FEDERAL COURT OF AUSTRALIA

CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    On or before 4 pm on 21 February 2018, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement pursuant to paragraph 3 of these orders, on or before 4 pm on 28 February 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

5.    On or before 4 pm on 14 March 2018, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

6.    In the absence of any agreement having been reached on or before 28 March 2018, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal raises a ground about fact finding on a protection visa application involving consideration of the place to which a person is likely to return, or to be returned, in her or his country of nationality.

2    Secondly, and separately, the appellant also raises a ground of appeal dealing with the treatment by the Administrative Appeals Tribunal of a psychologist’s report which was before it on its review.

3    For the reasons set out below, we consider there was no error in the way the Federal Circuit Court dealt with the judicial review application before it. Therefore both grounds of appeal should be rejected, and the appeal dismissed.

The course of decision-making on the appellant’s claims, and judicial review

4    The appellant made an application for a protection visa in January 2013, with the assistance of a migration agent. The evidence shows some material discrepancies in the recorded date of the application, but it would appear to have been 2 January 2013. When, on 31 March 2014, a delegate of the first respondent refused the appellant’s protection visa application, the delegate did so, in part and relevantly to the appeal, on the basis of inconsistencies in the appellant’s accounts of where he had lived in Pakistan, although the delegate accepted the appellant might have been from the Orakzai Agency as he claimed. The delegate found that Shia Muslims faced a real risk of serious harm in Orakzai Agency but that it would be reasonable for the appellant to relocate to another region such as Islamabad or other parts of Punjab.

5    After a review application was lodged on 7 April 2014, the Tribunal held a hearing on 10 July 2015. The transcript of that hearing was tendered in evidence on the appeal. The Tribunal affirmed the decision under review on 27 November 2015. In doing so, it rejected all of the appellant’s claims in relation to Art 1A of the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967), being the criterion at that time set out in s 36(2)(a) of the Migration Act 1958 (Cth). It also rejected the appellant’s claims to complementary protection, being the criterion then set out in s 36(2)(aa) of the Migration Act.

6    By an application made on 17 December 2015, the appellant sought judicial review of the Tribunal decision in the Federal Circuit Court. The appellant raised the same two grounds he advances on this appeal. That application was dismissed on 4 August 2017: CSO15 v Minister for Immigration & Anor [2017] FCCA 1812.

7    In summary, the Federal Circuit Court found that the Tribunal had expressly made a finding that the appellant would return to Orakzai Agency as his “home area”, notwithstanding that it accepted the appellant had also spent some time in a village we will refer to as U village. Having made that finding, the Court held that the Tribunal was not required to consider whether the appellant would face a real risk of serious harm in U village. The Court held that the finding was open to the Tribunal and consistent with the case put by the appellant. In relation to the second ground concerning the psychologist’s report, the Court held that the Tribunal referred to the report on several occasions in its decision, and that it could not be inferred that the Tribunal did not consider the report. The proper inference to draw was that the Tribunal did properly have regard to the report and found it relevant to some issues and not others.

8    On 15 August 2017 the appellant appealed to this Court.

9    Since the grounds of appeal before this Court are in substance the same as the grounds of review before the Federal Circuit Court, the errors the appellant identifies in the reasons of the Federal Circuit Court are no more than a failure to accept one or both of the grounds of review as put to it. For that reason it is not necessary to examine the decision of the Federal Circuit Court in any detail.

Key aspects of the appellant’s claims and the Tribunal’s decision for the purposes of the appeal

10    Relevantly to the grounds of appeal, the Tribunal accepted the appellant was a national of Pakistan, but noted there were some inconsistencies in his evidence, and in the information before the Tribunal, about where he had lived in Pakistan. It was clear on the material before the Tribunal, and the Tribunal accepted, that the appellant was born in a village we will call K village, in an area called the Orakzai Agency. In the appellant’s protection visa application, and in his statutory declaration, both completed with the assistance of a migration agent, this village, and the Orakzai Agency, were identified as being in the Khyber Pakhtunkhwa province (KPK), which was formerly known as the North West Frontier Province of Pakistan. In fact, as the appellant submits on this appeal and the Tribunal found, K village and Orakzai Agency are situated in a province known as the Federally Administered Tribal Area (FATA). The evidence before the Tribunal showed that KPK province covers an area to the north and east of the FATA province. The western border of FATA and the north-western border of the KPK province share borders with Afghanistan. The appellant had claimed to have lived for some considerable time, from 1995, with his uncle in U village so he could attend school. The Tribunal accepted U village is in the Kohat District, in KPK.

