded in relation to the first ground (at [29]-[31]):

29    In the ultimate, on the facts as they were presented, I do not think that a separate claim of difficulty in relocation related solely to an absence of friends and family outside of Parachinar and Peshawar can be made out. These matters were articulated only at a very general level and were, on the submissions as they were put, very clearly interrelated with the prospect of employment and likely employment difficulties. As Barker J noted in MZZQV [v Minister for Immigration and Border Protection [2015] FCA 533], at [68]:

“a range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision-maker.”

30    The decision in that case turned on its own facts and I note that, at [94], his Honour described the matter as “not an easy matter to determine on appeal”. His Honour found that in that case it was not open to infer that the Tribunal had considered all of the material matters raised by the applicant (at [100]).

31    In this case, to the contrary, I think that the matters raised by the applicant were dealt with by the Tribunal in the terms in which he himself had put them. It follows that the Tribunal did not fall into error in this regard.

(Emphasis added.)

28    The primary judge then dealt with the applicant’s second ground, outlining the submissions made on behalf of the applicant (at [32]-[36]). These focused on paragraphs [58] and [61] of the Second Tribunal Decision (set out above). The applicant relied, in particular, on the use of the word “still” in paragraph [58] and on the sentence, in paragraph [61] of the Second Tribunal Decision, “However, the Tribunal does not consider these trends take place at a rate that would cause the Tribunal to depart from its view that the risk of the applicant suffering serious harm in Karachi is remote” as indicating prejudgment of the relocation issue. On behalf of the Minister, it was submitted that “it was simply too late for the applicant now to raise the question of bias constituted by the fact that the same Tribunal member conducted both hearings” and that “a fair reading of the Tribunal’s decision would show that the Tribunal member did properly address his mind to the matter anew” (at [37]-[38]). The primary judge concluded in relation to the second ground (at [39]-[43]):

39    Put shortly, I think that the first respondent’s submission about waiver is substantially correct. The applicant and his representative knew that the same Tribunal member was hearing the matter at the second review. No application was made at the time or in the subsequent written submissions forwarded to the Tribunal. Consistent with the judgment of the High Court in Smits [v Roach (2006) 227 CLR 423], any objection had been waived.

40    Furthermore, as the first respondent’s written submissions point out, the Act authorises the Tribunal to continue to review the decision to conclusion, even though the particular member has determined the matter previously (Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [26]-[27]).

41    Furthermore, although the Tribunal did indeed refer to the proceedings from the first review application, this was, in the circumstances, anything other than surprising. The materials before the Tribunal would have included the first review application, whoever sat on the second one.

42    While there are several instances, itemised above, in which the applicant is correct to say that the Tribunal arrived at the same conclusion it had previously reached, adverse to the applicant, I have already set out a similar conclusion favourable to the applicant that the Tribunal repeated.

43    In my view, the use of the two phrases to which objection is taken is really all that the applicant can point to, other than the constitution of the Tribunal by the same member. As I say, a fair reading of the Tribunal’s decision, in my view, shows that the Tribunal applied itself in a fashion that would not lead an informed lay observer to conclude that the Tribunal member’s mind was not open to persuasion. The Tribunal was conscious of the matters raised by this Court’s decision remitting the matter to the Tribunal, and, as I would read it, conscientiously applied itself to the matters that the applicant raised in a fashion that was fair.

29    Having concluded that the grounds of the application were not made out, the primary judge dismissed the application.

The appeal to this Court

30    The appellant appeals to this Court from the Second Federal Circuit Court Decision. The appellant’s ground of appeal is as follows:

1.    The decision of the Federal Circuit Court and the [Tribunal] is affected by jurisdictional error.

PARTICULARS

a.    [The] tribunal failed to consider the applicant’s claim that it would be unreasonable for him to relocate within Pakistan because he would be without traditional support mechanisms in the area of prospective relocation and the Federal Circuit Court fell into error by accepting that the tribunal had considered all the claims.

b.    In the circumstances, a fair minded and reasonably well informed observer might reasonably apprehend that the tribunal might not have brought an impartial mind to the decision and the Federal Circuit Court fell into error by accepting that the tribunal member did properly address his mind to the matter anew and that it was now too late for the applicant to object to the presiding member.

