FEDERAL COURT OF AUSTRALIA

AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

BESANKO J:

1    I have had the advantage of reading the reasons for judgment of Middleton and Mortimer JJ. I am in general agreement with their Honours’ reasons. However, I wish to add a few words of my own. For that purpose, I gratefully adopt their Honours’ statement of the relevant facts.

2    The focus of the appellant’s challenge to the reasons of the Tribunal was [79] which is as follows:

The Tribunal accepts that on 13 December 2015 at least 25 people were killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar. The Tribunal has considered whether this most recent attack was indicative of the increasing tensions in Parachinar and whether this incident would lead to further sectarian violence. The Tribunal considers, however, that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre. The Tribunal considers that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous, the Tribunal considers that it would be premature to conclude that this attack - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before me that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before the Tribunal concerning the security situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.

3    The appellant’s argument is that the Tribunal’s reference to a premature conclusion and mere speculation to make a particular finding on the evidence indicated that the Tribunal misunderstood or misapplied the definition of “refugee”. In elaboration of this argument, the appellant pointed to four alleged errors.

4    First, the appellant contended that the Tribunal had put an onus on him to prove that the foreseeable future was definitely going to be different and worse than a particular period of the past which had been relatively calm. The appellant submitted that he did not need to prove that the future was definitely going to be different to a particular past period not including the recent events (appellant’s emphasis).

5    I do not think that in this passage the Tribunal is setting up some sort of onus on the appellant. The Tribunal found that since 2013, and leaving aside the incident in December 2015, there had been a “sustained improvement in the security situation in the Kurram Agency” and that “the security situation had been relatively stable”. The Tribunal was entitled to make those findings on the evidence and information before it. It then had to assess the character of the attack in December 2015 in terms of whether it indicated a deterioration in the security situation. That was a question of fact and the Tribunal’s conclusion that the attack did not mark a definite change in the security situation was neither illogical nor irrational.

6    Secondly, the appellant contended that it was appropriate for the Tribunal to consider what had happened in the past in order to assess the possibility of harm in the future and that whilst the Tribunal had done that, it had erred in relying on the period of “relative quiet” between 2013 and 2015. The submission was that in light of the recurring pattern of violence, including, but not limited to, the period from 2007 to 2013, it involved error for the Tribunal to identify only one period as in effect the norm so as to describe the recent event as “anomalous”.

7    In my opinion, this argument must be rejected. The argument was skilfully put, but it is in reality an attack on the merits of the Tribunal’s decision. The Tribunal examined the country information in relation to the appellant’s home region in Pakistan of the Kurram Agency in considerable detail. It did not ignore the period before the 2013 truce. Incidents since the truce were carefully considered. It is not suggested that the Tribunal erred in considering the general security situation and in that context it needed to assess the significance of the December 2015 attack. All the Tribunal was saying, in my respectful view, was that although no-one could be certain of what would happen in the future, it assessed the security situation as one which had shown sustained improvement and relative stability.

8    Thirdly, the appellant contended that the Tribunal’s reference to mere speculation that there is a real chance that any individual Shia Muslim member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future involved error. Again, I am of the opinion that when this argument is fully understood, it is in truth an attack on the merits of the Tribunal’s decision. The argument was put in the following way in writing:

What the Court criticised in Guo was “mere” speculation. What the Court encouraged was considering past events in order to assessing [sic] the degree of likelihood of future events. Applying Guo, it simply cannot have involved “mere speculation” to conclude, based on the availability information including the December 2015 attack, that there was a chance of further attacks on Shias in Parachinar. There was plainly evidence that was capable of supporting that conclusion. Accordingly, again, the Tribunal’s language and reasoning suggests that it misapplied the Convention definition and therefore the visa criteria.