11    The appellant had made claims to fear persecution based on specific events that he had experienced, or specific attributes he said were personal to him, as well as claims based more generally on his religion (as a Shia Muslim). The first specific event he referred to consisted of three bomb attacks by the Taliban (between December 2008 and April 2010) in places where he lived and/or worked. The appellant claimed each of these attacks was targeted at Shia Muslims. The second specific event consisted of him having been identified by the Taliban, because (he claimed) of his Shia Muslim appearance and surname, while he was on a bus travelling from KPK to Parachinar. He claimed the Taliban who boarded the bus and singled him out had threatened him with abduction and beheading, but eventually let him go because he pleaded to be released. The appellant also claimed to fear persecution on the basis of a specific attribute: namely that he was at risk of harm because he is a member of a family which has a high profile in Pakistan.

12    As we have noted, the appellant then also made claims to fear persecution by reason of being a Shia Muslim. For example, in his statutory declaration made for the purposes of his application (and which was before both the delegate and the Tribunal), the appellant stated:

What I fear may happen to me if I return to Pakistan

18.    I will be killed by Taliban because I am a Shia.

19.    The Taliban already let me go once, next time the Taliban catch me, they will kill me.

13    As the Tribunal records in its reasons, this claim was based on the levels of sectarian violence in Pakistan which the country information suggested were often directed at Shias.

14    The appellant had also stated the following in his statutory declaration:

Why I think relocation to another area in my country is not a reasonable option.

21.    The Taliban networks cover in all areas of Pakistan. Taliban will kill me because they hated Shias. They called us infidels and deserved to beheaded.

15    The Tribunal spent some time in its reasons considering country information about the security situation, and risks of harm, in Pakistan. As expressed, its reasons concentrated on the situation in FATA, and Pakistan as a whole, rather than in KPK. There is a divergence between the parties about how to construe the Tribunal’s reasons in relation to its assessment of the risk of harm to the appellant in Pakistan. Given that divergence, it is appropriate to deal with our conclusions about the Tribunal’s reasons in our consideration below of the two grounds of appeal.

Ground 1

16    Ground 1 is expressed in the following terms in the Notice of Appeal:

1.    The Federal Circuit Court erred by failing to conclude that the Second Respondent’s decision was in error in that it failed to consider:

a.    the Appellant’s claims in respect of the area to which he would return, namely [U village], Khyber Paktunkhwa; and/ or

b.    an integer of the Appellant’s claim, namely that he was at real risk of relevant harm on return to [U village], Khyber Paktunkhwa.

17    As we have noted above, the Tribunal found that the appellant’s evidence was inconsistent about where he had lived in Pakistan, and during which periods of time. At [31]-[32] of its reasons it made the following findings, which are not challenged on appeal:

When asked about the discrepancy between his evidence in the entry interview and his protection visa claims, the applicant reiterated he lived with his uncle and occasionally visited his family, in stark contrast to his evidence in the hearing which was the exact opposite.

When the inconsistencies in his evidence about where he resided, as discussed above, was put to the applicant in the hearing, the applicant agreed that there was a mistake in the dates because he forgot and was getting a lot of dates wrong because he was under a lot of tension and stress. However, as the Tribunal explained to the applicant, the issue was not about the dates but rather that his account of where he resided at various periods of time was significantly different.

18    The Tribunal gave examples in [32] of the inconsistencies it referred to, but it is unnecessary to set them out.

19    Although the ground of appeal is expressed as a failure to consider a claim, or an integer of a claim, the appellant’s counsel fairly accepted in oral submissions that underlying this articulation of the ground of appeal was a premise that the Tribunal was obliged, in order lawfully to discharge or complete its statutory task, to make a finding about the place, or places, to which the appellant would return. If there was more than one likely or possible place of return, the appellant contends the Tribunal was obliged to make findings in relation to each of them. The identification of each place of return raised on the material before the Tribunal was, the appellant contends, critical to the Tribunal’s task. He submits that the place of return defines the country information that is relevant and, if a claim is made out in respect of that place, also determines the places which need to be considered on the question of whether relocation is reasonable, in the sense of being practicable. In written submissions, the appellant contended:

Without identifying a place of return or considering each possible place of return on the question of whether there is a real chance of relevant harm there, the decision-maker cannot perform its statutory task and cannot ask itself the right questions, namely:

a.    Is there one place within the person’s country of return where that person is at real risk of relevant harm in the reasonably foreseeable future?

b.    If so, is there another part of the country to which that person could reasonably relocate?