31    The appellant seeks an order quashing or setting aside the Second Federal Circuit Court Decision and an order that the matter be remitted to the Administrative Appeals Tribunal (Refugee Division); alternatively, an order that the appellant be granted any consequential necessary visas to be able to remain in Australia.

The first issue: failure to consider

32    There was no dispute between the parties, either before the primary judge or on appeal, as to the principles applicable to the first issue raised by the appellant, namely whether the Tribunal failed to consider the appellant’s claim that it would be unreasonable for him to relocate within Pakistan because he would be without traditional support mechanisms in the area of prospective relocation. As recorded in the Reasons (at [24]), the Minister conceded before the primary judge that jurisdictional error may occur where there is a failure on the part of the Tribunal to deal with a claim clearly articulated. This concession was correctly made. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ (Whitlam J agreeing) said at 443:

If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded. ...

In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant’s Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate’s consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.

33    In MZZQV v Minister for Immigration and Border Protection [2015] FCA 533, Barker J considered a number of cases concerning the issue of relocation and said (at [68]):

All the authorities cited to this point, including the passages from Kirby J’s judgment [in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18], are to the effect that a range of issues may become relevant to the question of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision maker.

34    The appellant’s submissions on the first issue may be summarised as follows:

(a)    The appellant referred to paragraphs 11-15 of the submission dated 13 November 2013 (set out above) and then submitted that the resolution of the first issue turns upon a reading of what claim was actually articulated. Specifically, was the appellant’s claim in relation to the absence of traditional support mechanisms:

(i)    in relation to his ability to navigate all or many important aspects of his life in Pakistan; or

(ii)    solely in relation to the difficulty he might have in obtaining employment?

(b)    The Minister argued the case below on the basis that the appellant had indeed made his claim on the wider basis described in (i), but the Tribunal had not failed to consider that wider claim. The primary judge, in contrast, determined that the appellant’s claim had been made on the narrower basis described in (ii) above. Consequently, the primary judge held that the matters raised by the appellant were fully dealt with by the Tribunal.

(c)    The Minister was correct in his submissions below and the primary judge in error, in construing the scope of the claim made by the appellant. On a fair reading of the submission dated 13 November 2013, the absence of traditional support mechanisms was not put forward as a matter solely and exclusively “interrelated with” difficulties in obtaining employment. It is fair to say that employment was the primary concern put forward in the submission, but that is different from the proposition that employment was the appellant’s only concern. Even if the submission had been so expressed, the contents of paragraph 14 of the submission would have been sufficient to reveal a claim arising on the face of the material.

(d)    The primary judge was correct in his understanding of the limited scope of the Tribunal’s consideration of the issue. There is nothing which could fairly be read as a substantive consideration of the claim beyond the ability to obtain employment (and, arguably, “accommodation” – although it is unclear on what considerations within the Tribunal’s reasons the latter could have been based). The Minister could point only to paragraph [70] of the Second Tribunal Decision. But this paragraph considered the matter in the context of employment.

(e)    It follows that the Tribunal did not consider the claim sought to be made by the appellant, but confined its consideration to a limited subset of the claim.

35    In our view, for the following reasons, the Tribunal did not fail to consider the appellant’s claim that relocation would be unreasonable because of a lack of traditional support mechanisms.

36    We accept the proposition advanced by the appellant that, in the submission dated 13 November 2013, the appellant’s contention that relocation within Pakistan would be unreasonable due to a lack of traditional support mechanisms (such as family and friends) was not limited to the impact that this would have on his ability to access employment opportunities; the contention was advanced more generally. This is indicated by the second sentence of paragraph 12(a) of the submission (set out above) which stated: “Aside from representing an absence of ‘traditional support mechanisms’ in itself, a lack of kinship or family connections upon which to draw will severely restrict his ability to access employment opportunities” (emphasis added). Similarly, the first sentence of paragraph 14 of the submission relied on the lack of kinship links more broadly than in the context of employment opportunities alone.