9    It is trite that an examination of the facts and the result may be such as to lead to the inference that there has been a misunderstanding of correct legal principles, even where the legal principles are correctly stated earlier in the decision-maker’s reasons. However, that is not this case. The Tribunal did correctly state the legal principles as to the meaning of the term, “well-founded” early in its reasons (at [12]) and, in addition, the conclusion that the risk was remote or speculative was open to the Tribunal on the evidence. The result, therefore, does not suggest legal error.

10    Finally, the appellant referred to [83] and [84] of the Tribunal’s reasons which are as follows:

Since the military action, there has not been any increase in the violence in the region. Indeed, as reported above, there is a notable decline in violence, apart from isolated incidents, such as December 2015. As discussed, the Tribunal considers this incident anomalous in the improving situation of this region of Pakistan.

Given that this improvement in the security situation in the applicant’s home region has been ongoing for an extended period, the Tribunal considers that there are grounds to determine that the prospect that the situation in the applicant’s home region will remain peaceful, now and in the reasonably foreseeable future, is quite high.

11    The appellant’s argument is that referring to the prospect of the appellant’s home region remaining peaceful now and into the reasonably foreseeable future as “quite high” is an error because a real chance for the purposes of the meaning of “well-founded”, may involve a chance which is quite low, certainly “well below 50 per cent” (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 572–573 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

12    On the face of it, there is some force in this argument. However, I think that when the reasons are read as a whole, the argument must be rejected. In what has been described in other cases in this Court as introductory reasoning of the Tribunal (SRBB v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 1387 at [30] per Mansfield J), the Tribunal noted that a person may have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. That is to be taken into account. What is of more significance, in my opinion, is the reference in [79] to the very page in Guo which makes it clear that a person may have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. There is no reason to think that the Tribunal’s reference is formulaic or made without due consideration. I am of the opinion that the Tribunal’s reference in [84] of its reasons to the prospect being “quite high” is not intended as a grading of the prospect of an event or events occurring, but as emphasising the point that nobody can be certain of what will happen. When the Tribunal’s reasons are read as a whole, I do not think that the Tribunal’s reference to “quite high” means that it misunderstood or misapplied the correct test.

13    The appeal should be dismissed with costs. I join in expressing the Court’s gratitude to the appellant’s counsel who represented him on a pro bono basis.

Associate:    

Dated:    18 March 2019

REASONS FOR JUDGMENT

MIDDLETON AND MORTIMER JJ:

INTRODUCTION

14    The appellant appeals from a judgment of the Federal Circuit Court given on 16 December 2016 where the primary judge dismissed an application for judicial review of a decision of the second respondent (the ‘Tribunal’) to affirm a decision of a delegate of the first respondent (the ‘Minister’) to refuse to grant the appellant a protection visa.

15    There was a single ground of appeal, which was to the effect that the Tribunal erred by misunderstanding or misapplying the definition of “refugee” in Article 1A of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the ‘Convention’), and therefore the visa criteria picked up in s 36(2)(a) of the Migration Act 1958 (Cth) (the ‘Act’). The focus of this appeal was upon the reasoning of the Tribunal, to which we will need to return in some detail.

BACKGROUND

Appellant’s claims

16    The appellant is a national of Pakistan. He comes from Parachinar, the main town in the Upper Kurram Agency, which is part of the Federally Administered Tribunal Areas (the ‘FATA’) region of Pakistan. He is of Shia faith, a Pashtun, and from the Bangash tribe.

17    The appellant made various claims to fear harm. One claim was to the effect that the appellant faced a real chance of suffering serious or significant harm (including death) in his home area as a result of general and sectarian violence affecting that region. He claimed that Bangash Shias were targeted by the Taliban and other anti-Shia insurgents, including because they would not let the Taliban through their area to fight in Afghanistan. He also claimed that there was a recurring pattern of violence in the area.

Tribunal’s decision

18    The appellant appeared at a hearing before the Tribunal on 21 July 2015. However, the Tribunal did not make its decision until 21 January 2016. New information came into existence after the hearing and shortly before the Tribunal’s decision about a recent bombing by anti-Shia insurgents that killed and injured many Shias in the appellant’s home area.