(Footnote omitted.)

20    In the present case, the appellant submits the material before the Tribunal made it clear the appellant had connections to the KPK region, because of having lived with his uncle, and this should have been identified as a possible place of return for the appellant. Rather than doing this, the appellant submits the Tribunal looked exclusively at FATA as the appellant’s place of return. He submits that the use of the phrase “home region”, by the Tribunal in its reasons was inapposite, because it mattered not where a person’s “home” or original location might have been: what mattered was to where the person was likely to return, if removed from Australia.

21    On this basis, the appellant submits the Tribunal had made no finding that the appellant was likely to return to FATA: rather, the Tribunal had only made a finding that K village in the Orakzai Agency province was the appellant’s “home region” which was, the appellant contends, an irrelevant finding. Alternatively, even if it did, it made no finding at all about what would happen to the appellant if he were to return to the KPK province, where his uncle lived and where he had gone to school and this was, the appellant submits, on the evidence before the Tribunal and on the appellant’s claims, also a likely place of return.

22    We do not consider that, in the circumstances of its review, given the material presented to it and the findings it had made, the Tribunal was required to assess whether the appellant had a well-founded fear of persecution in the KPK region, as part of the performance of its statutory task. That is because there was clearly sufficient material before the Tribunal for it to be open to it to find that the FATA region, and K village, was a possible or likely place of return for the appellant, because it was his “home region”. Having found the appellant had no well-founded fear of persecution if he returned to the FATA region, and was not at risk of significant harm under the complementary protection criteria, a lawful performance of the Tribunal’s statutory task on review did not require it to go on and examine what might happen to the appellant were he to return to the KPK region. We turn to explain why we have reached that conclusion.

23    Some of the appellant’s more general propositions about the Tribunal’s task in considering both refugee and complementary protection may be accepted. Both the refugee and complementary protection criteria, insofar as they require a focus on risk of harm (whether for specific reasons or not), require the decision-maker to engage in a predictive and therefore somewhat speculative task about what is likely to happen to a person in the reasonably foreseeable future on return to her or his country of nationality: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 277-279 (Brennan CJ, Toohey, McHugh and Gummow JJ); NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] (Gray, Tamberlin and Lander JJ); Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [27] (Heerey, Moore, Goldberg JJ); SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292; (2012) 134 ALD 495 at [7] (Flick J). These authorities were considered in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [59]-[60].

24    It is also well-established that notions of “relocation”, or “internal relocation” and the approach to that question through the concepts of reasonableness and practicability are not to be found in the Convention text, but rather are derived as a matter of inference from the more generally stated provisions of the Art 1A definition: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [11]. The plurality in SZATV endorsed the description given by Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440 about how the inference arises. Lord Bingham said that the Refugee Convention:

… does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.

25    In SZATV at [32], the plurality expressly concluded that a failure by a decision-maker to consider what might reasonably be expected of an applicant with respect to her or his “relocation” is an error of law going to the “essential task” of the Tribunal and therefore jurisdictional in nature.

26    The same point was made again by the majority in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [23]. The circumstances in SZSCA were not in fact concerned with a person who had been assessed as having a well-founded fear of persecution if he were to return to one part of his country of nationality (in that case, Afghanistan) and whether there was another place to which he could reasonably be expected to relocate. Rather, SZSCA concerned a person who, on the material before the Tribunal, would return to a place he had lived previously (Kabul), but whose work as a truck driver would take him outside Kabul and onto a number of roads and into a number of regions where the risks were quite different for a person of his ethnicity (Hazara) and religion (Shia). In those circumstances, the majority (at [29]) approached the Tribunal’s expressed “expectation” that he would remain, or need to remain, within Kabul as raising “considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable” (our emphasis). The description of this approach being an “analogy” with the internal relocation principle was also used in the majority’s reasons at [25]. The majority found (at [31]) that the Tribunal was required to, but did not, consider “the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business”.