37    However, we do not accept the submission that the Tribunal failed to consider the appellant’s contention (that it would unreasonable for the appellant to relocate because of a lack of traditional support mechanisms). In our view, the Tribunal did consider this in a way which reflected the emphasis in the appellant’s submission dated 13 November 2013. In paragraph [65] of the Second Tribunal Decision, the Tribunal referred specifically to the 13 November 2013 submission at pages 3-4, which is the part of the submission that dealt with the relocation issue. In the first sentence of paragraph [70], the Tribunal acknowledged “the submissions and information put forward about the need for tribal or familial links to assist in finding employment and in general living in Pakistan” (emphasis added). In the next sentence, the Tribunal stated: “The Tribunal repeats its statement that it has no country information that Pashtun Shi’as are harmed in Karachi (including prevented from finding work and accommodation) and the only information it does have indicates that such people are living in that city and studying there.” The emphasised words in these sentences indicate that the Tribunal was not confining its consideration to the employment context. While the Tribunal’s consideration of the contention that relocation would be unreasonable due to a lack of traditional support mechanisms was dealt with briefly by the Tribunal, and the emphasis was on the employment context, the reasons indicate that the Tribunal did deal with the issue, and did not confine its consideration to the employment context.

38    It follows that the first ground of appeal is not made out.

The second issue: apprehended bias

39    There was no dispute between the parties as to the general principles applicable to a claim of apprehended bias. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Johnson v Johnson (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425, Gleeson CJ, Gaudron and Gummow JJ observed (at 27]) that that formulation “owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private”. Their Honours continued (at [28]-[29]):

28    Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

29.    Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. …

40    In Isbester v Knox City Council (2015) 255 CLR 135, Kiefel, Bell, Keane and Nettle JJ said (at [20]-[23]):

20    The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.

21    The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an “interest” in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.

22    It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.

23    How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

(Footnotes omitted, emphasis added.)

41    In Isbester, Gageler J said (at [57]):

The test for the appearance of disqualifying bias in an administrative context has often been stated in terms drawn from the test for apprehended bias in a curial context. The test, as so stated, is whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided. Such statements of the test have nevertheless been accompanied by acknowledgement that the application of this requirement of procedural fairness “must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making”.

(Footnotes omitted, emphasis added.)

42    The appellant’s submissions in relation to the second issue can be summarised as follows.

(a)    The circumstances which give rise to a reasonable apprehension of bias in this case are not limited to the mere fact of the matter having been remitted to the same Tribunal member who had rejected the appellant’s claim the first time. Rather, it is the combined effect of remittal to the same member and the manner in which the member actually addressed the appellant’s claims on the second occasion. To put it differently, the basis of the apprehension of bias is the manner in which the member addressed the appellant’s claims in circumstances where those claims had already been the subject of a determination by the same member.

(b)    Having a decision-maker consider and determine an issue upon which he or she has already expressed a firm opinion – much less made a final determination – is inherently fraught with risk. In the judicial context, it almost inevitably entails an apprehension of bias: Livesy v New South Wales Bar Association (1983) 151 CLR 288 at 300; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283.

(c)    It is accepted that different considerations apply in the Tribunal context, having regard to the more flexible and informal nature of the proceedings: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [98]-[100], [181]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [4]; Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [40]-[45]. That does not mean that grounds for apprehended bias are precluded when a matter is remitted to the same member; it just means that there may not necessarily be grounds for apprehended bias, depending on the circumstances of the case.

(d)    The underlying concern in a case like the present is the difficulty that a person might have in departing from a previous clearly expressed view – “a recognition of human nature”: British American Tobacco Australia Services Ltd v Laurie at [139]. That difficulty is no less present in the Tribunal context, notwithstanding that its legal significance can be tempered by the different nature of the decision-making paradigm: see, eg, Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 81-82, 91-92. The role of Tribunal members is not underpinned by the same constitutional and statutory safeguards which aid the avoidance of the appearance of prejudgment where judges are concerned: Vakauta v Kelly (1989) 167 CLR 568 at 584-585; Johnson v Johnson (2000) 201 CLR 488 at [12].