19    The Tribunal dealt with the relevant claim in a section of its written statement under the heading “The situation in Parachinar” ([49]-[86]). All of the detail and information contained in those paragraphs is important to give context to the various paragraphs that were focused upon by the appellant in this appeal.

20    After briefly reciting the appellant’s relevant claim at [49], the Tribunal commenced at [50] by recording recent country information from a DFAT report (published in April 2015). Relevantly, that included the following information:

(1)    “The current conflict in Kurram can be traced to the 1980s when the Turis refused to provide support to the Mujahideen and later the al-Qaeda and Taliban forces fleeing Afghanistan. There has been a history of violence between Shias and Sunnis in Kurram particularly since 2007.”

(2)    “DFAT understands that a 2013 truce … between the Shia Turi and mostly Sunni Bangash communities in Kurram Agency is still in place (as of November 2014). ... This has resulted in an improved security situation in Kurram Agency.”

(3)    Nevertheless, despite the 2013 truce, “[o]verall DFAT assesses that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas”. “[T]he situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services.”

21    The Tribunal then referred to a more recent report from DFAT (published in January 2016), and noted that it had discussed this report with the appellant at the hearing. According to the Tribunal, the more recent report “has lowered the assessment of harm and violence, consistent with the view expressed by the Tribunal at the hearing that the risk of being harmed in this region of Pakistan was reducing” ([51]).

22    The Tribunal found that “there have not been the repeat of significant targeted events that have caused multiple casualties that were common in the period between 2007 and 2012” ([52]).

23    Then at [55] the Tribunal noted that, since the hearing (on 21 July 2015), “a further act of violence has taken place. On 13 December 2015, at least 25 people had been killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar. Lashkar e Jhangvi … claimed responsibility for this attack ‘in retaliation for Shia support of Iran and Bashar al Assad’”. The January 2016 DFAT report was not in evidence, and it is not possible to make a finding as to whether it included the 13 December 2015 incident. The structure of the Tribunal’s reasons, and its separate consideration of the 13 December 2015 incident, may suggest it was not included.

24    The Tribunal then went through other country information, and was obviously of the view that the security situation in the Kurram Agency since 2013 had improved. Importantly, subject to dealing with the 13 December 2015 incident, the Tribunal clearly had enough information to so conclude that the security situation had improved at least to that date.

25    Then, again importantly for this appeal, the Tribunal sought to deal with the evidence of the 13 December 2015 incident as follows:

[79]    The Tribunal accepts that on 13 December 2015 at least 25 people were killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar. The Tribunal has considered whether this most recent attack was indicative of the increasing tensions in Parachinar and whether this incident would lead to further sectarian violence. The Tribunal considers, however, that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre. The Tribunal considers that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous, the Tribunal considers that it would be premature to conclude that this attack - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before me that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before the Tribunal concerning the security situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.

[80]    The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in his home region for these attributes. The Tribunal considers that the country information provided in detail demonstrates that the situation in Parachinar, and in Kurram more generally, has witnessed a significant decline in the violence for what is now an extended period of time. The Tribunal accepts that there have been incidents of violence in the area, as detailed in the reports mentioned above. However these incidents are isolated and limited in the region for Parachinar Shias, Bangash Tribe members, Pashtuns, those attributed with anti-Taliban political opinions or pro-Western opinions, or people belonging to particular social groups that the applicant claims to be a member of. The Tribunal considers at present, the prospect of the applicant being harmed for these reasons is remote and mere speculation, and not one that constitutes a real chance or a real risk of occurring.

26    Then, at [83]-[85] the Tribunal stated as follows:

[83]    Since the military action, there has not been any increase in the violence in the region. Indeed, as reported above, there is a notable decline in violence, apart from isolated incidents, such as December 2015. As discussed, the Tribunal considers this incident anomalous in the improving situation of this region in Pakistan.