27    This difference should be noted because the Court’s decision in SZSCA, even the majority reasoning, does appear to suggest that in some factual situations a decision-maker may have to address, as part of the Art 1A task, whether it is reasonable to expect, or assume, as a matter of fact, that a claimant can or should act in particular way, or live, or work, in a particular place or in particular circumstances. This approach to Art 1A does not arise for express consideration in this appeal, but since the appellant’s counsel made much of what he submits was a different approach by Gageler J in SZSCA, in our opinion, it should be noted that the majority also referred to the reasonableness of expectations about what a person could or would do on return as material, in particular circumstances at least, to the Art 1A task.

28    We accept the appellant’s submissions that Gageler J (dissenting on the outcome) took substantively the same approach to the majority in SZSCA on internal relocation, and on how questions of reasonableness and practicability may enter into the Art 1A assessment. It is true that his Honour more expressly situated the internal relocation approach in what his Honour described as the fourth of four cumulative elements of Art 1A: namely, that a person “must be outside the country of his or her nationality ‘owing to’ that well-founded fear”. However that had also been the approach of the majority at [23], as we noted above. It is also true that his Honour perceived a connection between the principles in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 and these matters, with which we respectfully agree.

29    At [39]-[41], speaking of this approach, his Honour said:

39.    This case, like SZATV v Minister for Immigration and [Citizenship] and SZFDV v Minister for Immigration and Citizenship, is concerned primarily with the fourth element of the definition. The principle for which those cases stand is that the fourth element will be absent, even though the other three elements are present, if it would be reasonable for the person concerned to return to a region within the country of nationality where, objectively, there is no appreciable risk of the persecution of which the person has the fear that is well-founded. That is the principle on which so-called ‘relocation’ or ‘internal flight’ cases turn, though there is no reason to confine the principle to circumstances which involve a region which is different from the region in which the person last lived before leaving the country of nationality. The principle applies to a person who could safely return to his or her home region but not go to another region in the same way as it applies to a person who could safely return to another region but not go to his or her home region.

40.    Underlying the principle is a purposive understanding of the causative connection connoted by the words ‘owing to’ within the context of the Convention. The purposive understanding is that a person is not in need of the protection of the international community, for which the Convention provides, outside the country of his or her nationality if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution.

41.    Questions raised by the fourth element of the definition are therefore: whether there is a region within the country of nationality in which there is no appreciable risk of the persecution of which the person has a well-founded fear; and, if so, whether or not it would be reasonable for the person to locate within that region on return to his or her country of nationality.

(Footnotes omitted.)

30    We do not understand this to be any different in substance to the majority’s approach. That is, depending on factual circumstances, his Honour’s approach is that a decision-maker may have to look at whether it is reasonable and practicable to expect a person to avoid travelling to another region of his or her country of nationality, which is outside the region the decision-maker has found is safe for the person, and is the place to which a person is likely to return.

31     Further, at [46], his Honour applied the approach he had outlined by stating that:

The Tribunal was correct to recognise that, on those findings, ‘the issue of relocation does not arise as such’ given that the respondent had established his home in Kabul before he left Afghanistan. Yet the Tribunal was also correct to recognise that those findings did give rise to an issue about the application to the respondent of the same principle as that which underlies an issue of relocation: whether the respondent was outside Afghanistan ‘owing to’ that well-founded fear of persecution by the Taliban in Afghanistan. The question which the Tribunal needed to address was whether it would be reasonable for the respondent, on return to Afghanistan, to live and work in Kabul. I cannot see that the Tribunal failed to address and to answer that question.

(Emphasis added.)

32    Like the majority’s approach, this does appear to introduce, in some factual circumstances, concepts of reasonableness and practicability into the primary Art 1A assessment, although Gageler J reached a different conclusion to the majority on how the Tribunal’s analysis had proceeded.

33    There remains to consider, at the level of general proposition, the appellant’s submissions about the error which would be committed by decision-makers if they used (as the Tribunal here did) the term “home region” or “home area”. This argument is based on what the appellant submits were differences of approach emerging from Kenny J in SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133; Yates J in in SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; 202 FCR 514 and the majority, but especially Gageler J, in SZSCA.