(e)    The manner in which the Tribunal approached considering and expressing conclusions about risks the appellant would face in Karachi might give rise to a reasonable apprehension that it might have prejudged those questions. The basis for such an apprehension is captured most clearly, but by no means exclusively, in the Tribunal’s use of language such as “the fact remains…”, “still leads the Tribunal to consider …” and “However, the Tribunal does not consider these trends take place at a rate that would cause the Tribunal to depart from its view that the risk of the applicant suffering serious harm in Karachi is remote” (see the Second Tribunal Decision at [58], [61], set out above). When read in the context of the manner in which the issues were being considered and the conclusions expressed, these statements can be seen to be an accurate reflection of how the Tribunal was conducting its task, rather than a series of unfortunate turns-of-phrase.

(f)    A fair reading of the Tribunal’s reasons might easily give rise to an apprehension that the Tribunal had not freshly approached the question of risks the appellant would face in Karachi, but rather had treated its previous determination as an extant correct finding, and the fixed foundation for its second decision.

(g)    An apprehension that the Tribunal had approached its task in such a manner is materially different from an apprehension that it had a mere ‘predisposition’ or ‘tendency of mind’, or that upon considering the appellant’s claims afresh its reasoning might follow a path akin to that which it had previously followed. The Tribunal’s mind is not required to be a blank sheet: Vakauta v Kelly at 575-576; Jia Legeng at [71]; SZQHH at [38]. What is required to be a blank sheet, and what a fair-minded and reasonably well-informed observer might apprehend might not have been treated as a blank sheet, is the Tribunal’s task of considering afresh all questions of fact and law relevant to the appellant’s claim for protection.

(h)    The Tribunal’s approach suggests a failure to appreciate the nature of its task on remittal. Its reasons reveal no process of starting afresh – rather, they are consistently expressed in a manner that might reasonably be apprehended as a continuation of its first decision. It is likely that the judge below also recognised the Tribunal’s reasons as appearing to be a continuation of its first decision – relying as his Honour did (at [40]) on the Minister’s submission that “the Act authorises the Tribunal to continue to review the decision to conclusion, even though the particular member has determined the matter previously”. The case cited in support of that proposition (Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [26]-[27]) refers to s 414(1) of the Migration Act and says nothing about the proper approach where a matter has been remitted. To interpret it as requiring or allowing the Tribunal to treat its task on remittal as being to “continue … to conclusion” a decision which has been quashed runs contrary to what the High Court stated in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 to be the effect of an order quashing a decision and remitting it for redetermination. In that case, Gummow and Hayne JJ said (at [67]): “The Court’s orders, taken as a whole, provided for the Tribunal to begin again in its statutory task of reviewing the decision to refuse the respondent a protection visa” (emphasis added); see also [6]-[7] per Gleeson CJ. The same authority also makes clear why, in the context of the Tribunal’s task, treating a review as a “continuation” of a quashed decision rather than one which it is “to begin again” is a matter of substance and not just form.

(i)    Where the Tribunal has made a legal error – in the present case, by considering the reasonableness of relocation by reference to a narrow subset of potential risks that the applicant would face in Karachi – it is not possible to neatly disentangle the factual basis of the Tribunal’s first decision from the applicable legal principles upon which that decision was founded, in error.

(j)    A fair-minded and reasonably well-informed observer might reasonably apprehend that the Tribunal’s factual enquiry in the present case had been skewed by the treatment of its task as a continuation of its first decision, and its previous findings as to the risks the appellant would face in Karachi as a fixed point of reference upon which to conduct that task – rather than as part of a decision which had been founded on a wrong legal principle and quashed at law.

(k)    The circumstances which give rise to an apprehension of bias are not simply the remittal of the matter to the same Tribunal member, but the manner in which the Tribunal actually performed its task in circumstances where it had made previous findings on important facts in issue. The appellant could not waive his right to rely upon an apprehension of bias which was not apparent until the Tribunal made its decision and published its reasons: Vakauta v Kelly at 577-579, 587-588.

43    Although the appellant does not rely solely on the fact that the same member heard the matter on the second occasion, it is important to note that the appellant was on notice that the same member would be hearing the matter and did not object to that member hearing the matter. The letter dated 18 November 2013 to the appellant’s solicitors and registered migration agent (referred to in paragraph [18] above) gave notice of the name of the member who would be hearing the matter on the second occasion. This member named was the same member as had heard the matter on the first occasion. No objection was taken either before or at the hearing to this member hearing the matter. If this were the only basis for the apprehended bias contention, the appellant would be taken to have waived his right to object (on the ground of apprehended bias) to the same Tribunal member hearing the matter on the second occasion: Vakauta v Kelly at 577-578 per Dawson J; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [76] per Gummow ACJ, Hayne, Crennan and Bell JJ.