[84]    Given that this improvement in the security situation in the applicant’s home region has been ongoing for an extended period, the Tribunal considers that there are grounds to determine that the prospect that the situation in the applicant’s home region will remain peaceful, now and in the reasonably foreseeable future, is quite high.

[85]    The Tribunal considers on the country information it has read, including that submitted by the applicant's agent, and the country information included above, that the situation in the Parachinar region has improved to the extent that the chance or risk of the applicant being harmed can only be considered to be remote or speculative. The Tribunal does not accept that that applicant will be harmed on return to Parachinar for these reasons.

27    A great deal of discussion at the hearing of the appeal focussed on these paragraphs in particular.

RELEVANT LEGAL PRINCIPLES

28    This appeal was heard together with AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48 (‘AON15’). The same Tribunal member decided the reviews in both of the appellants’ cases, one in March 2015 (AON15) and one in January 2016 (this appeal). It is apparent from a consideration of both sets of reasons, and to be expected, that the Tribunal’s assessment of the situation in the Kurram Agency region of the FATA generally, and the Upper Kurram Agency and the town of Parachinar in particular, for the purposes of its review of the claims of the appellant in this appeal, built on its consideration of country information in the review of the appellant in AON15.

29    While both appeals have some matters in common, the disposition of each appeal essentially depends upon the correct understanding of the reasoning of the Tribunal in each case. That said, both appeals share relevant legal principles which we recite below. There was no dispute as to the general legal principles to apply to either appeal, but it was their application and the nuances of the applicable principles on which the parties divided.

30    Both this appeal and AON15 deal with a version of the Act prior to the amendments which introduced statutory definitions of the term “refugee” (s 5H) and of the concept “well-founded fear of persecution” (s 5J), including expressly introducing the phrase “real chance” as part of the definition of a “well-founded fear of persecution” in s 5J. Those amendments were introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).

31    This appeal, like AON15, concerns the state of the law to be applied by the Tribunal prior to these amendments.

32    The criteria for a protection visa, and in particular the definition of “refugee” in Article 1A of the Convention, was relevantly incorporated into the criteria in s 36(2) of the Act.

33    A refugee within the meaning of the Convention is a person who has a “well-founded fear of persecution” on certain grounds. The only issue in this appeal was whether the Tribunal erred in its approach to assessing whether the appellant’s fear was “well-founded”.

34    The expression “well-founded” was considered by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (‘Chan’) and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (‘Guo’).

35    In Chan, Mason CJ said at 389:

I agree with the conclusion reached by McHugh J. that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran. There Lord Keith of Kinkel spoke of the need for an applicant to demonstrate “a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country” and Lord Goff of Chieveley spoke of “a real and substantial risk of persecution”. Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca where Stevens J., with reference to a statutory provision (which reflected the language of Art. 1(A)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic, observed that the interpretation favoured by the majority would indicate that “it is enough that persecution is a reasonable possibility”. I do not detect any significant difference in the various expressions to which I have referred. But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v. The Queen, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

(Emphasis added, citations omitted)

36    Justice Dawson at 396-398 made the following observations:

The phrase “well-founded fear of being persecuted” has occasioned some difference of opinion in the interpretation of the relevant Article of the Convention. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear. The differences which have arisen have largely stemmed from a desire to place a greater emphasis upon either the subjective or the objective element of the phrase. Paragraph 42 of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the Office of the United Nations High Commissioner for Refugees in 1979 states that:

“In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there.”

Perhaps the emphasis upon the subjective element in this view of the test was prompted by recognition of the fact that some member States of the Convention are reluctant to find an actual danger of persecution in another country for fear of damaging relations with that other country: see Reg. v. Home Secretary; Ex parte Sivakumaran. But “well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him, to have no foundation. It is clear enough that the object of the Convention is not to relieve fears which are all in the mind, however understandable, but to facilitate refuge for those who are in need of it. Only limited recognition of this is given in the further observation in par. 204 of the Handbook that an applicant’s statements must be “coherent and plausible, and must not run counter to generally known facts”.

