FEDERAL COURT OF AUSTRALIA

AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48

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. I do not wish to add anything to their Honours’ reasons with respect to the first ground of appeal. However, I wish to add a few words of my own with respect to the second ground of appeal. For that purpose, I gratefully adopt their Honours’ statement of the facts.

2    The focus of the appellant’s second ground of appeal was [67] and [68] of the Tribunal’s reasons which are as follows:

67.    The Tribunal also considers that the more recent death of the applicant’s brother in November 2014 was due to the undirected violence in the area, and not any specific targeting of the applicant’s brother. The nature of the device used is that it does not target a person because of personal attributes, aside from the likelihood of their passing that particular location. As discussed above, the Tribunal considers that the motivation of the persons who placed the mine in a location that could cause harm to a people in the vicinity when it was triggered by was to maintain a level of general violence in the area. That his brother and nephew were harmed in an incident over five years after the applicant had been harmed is certainly unfortunate. However again, considering the prospect of the applicant being harmed in such a manner in his home region, the Tribunal does not accept that the chance or risk facing the applicant is any more than remote or insubstantial. The Tribunal does not accept that the prospect of the applicant being harmed in this manner is anything more than a remote chance or risk.

68.    The Tribunal has considered the prospect that the applicant will be harmed by general or indiscriminate violence in his home region of Pakistan. The Tribunal accepts that there has been violence in the applicant’s home region in the past. However the Tribunal does not accept on the evidence before it that there are particular factors which will increase the risk of the applicant being harmed in the context of the sorts of terrorist attacks that have occurred previously in Pakistan. In other words, the risk to him is the same as that to any other inhabitant of his region. Given the level at which attacks have recently occurred in the applicant’s home location, and given that the Tribunal does not accept on the evidence before the Tribunal that there are particular factors which will increase the risk of the applicant being harmed in the context of these sorts of attacks, the Tribunal considers that the chance or risk to him in the context of these sort of attacks in his home region is remote.

3    The appellant submitted that the Tribunal’s conclusion that the recent death of the appellant’s brother was due to the undirected violence in the area and not any specific targeting of the appellant’s brother and that a similar analysis applied to the risk of harm faced by the appellant was not determinative of whether the appellant faced a real chance of being a victim. Furthermore, the appellant submitted that no Convention “nexus” is required to attract the operation of the complementary protection criterion. I accept both of these propositions.

4    The appellant went on to submit the following:

Implicit in the Tribunal’s reasoning is that, while some persons in the area may be victims of the “indiscriminate” mortar firers and bomb layers, it is speculative which persons may be victims, and there is therefore no “real chance” of the appellant being a victim. Such reasoning also involves error – a misunderstanding or misapplication of the law.

(Appellant’s emphasis.)

I do not accept that the proposition identified is implicit in the Tribunal’s reasons.

5    The starting point is that in not only in the introductory section of its reasons (at [13]), but also in the substantive part of its reasons (if I may use that expression) (at [56]–[60]), the Tribunal stated the law by reference to Chan v Minister for Immigration and Ethic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. The Tribunal’s statement as to the meaning of “well-founded fear” and a real chance was, in my respectful view, correct. The Tribunal was clearly aware that a person can have a well-founded fear of persecution even though the possibility of persecution occurring is well below 50 per cent (at [59]).

6    The Tribunal certainly considered whether the appellant would be “personally targeted” (at [61]) or the subject of “specific targeting” (at [67]) for one or more of the Convention reasons he claimed. Such a consideration was clearly relevant because it bore on the assessment of the risk of harm. However, it was not decisive and I do not think the Tribunal treated its finding that he was not personally targeted as decisive. For example, in [63], the Tribunal said:

63.    The Tribunal discussed with the applicant the motivations of the people seeking to harm the local population through violent action, such as the mortar shells that fell in the applicant’s vicinity, or more recently, as provided by the applicant, the death of his brother and nephew as a result of a mine placed on a road that detonated near the vehicle the applicant’s brother was driving. The Tribunal considers that the motivation of the mortar firers, or the layers of the mines, is to cause general violence in the area. The appropriate consideration is to whether there is a real chance or a real risk that the applicant will be caught up in such violence.

(Emphasis added.)