44    However, the appellant relies both on the fact that the same member heard the matter and on the contents of the Second Tribunal Decision to contend that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided. It is apparent from this description of the appellant’s contention that it involves looking back (“might not have brought”) rather than, as is usually the case in connection with apprehended bias, looking forward (“might not bring”). The appellant’s contention also relies on the wording of the decision of the Tribunal to seek to establish apprehended bias by way of prejudgment. In Michael Wilson & Partners Limited v Nicholls, Gummow ACJ, Hayne, Crennan and Bell JJ said (at [67]):

As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

(Footnote omitted, bold emphasis added.)

45    We do not read the above as precluding reliance on reasons for decision in support of an argument of apprehended bias. For example, the reasons for decision may record some aspect of the conduct of the hearing and be relied upon as evidence of that conduct. Or they may disclose some fact not previously known to the parties which supports an allegation of apprehended bias. However, as the above passage makes clear, one needs to be careful not to invert the proper order of inquiry by first assuming the existence of reasonable apprehension.

46    In Vakauta v Kelly, the High Court held that the observations made about the doctor in the course of the judgment amounted to ostensible bias because they would lead to the conclusion, in the mind of the reasonable or fair-minded observer, that the judge was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand: see at 573-574 per Brennan, Deane and Gaudron JJ, at 579 per Dawson J, at 588 per Toohey J. This case makes clear that, in some circumstances, apprehended bias may arise or be apparent from reasons for decision.

47    In the present case, and having regard both to the fact that the same member heard the matter and the content of the reasons for decision, we do not think a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the issue to be determined (namely, the relocation issue). While it is true that the Tribunal member referred on a number of occasions in the Second Tribunal Decision to the earlier decision, this was only natural in circumstances where he had decided the matter on the first occasion. It would have been artificial to have considered the matter without reference to the earlier decision and the reason why the Federal Circuit Court had overturned that decision and remitted the matter for reconsideration. However, the Tribunal member did refer to updated country information which makes clear that he was cognisant of the need to consider the matter afresh. Further, the Tribunal’s statement of the relocation issue in paragraph [43] of the Second Tribunal Decision (quoted in paragraph [20] above) indicates that this issue was being approached afresh in light of the First Federal Circuit Court Decision. The appellant particularly relies on certain statements in paragraphs [58] and [61] of the Second Tribunal Decision (being the emphasised words in those paragraphs in the quotation set out in paragraph [22] above). But when these emphasised passages are read in the context of the decision as a whole, we think they are in fact a reference to the views that the Tribunal expressed in paragraphs [45] and [46] of the Second Tribunal Decision rather than to views expressed in the First Tribunal Decision. In the last sentences of paragraphs [45] and [46] (quoted in paragraph [21] above), the Tribunal expressed a view that certain risks of harm were “remote”. In paragraph [58], the Tribunal said that “the fact remains” and that a certain matter “still leads the Tribunal to consider that the risk of the applicant suffering serious harm in that city because of his religion is remote”. We think the Tribunal was here referring back to the view expressed at the end of paragraph [45] of its reasons. Likewise, we think that the sentence in paragraph [61] of the Second Tribunal Decision that reads, “However, the Tribunal does not consider these trends take place at a rate that would cause the Tribunal to depart from its view that the risk of the applicant suffering serious harm in Karachi is remote” is referring back to the view expressed in paragraph [46] of that decision. Thus we do not think it correct to say that the Tribunal started with its first decision and then considered whether the position adopted in that decision should be departed from. Rather, the Tribunal considered the relocation issue afresh (this time addressing the matter, not just on the basis of Convention reasons, but more generally, as it was directed to do by the First Federal Circuit Court Decision).

48    For these reasons, the primary judge was correct to conclude that the contention of apprehended bias was not made out.

Conclusion

49    The appeal should be dismissed, with costs.

Associate:

Dated:    5 August 2016