On the other hand, it is also clear enough that a fear can be well-founded without any certainty, or even probability, that it will be realized. So much was recognized by the United States Supreme Court in Immigration and Naturalization Service v. Cardoza-Fonseca where it was held that a statutory provision reflecting the relevant phrase in the Convention did not require the probability of persecution. As was said by Stevens J., delivering the opinion of the Court:

“That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one. One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.”

(Emphasis added, citations omitted)

37    Then Toohey J at 406-407 said:

The use of the adjectival expression “well-founded” must be taken as qualifying in some way the “fear of persecution”. It is hard to conceive of a fear which has no objective foundation at all as well-founded, no matter how genuine the fear might be. If the test were entirely subjective, the expression “well-founded” would serve no useful purpose. On the other hand, it is fear of persecution of which Art. 1A(2) speaks, not the fact of persecution. So it is apparent that while the requirement is not entirely subjective, it is not entirely objective. Both elements are present. There must be a fear on the part of the applicant and that fear must be of persecution. But what is meant by “well-founded”?

…

The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. That is not to say that its application will be easy in all cases; clearly, it will not. It is inevitable that difficult judgment will have to be made from time to time.

(Emphasis added, citations omitted)

38    Finally, Gaudron J at 415 said:

The definition of “refugee” looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression "once bitten, twice shy", that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be “well-founded fear” at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.

(Emphasis added, citations omitted)

39    In Guo, the High Court emphasised that the definition of “refugee” in the Convention used the expression “well-founded fear”, not the expression “real chance of harm”. The High Court explained that to use a “real chance” test as a substitute for the Convention test is to invite error. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ commented (at 572-573):

Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention “well-founded fear” is to invite error.

No doubt in most, perhaps all, cases ... the application of the real chance test, properly understood as a clarification of the phrase “well-founded”, leads to the same result as the direct application of that phrase. Wu Shan Liang is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. Einfeld J thought that the “real chance” test invited speculation and that the Tribunal had erred because it “has shunned speculation”. If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism can be made of his use of the term. But it seems likely ... that he was using the word in its primary dictionary definition of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear may eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.

(Emphasis added, citations omitted)

40    Despite the caution in Guo, it is still common for decision-makers (and courts) to move into the language of “real chance” of harm, and to use in contradistinction to that term the words “remote” or “insubstantial”. That is what the Tribunal did in this case. We observe that, at a day-to-day level in a busy administrative tribunal, it may be useful for a decision-maker to contrast in her or his own mind whether, on the material, the harm feared by a person is “remote” with whether there is a “real chance” the person may experience the harm she or he fears. Nevertheless, these are not the words of the Convention and the issues on this appeal illustrate how substitution of that kind can lead to difficulties.

41    In other jurisdictions, the language of “possibility” is commonly used as the explanatory of the content of a well-founded fear, but always with adjectival qualification.

42    The United States Supreme Court has used “reasonable possibility”: Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987) (‘Cardoza-Fonseca’) at 440 (Stevens J). Cardoza-Fonseca is regarded by Hathaway and Foster as a “seminal precedent”: Hathaway JC and Foster M, The Law of Refugee Status (2nd ed, Cambridge University Press, 2014) p 111. In the United Kingdom, the House of Lords has used “a reasonable degree of likelihood” of persecution or a “real and substantial risk” of persecution: R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958 at 994 (Lord Keith of Kinkel) and 1000 (Lord Goff of Chieveley). The Supreme Court of Canada has used “reasonable possibility” or “serious possibility”: Kwong Hung Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593 (‘Kwong Hung Chan v Canada’) at 659 (Major J).