34    In SZQEN, the appellant was a Hazara of the Shia Muslim faith, from Afghanistan. He was born and raised in the Jaghori district within the Ghazni province, having lived there for around 40 years before moving to Helmand province, where he had inherited land from his father. He lived on that land for about 18 months before his land was seized by a Pashtun and he fled to Pakistan. He returned to try and reclaim the land but could not, and fled Afghanistan to Pakistan, and then to Australia. The reviewer found there was a risk of significant harm to the appellant if he returned to Helmand, which was Pashtun dominated, because of the dispute over his land. However the reviewer was not satisfied the risks to the appellant in that area gave rise to risks back in Jaghori district in Ghazni where he had been born and raised. The reviewer described the latter area as the appellant’s “own district”. The appellant told the reviewer there was nothing for him in the Jaghori district of Ghazni. The reviewer also raised the possibility of relocation to Kabul, and made findings that it was both a relevant and reasonable option for the appellant. On appeal from the Federal Magistrates Court before Yates J, the appellant contended his return to Jaghori was really one of relocation, not merely of return, and that the reviewer failed to consider the reasonableness of that relocation.

35    At [28]-[33], Yates J examined the authorities on relocation, including Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; 52 FCR 437; SZTAV and Januzi. His Honour noted at [35] that in each of these cases, the question was “whether it was reasonable for the claimant to be relocated to a place within the country of nationality that was not the claimant’s home region” (emphasis added). His Honour then referred (at [36]) to passages from a UK Immigration Appeal Tribunal decision that the appellant in the present case sought to contest, namely Dyli v Secretary of State for the Home Department [2000] Imm AR 652. In particular, the passage at [35] of Dyli reveals what the appellant in the present appeal contends is problematic in the whole question of how to assess risks on return:

The concepts of reasonableness and undue harshness have to deal with a person who will have to move to an area that has not been his home. No questions of unreasonableness or undue harshness arise if the claimant has no well-founded fear of persecution in his own area. That is so even if there are other areas of his country where he might have such a fear. Such a person will be a refugee only if he cannot reach his own area without being at risk of persecution on the way.

(Emphasis added.)

36    Yates J acknowledged at [38] that no narrow or restrictive meaning should be given to the concept of “home area” or “home region”, and that whether “such ties exist and whether a particular location can be appropriately characterised as a ‘home region’ or ‘home area’ are matters of fact”. Implicitly, given the facts of the case before him, his Honour appeared to accept that a decision-maker could identify more than one place as a person’s “home area” or “home region”. His Honour concluded (at [40]):

However, the appellant’s return to Jaghori would only be an issue of relocation if, contrary to the IMR’s finding, Jaghori was not the appellant’s home district. Thus the appellant’s attempt to demonstrate that the IMR erred by failing to treat the issue of his return to Jaghori as one of relocation depended critically on the appellant also demonstrating that the IMR erred in finding that Jaghori was the appellant’s home district. Indeed, the particulars to the fourth ground are explicit in attributing error to the IMR on the basis that “any move by the [appellant] to Jaghori would not be a return to his home district, but a relocation from Helmand”. At its core, therefore, the fourth ground challenged the IMR’s finding that Jaghori was properly to be regarded as the appellant’s home district. This conclusion is fatal to the appellant’s appeal. In essence his fourth ground impermissibly sought a merits review of the IMR’s factual finding.

37    We do not consider there is any difficulty with the decision of Yates J in SZQEN. As a matter of fact in a given case, it may be appropriate for a decision-maker to identify more than one “place” as a person’s “home area” or “home region”. That will assist the decision-maker in identifying the region or place to which the decision-maker considers, as a fact finding exercise, a person is likely to return. The identification of a “home region” or “home area” is simply one method that may be useful to the finder of fact to determine the place to where an individual is likely to return. As Yates J said, these matters will always be fact dependent. In particular, there is no need for this Court to comment on his Honour’s approach, as it was an orthodox application of established principle.

38    That said, the appellant is correct to identify an area of uncertainty in the authorities. It is true that most of the authorities which have examined relocation have either dealt with, or assumed, that a person will have one “place” from which she or he comes, and identifies as “home”, when an asylum seeker’s experience, and indeed the experience of many people from countries that have been affected by war, civil unrest and other dislocating experiences, may well be that they have lived in more than one place, and had to make a “home” in more than one place. There is something of an overlay attaching to the current approach, which may stem from unconscious assumptions made by judges about a level of stability and length of residence, and “roots” in a place, which is simply not the case for many asylum seekers, who may have been displaced more than once in their own country of nationality for a variety of reasons. As SZQEN demonstrates, and as the facts in the present appeal demonstrate, individuals’ lives may be more complicated than that.