43    The adjectival qualification emphasises the requisite sufficiency of the objective basis for a person’s fear: namely, a level which justifies another contracting State being required to offer surrogate protection to that person.

44    The antonym of “well-founded” has been described as:

(1)    “mere possibility” (see Major J in Kwong Hung Chan v Canada at 659); and

(2)    “remote chance” (see the New Zealand High Court in DG v Refugee Status Appeals Authority [2001] NZHC 443 (Chisholm J)).

45    In Chan, Toohey J used “remote” together with the adjective “insubstantial”, which takes its meaning closer to some of the other negative descriptions such as “fanciful” (see Hathaway and Foster at p 114).

46    Reaching too readily for the label “remote” as a descriptor of risk may lead to error. Whilst we conclude on this appeal that the Tribunal’s findings were open to it in this particular case, it would not be correct to use “remoteness” as suggesting that to be well-founded, the harm feared by a person must be of an immediate or direct nature. Nor should a decision-maker go straight to the question of whether there is only a “remote chance” that the harm feared by an applicant will eventuate. That may lead a decision-maker inadvertently into a reasoning process relying on probabilities. It may subvert the Convention’s focus on the positive question as to whether there is a sufficient basis in the evidence to describe a person’s fear of persecution as “well-founded”.

47    In addition, a decision-maker should not ignore the type of fear and the subjective fears of an applicant in the objective evaluation of whether the particular fear was well-founded. An applicant’s expression of her or his fear, and the circumstances in which it is claimed to arise, may inform the assessment of whether it is well-founded.

48    However, the assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future: see eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’) at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ).

49    As Mortimer J stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]:

The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

50    As we have said, there was no dispute as to these legal principles. The only questions to determine are how the Tribunal went about its task, and whether it fell into jurisdictional error. In considering whether objectively there is a well-founded fear, the decision-maker should not look to statistics or projections divorced from the fear as articulated by the applicant for a protection visa. At all times the decision-maker must look to the individual applicant’s circumstances to determine whether that applicant, in the circumstances to which she or he will return to her or his country of nationality, has a well-founded fear of persecution. Further, in considering whether the fear is well-founded, the Court must consider the totality of the circumstances. We do not think these matters are controversial in light of the authorities referred to above.

CONSIDERATION

51    It is true, as the appellant submitted, the Tribunal accepted the “history of violence between Sunnis and Shia in Kurram particularly since 2007” ([50]). The Tribunal accepted the April 2015 DFAT report but in particular between April 2007 and February 2012 indicated that there was still a “high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas” ([50]). Then, on the basis of the January 2016 DFAT report, issued six months after the earlier DFAT report, the Tribunal had information that the risk of harm had “reduced” ([51]).

52    It was submitted by the appellant that the Tribunal needed to consider whether in light of the new information, and in light of the recurring violence between Shias and Sunnis in the relevant area – albeit with a period of “relative calm” between 2013 to 2015 – there was a real and substantial basis for the appellant’s subjective fear of being harmed in his home area. The Tribunal was required to consider whether there was a real and substantial basis for fearing harm, even though the probability of that harm occurring might well be quite low.

53    It was submitted that the Tribunal treated the period of relative calm (from 2013 to 2015) as the “norm” and did so despite the undisputed evidence of recurring violence over the decades, including but not limited to the period from 2007 to 2013. It was submitted that the Tribunal in considering that it would be “premature to conclude” that the recent attack “marks a definite change” from the norm, revealed a misunderstanding or misapplication of the real chance test.

54    In our view, the Tribunal did not, on a fair reading of the whole of its decision, misunderstand or misapply the approach to whether the appellant’s fear was well-founded, nor did its statutory task miscarry because of its approach to whether the appellant’s fear of persecution in the Upper Kurram Agency was well-founded.

55    We are mindful that in assessing the reasons for a decision of the Tribunal it is not appropriate for the Court to construe the reasons for the Tribunal’s decision minutely and with a mind keenly attuned to the perception of error, but rather those reasons should be read fairly and as a whole: see eg Wu Shan Liang at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ) and 291 (per Kirby J). Having said that, the Court should not be hesitant to expose jurisdictional error where it truly exists: see eg Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [27]-[29] (per Flick J). In this sense, there is no deference to the Tribunal, nor should any ambiguity necessarily be resolved in the Tribunal’s favour.

56    At the outset we should indicate that we do not find it helpful to survey other decisions of the Court which have needed to consider the reasoning of the various tribunals confined as they must be to the facts before them.

57    We were referred to a number of decisions, including the decision of this Court in SRBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1387 and DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 (the latter dealing with the use of numerical analysis and no genuine consideration being given to the applicant’s personal circumstances). These decisions depended entirely on the relevant Tribunal’s reasoning and circumstances before the Tribunal. To the extent those decisions were relied upon to demonstrate that the Tribunal should not just focus on statistical information or projections divorced from the situation confronting the individual applicant, as we have indicated, that is accepted and we consider it not in dispute.

58    Returning then to the reasons of the Tribunal in the appeal before us, the Tribunal correctly set out the definition of the term “refugee” and explained correctly (at [12]) in terms of the High Court authority referred to above:

… an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

59    Then, it is clear that as a matter of fact, the Tribunal did not accept that the appellant would face a real chance of serious or significant harm as a consequence of sectarian and generalised violence in the Kurram Agency. As is apparent from reading [49]-[86] of the Tribunal’s reasons in their entirety, there were many aspects of the evidence which led the Tribunal to this factual conclusion. The Tribunal identified, having regard to country information about the situation in Pakistan, a number of important factors leading to its ultimate view:

(1)    the Kurram Agency had “been a violent region of Pakistan, in particular between April 2007 and February 2012” ([50]);

(2)    the level of violence in Parachinar and the surrounding area had, since July 2013, been “limited” ([52]);

(3)    there were some reported incidents of sectarian and generalised violence in the Kurram Agency in 2014 and 2015, the last and most significant of which was a bombing in a market in Parachinar on 13 December 2015 ([53]-[62]);

(4)    there had, however, been no incident in Parachinar leading to “significant civilian casualties” between July 2013 and December 2015 ([60]);

(5)    overall, and even having regard to the incident in December 2015, there had been “a sustained improvement in the security situation in the Kurram Agency since 2013” ([79]) and the area had witnessed “a significant decline in the violence” for an extended period of time ([80]);

(6)    more recent incidents of violence in the Kurram Agency, including the incident in December 2015, were “isolated and limited” and “anomalous” ([79]-[80]); and

(7)    people displaced by violence in the Kurram Agency had begun returning to their former places of residence in 2014 ([63]-[68]).

60    Therefore, in our view, even faced with conflicting evidence, the Tribunal had a repetition of events which led it to conclude that there was a significant reduction in levels of sectarian violence, even after considering the one event in December 2015, which was assessed by the Tribunal as “anomalous”. As such the Tribunal considered that it would be premature or “mere speculation” to conclude that this attack – the first such attack in Parachinar for almost two and a half years – marked a definite change in the security situation. The phrase “mere speculation” in this context only meant to emphasise the guesswork that the Tribunal thought was necessary to assume a change for the worse in the security situation, which it was not prepared to undertake.

61    The Tribunal then considered that given that this improvement in the security situation in the appellant’s home region had been ongoing for an extended period, there were grounds to determine that the prospect that the situation in the appellant’s home region would remain peaceful, now and in the reasonably foreseeable future, was quite high ([84]).