39    Similarly there may not always be a clear line between concepts of what is reasonable and practicable for an individual to undertake in terms of locating, or relocating to another part of a country, and the assessment of whether a person has a well-founded fear of persecution, or is at risk of significant harm, should she or he return. The approach of the majority and of Gageler J in SZSCA, as we set out at [26]-[32] above, is an example. Contrary to the appellant’s submissions, we do not consider that the High Court’s decision in SZSCA (whether the majority or Gageler J) marks some entirely new approach to the Art 1A assessment, which requires considerations of reasonableness and practicability to be injected into every decision-making exercise about whether a person has a well-founded fear of persecution in her or his country of nationality.

40    The need for clear fact finding by a decision-maker, if there is reliance on a finding that a particular area is an applicant’s “home area” and is a location in which the applicant has no well-founded fear of persecution, or fear of significant harm, was emphasised by Kenny J in SZQPY at [80]-[86]. Her Honour also noted that in recent years the concept of a “home area” or “home region” has become an increasingly important but complicated terrain for a decision-maker to travel, and that the analysis may be further complicated because an applicant may have more than one “home area”, or may have none. However, as her Honour noted these are not legal issues, but rather ones concerning the nature of the fact finding in which a decision-maker must engage.

41    In summary, we do not accept there are any differences in principle expressed in these three decisions, and the use of the term “home area” or “home region” in a decision-maker’s reasons is not immediately suggestive of any error. However, as Kenny J observed in SZQPY, some caution is needed by decision-makers in their fact finding, to ensure that they do address the correct question.

42    The correct question is: to where will an applicant return, or be returned? Identifying a place which may have, in the past, been a person’s “home area” or “home region”, may assist in answering that question. But it is not, in and of itself, the answer to the question which must be asked for the statutory task to be lawfully performed. That is because under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place. At least one location within a country of nationality must be identified for this task to be undertaken. Ascertaining a person’s former “home area” or “home region” may be an important step along the way in a decision-maker’s fact finding, but it is not the end of the task. As SZSCA illustrates, once a decision-maker has identified a region or place to which it is likely a person will return, an assessment of the risks a person might face on return to that place or region may, in some factual circumstances, require consideration of what is reasonable and practicable in terms of how that person will live and work in that place. Separately, and distinctly, because it is sourced in a different limb of Art 1A (as Gageler J pointed out in the passages we have extracted at [29] above), this assessment will invariably be required if the region or place is “new” for the person, and internal relocation (or “internal protection”) principles apply. If it is not a “new” area, then decision-makers will need to remain alive to the factual issues raised in cases such as SZSCA.

43    It is necessary to add one further clarification. In his written submissions, the Minister relied on the passage from the majority reasons in SZSCA at [23] where their Honours said:

If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country.

44    The Minister emphasised the words “to a place” in this passage, and made the following submission:

In other words, a person will not be a refugee by reason of the relocation principle if there is “a place” in the country of nationality where the person will have no well-founded fear of persecution. It follows that, where a person has more than one “home region” (from where any relocation would occur), the person will not be a refugee if the person does not have a well-founded fear of persecution in either of those regions.

(Footnote omitted.)

45    Read literally, that submission cannot be accepted. A decision-maker will not perform the task required of her or him if she or he simply searches for “a place” within a country of nationality where a particular applicant will not have a well-founded fear of persecution. The decision-maker must assess, on the material before her or him, the place or places to which an individual is likely to return. The first step of the decision-maker’s assessment is to make findings about, at least, one of those places.

46    If a decision-maker finds the place to which an individual is likely to return is one where the individual’s fear of persecution is well-founded, or where the individual faces a real risk of significant harm, then the decision-maker should determine whether there are any other places to which the individual is likely to return, and then engage in the same fact finding.

47    It is only if the place or places to which an individual is likely to return are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm, that a decision-maker must look at any other places in the individual’s country of nationality where neither of those kinds of risks exist. That is: places that are new or unfamiliar locations for the individual. These must be places to where it is reasonable and practicable to expect that individual to re-locate, if that terminology is to be used. It is not simply a matter of a decision-maker finding “a place” where an individual might not be exposed to persecution for a Convention reason, or to the risk of significant harm. At this final step, there must be an assessment of the reasonableness and practicability of the particular individual living in that (new) place, as the authorities have explained that assessment.