62    It is true that the Tribunal gave more weight to the period of relative calm between 2013 and 2015, but it did have regard to the period of violence in the Kurram Agency prior to 2013 and the incident in December 2015. We would not characterise the position of the Tribunal as treating the period from 2013 to 2015 as representative of the “norm”. There was no burden on the appellant to persuade the Tribunal from a pre-determined position, nor do we consider the Tribunal started from any such position. Rather, the Tribunal placed greater weight on events at that time as a predictive guide to the likelihood of events occurring in the reasonably foreseeable future. This was the prediction or assessment as to future events, based on the evidence of what had occurred in the immediately prior two years, and led to the assessment made at [84]. We consider that approach was open to the Tribunal.

63    As we have said, the main focus of the submissions before us was on [79]-[85] of the reasons of the Tribunal. In that part of the reasons, the Tribunal does refer in the context of a chance or risk of harm to the chance (or risk) being remote or speculative (see [85]). As we have indicated above in dealing with the true enquiry, it may lead to error to focus on such notions as ‘speculative’ in this context. However, in considering an assessment of the future, there must be some degree of speculation (as distinct from guesswork) based upon present and past information. For instance, one is speculating in this sense about the future when one is considering and making a finding as to whether further sectarian violence may occur and if so, whether a particular individual is likely to be affected by or caught up in it. However, on the ultimate issue the question always remains that dictated by the principles outlined in Chan and Guo to which we have referred above. The inquiry being fact intensive, and involving assessment of evidence and material which is qualitative and may tend in different directions, it is also possible that different decision-makers may assess the material before them differently. The task for each decision-maker is, relevantly, to determine what she or he is satisfied the reasonably foreseeable future holds for the individual applicant on return to her or his country of nationality, in terms of her or his articulated fear of persecution.

64    Although we have some reservations about its use of the term, we consider it was open to the Tribunal to conclude that the attack on 13 December 2015 was “anomalous”, in the sense of an event not likely to be repeated in that area in the foreseeable future. The Tribunal uses that description of the terrorist attack in Parachinar on 13 December 2015 at [79] and [83] of its reasons. On the material before the Tribunal, and as it accepted, Parachinar and the Upper Kurram Agency had a long history of sectarian violence by Sunnis directed at the Shia population in those regions, especially Pashtun Shias from the Turi tribe. The Tribunal did not, we consider, use the term “anomalous” to mean out of the ordinary, because that would not be a reasonable finding in a region such as Parachinar. Rather, as its reasons at [83] suggest, when it couples the term “anomalous” with the description “isolated”, the Tribunal is referring to that incident being out of step with the otherwise relatively consistent trend of a decline in violence in that area.

65    If it was open, in its fact finding, for the Tribunal to essentially discount or put to one side the 13 December 2015 incident in Parachinar as not probative of the level of risk likely to face the appellant should he return to the area, then on the basis of all of the evidence before the Tribunal, it was open to it to reject the appellant’s fears as well-founded because the risks of him being harmed in future sectarian violence were “remote”, in the context of the improvement of the security situation in Parachinar, the main town in the Upper Kurram Agency, and the place where the appellant was likely to return. Obviously, one of the important considerations of fact for the Tribunal was the overall and ongoing security situation in Parachinar in particular, and the Upper Kurram Agency and the Kurram Agency more broadly. On this matter, the Tribunal found the prospect of the situation remaining peaceful was “quite high”, having found (at [79]) that the 2013 truce was holding. This was a finding open to it, and was a finding of fact as to the likelihood of a future event. It was not a finding as to the ultimate issue of whether the fear of the appellant was well-founded.

66    On this factual foundation, that the security situation being peaceful would remain, which related to the remoteness of the appellant suffering harm from any sectarian violence, the Tribunal found that there was not a real chance of the appellant suffering that harm. The Tribunal could then (as it did) conclude that the fear was not “well-founded” in accordance with the established principles it referred to in the beginning of its reasons at [12] and which we have referred to above.

DISPOSITION

67    For the above reasons, the appeal should be dismissed with costs.

68    The Court expresses its gratitude to Mr NM Wood and Mr JE Hartley who represented the appellant on a pro bono basis.

Associate:

Dated:    18 March 2019