48    These will be fact intensive analyses, very much dependent on what an individual’s evidence and narrative is about the place or places in her or his country of nationality to which she or he has historic connections. The slimmer or more tenuous the connection in the past, or the more complex the question of how an individual might live in a region to which she or he has some connections (as in SZSCA), then the more the analysis may need to turn to questions of reasonableness and practicality.

The Tribunal’s approach in this case

49    We accept the Minister’s characterisation of the Tribunal’s reasoning in the appellant’s case. First, it should be recalled, as the Minister submits, that the delegate found the appellant would return to K village in Orakzai Agency, and also found the appellant had a well-founded fear of persecution in that region. Hence, the delegate then examined whether it was reasonable and practicable for the appellant to relocate, and found that it was.

50    Before the Tribunal, the appellant’s representative clearly submitted to the Tribunal, consistently with the delegate’s findings, that the appellant’s “home region” was Orakzai Agency, K village. That was also the effect of information submitted by the appellant, such as a certificate from a particular welfare society in Victoria, “certifying” that the appellant was a “genuine and bona fide resident” of Orakzai Agency, K village.

51    In that context, the Tribunal assessed whether the appellant had a well-founded fear of persecution if he returned to K village. It did so by first considering claims specific to the appellant, mostly based on what the appellant said had happened to him in the past. Then it turned to the appellant’s claimed fears based on his family membership. As part of both these parts of its reasoning and, assessing whether it captured the appellant’s narrative about what had happened to him in the past, the Tribunal made findings about where he had lived, and when he had lived there. That was not for the purpose of identifying a “home region”, but rather for the purpose of assessing the credibility of the account given by the appellant to the Tribunal. It is for that purpose that the Tribunal states at [32]:

The Tribunal finds the applicant’s varying evidence as to where he lived in Pakistan, particularly from 2008 onwards, raises concerns about the applicant’s credibility generally and also about where he was living in the several years before his departure from the country. Considering all the evidence before it, the Tribunal is unable to be satisfied as to where the applicant lived in Pakistan.

52    This is a passage containing findings reflecting on the appellant’s credibility. It is not a separate assessment about where the appellant might return if he were sent back to Pakistan. In this part of its reasons, the Tribunal had already assumed the appellant would return to K village. There may be no express finding to that effect, but that is the clear, and in the circumstances, reasonable assumption the Tribunal then made.

53    The Tribunal then states (at [53]) that “therefore”, having rejected the specific claims, it needed to turn to the appellant’s less specific claims, dealing with his religious faith as a Shia in a Sunni dominated region. It is at this point that the Tribunal, unsurprisingly, proceeds on the basis of the submissions made to it that K village was the appellant’s home region and that is where his family is. The evidence suggests this aspect of the appellant’s claims was not in dispute before the Tribunal. The Tribunal proceeded in accordance with the appellant’s claims to it. In the next part of its reasons, the Tribunal examines country information about the position for Shia in Pakistan, in particular in Orakzai Agency, and reaches its conclusions. The Tribunal found the appellant had no well-founded fear of persecution in that region and that was sufficient to discharge its task.

54    We add that the situation might have been different if, on the material the appellant had clearly indicated an intention to return to the KPK region, despite acknowledging that the FATA region was his “home area”. For example, if he had said something to the effect of – “well, I will not try to go home to K village, because it is unsafe and unsuitable, so I will go to the KPK region and go back to my uncle”, then in order to review the claims by the appellant as they were put to the Tribunal, it would have been obliged to examine the situation in KPK. If it found the appellant had a well-founded fear of persecution in KPK, and/or faced a risk of significant harm there for the purposes of the complementary protection criteria, it would then have needed to consider whether there were other parts of Pakistan to which the appellant might reasonably be expected to relocate. That may have included FATA, since it was his “home region”. We use this example to illustrate that in the context of assessing risks on return, the nature and scope of the Tribunal’s task on review will be materially affected by what an applicant says to the Tribunal, or what material an applicant puts before the Tribunal.

55    Ground 1 must be rejected.

Ground 2

56    Ground 2 is expressed in the following way:

The Federal Circuit Court erred by failing to conclude that the Second Respondent’s erred in its statutory task in that it did not ‘deal with’ the psychologist’s report dated 23 June 2015, in particular in respect of the general negative credibility assessment arising from the dates the Applicant said he lived in the Federally Administered Tribal Area as compared with Khyber Paktunkhwa, Pakistan.

57    The appellant relies on a psychologist’s report provided to the Tribunal after the delegate’s decision. That report indicated the practitioner had been treating the appellant for approximately nine months. The practitioner then stated that he had read “the complete 24 page presentation of the Government position” (which we infer refers to the delegate’s reasons for decision), noting that a number of inconsistencies in the appellant’s account had been found to exist. The practitioner then expresses his opinion that:

From psychometric assessment it is shown that this man has a level of cognitive ability which places him around the level of the poorest 2.5% of the adult population (around IQ 70); it is important to state that this measure of intelligence is based· upon tasks not affected by culture or language.

…

… the inconsistencies and uncertainties about detail pointed out in the Government review of his case are entirely compatible with a level of intellectual development which is at the boundary where special assistance would be provided in Victorian schools.

58    The appellant contends, correctly, that the Tribunal did not cast any doubt on the contents of this report, yet did not take the opinion into account in its own assessment of the appellant’s credibility, in particular in assessing the appellant’s accounts of where he had lived prior to 2008, which was the aspect of the appellant’s narrative about his past that the Tribunal found not to be credible.

59    The appellant submits the error could be characterised in a number of different ways: a failure to analyse material directly bearing on a determinative issue before the Tribunal which is inconsistent with the obligation on it to give real, genuine and conscientious consideration; or failure to evaluate “a submission of substance” or evidence of “significance”; or a failure to make particular findings indicating a failure to conduct a review as required by the Act.

60    The case the appellant submits is the closest analogy is Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 at [44] per Wilcox and Marshall JJ, where the error was described as a “failure to deal with” a matter.

61    The appellant contends that the submissions made on behalf of the appellant to the Tribunal, at the time the report was filed, alerted the Tribunal to the issue about the appellant’s low intellectual functioning.

62    We do not accept that last submission. The letter from the appellant’s representative simply states that the appellant submitted the report. The written submissions which then followed all dealt with the substance of the appellant’s claims, without any statement to the effect that his accounts and narratives needed to be considered in the light of the opinion expressed by his treating practitioner.

63    There is no suggestion in either the content of the report (to which we have referred) nor in the representative’s submissions that the practitioner’s opinion about the appellant’s low intellectual level was put before the Tribunal to address any specific factual issue. To the contrary, as the practitioner himself indicates, it was submitted for the purpose of pointing out why, at a general level, the appellant may give inconsistent historical accounts of events.

64    Further, it is clear that the Tribunal did consider the practitioner’s report. It did so in the context of assessing the appellant’s claim that his family was targeted by the Taliban since 2006, which was a matter the appellant had not raised before. In this context, the Tribunal considers whether the practitioner’s report might explain why the appellant had not raised this matter earlier. However the Tribunal rejected this as an explanation at [44]-[45] of its reasons, on the basis that it did not accept that if the appellant’s family had been threatened so regularly and continuously (as the appellant claimed), he would not have recalled this before the Tribunal hearing.

65    It is true that the Tribunal did not refer back to the practitioner’s report at every point where it made a finding about the appellant’s credibility. However, it was not required to do so. The way it dealt with the practitioner’s report discloses it was conscious of the opinion the practitioner had given. There were no specific submissions from the appellant’s representative, based on the report, which could have directed the Tribunal’s attention to how low level intellectual functioning could explain specific inconsistencies. If there had been detailed submissions at that level, the Tribunal may well have had to deal with them. However, that was not the situation confronting the Tribunal.

66    The Tribunal’s consideration of the psychologist’s report cannot be dismissed as a “passing reference”, and is not for a “different” or “narrower” purpose. The report was provided (in part) to explain why the appellant may have provided inconsistent accounts of events generally. The Tribunal rejected that explanation, in relation to a significant claim made by the appellant (harm targeted specifically at the appellant and his family). This involves an active intellectual process in considering the report. Where no specific submissions were made to it about the use or uses to which the Tribunal should put the report in assessing the credibility and reliability of the appellant’s narrative about what had happened to him in the past, and the opinions in it, the Tribunal was entitled to deploy it at various parts of its reasoning as it saw appropriate, which is what it did.

67    This ground of appeal must be rejected.

Conclusion

68    The appellant has not made out either of his grounds of appeal. The appeal must be dismissed. We see no basis in the material for anything but the usual order as to costs, which, in accordance with the Court’s Practice Notes, should be fixed on a lump sum basis. There should be directions to give effect to that approach.

Associate:

Dated:    7 February 2018