It is clear from this passage that the Tribunal was aware of the need to consider whether the generalised violence meant that the appellant faced a real chance or a real risk of harm.

7    If one then turns to the fifth sentence of [68] of the Tribunal’s reasons, it seems to me that the reference to “Given the level at which attacks have recently occurred in the applicant’s home location …” is a reference to its earlier findings and, in particular, its conclusion in [54] that “the violence has certainly dissipated to a significant extent …”.

8    The Tribunal identified the correct legal test and considered the chance or risk that the appellant would face harm from generalised violence. It reached the conclusion that the chance or risk was remote. Although that assessment was strongly contested before the Tribunal, the Tribunal’s conclusion was one that was open to it.

9    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

10    The appellant appeals from a judgment of the Federal Circuit Court given on 22 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.

11    The appellant is a national of Pakistan, from the town of Parachinar in the Upper Kurram Agency, which is part of the Federally Administered Tribunal Areas (the ‘FATA’) region of Pakistan. He is a Shia Muslim of Pashtun ethnicity, and a member of the Turi tribe.

12    On 12 November 2012, the appellant made an application for a protection visa, which outlined the appellant’s claims to invoke Australia’s protection obligations and thereby satisfy the criteria in s 36(2) of the Migration Act 1958 (Cth) (the ‘Act’). The Minister ultimately refused to grant the protection visa on 15 July 2013. The appellant later expanded on his claims to invoke Australia’s protection obligations at his hearing before the Tribunal on 28 October 2014 and provided further evidence in two post-hearing written submissions dated 14 November 2014 and 21 January 2015. In general, the appellant’s claims related to violence in his home area of the Kurram Agency.

13    When it ultimately made its decision on 25 March 2015, the Tribunal concluded that the violence in the region had “dissipated to a significant extent” ([54]). The Tribunal had found that “the records of violence in the area has [sic] been limited to reports from April 2014 when two soldiers were shot at” ([54]).

14    Before the primary judge, the appellant advanced two grounds of review.

15    The first ground of review focussed on the Tribunal’s finding that “the records of violence in the area has [sic] been limited to reports from April 2014 when two soldiers were shot at”, and the Tribunal’s failure to deal lawfully with other relevant material before it.

16    In relation to this first ground, the primary judge found that:

(1)    “The Tribunal was quite aware of the tragic recent death of the applicant’s brother and nephew and the serious injury to his niece” ([41]).

(2)    “It is possible that the Tribunal erred in overlooking” a suicide bombing incident in Parachinar. “Nonetheless, an error of this sort would, in my opinion, be an error of fact and the Tribunal is able to make such errors whilst still exercising its jurisdiction” ([42]).

(3)    “Looked at fairly and as a whole, the reality is that there was evidence wholly outside the various attacks referred to by the parties that might support the finding the Tribunal reached. The return of the applicant’s brothers and the return of numbers of persons through the UNHCR would, in my view, fairly sustain a finding to this effect in any event” ([42]).

(4)    “… I do not think that any failure by the Tribunal correctly to analyse the particular instances relied on by the applicant vitiates the exercise of the Tribunal’s power. ... The better and fairer view is that the Tribunal in paragraph 54 was, as the [Minister] submits, referring to those matters which the Tribunal had actually accepted” ([43]).

17    The appellant’s second ground of review was advanced before the primary judge in the form of two alternative limbs. The first limb was to the effect that the Tribunal’s reasoning (at [68]) involved an errant application of s 36(2B)(c) of the Act. That limb of the appellant’s argument below was not pressed on appeal. However, the second and alternative limb was to the effect that the Tribunal had misunderstood and misapplied the real chance test (to which we will later refer in these reasons). In particular, in determining the applicant’s “generalised violence” claim (including to invoke the complementary protection criterion) it was irrelevant whether the appellant was “specifically targeted” (cf [67]). And the fact that there were no “particular factors which [would] increase the risk of the applicant being harmed in the context of these sorts of attacks” (compared to other persons) was also irrelevant (cf [68]).

18    The primary judge determined the first limb of the argument, but did not determine the second and alternative limb of the argument.

BACKGROUND

Appellant’s claims

19    The appellant claimed to fear harm in his home area of the Kurram Agency, both in the form of violence directed against Shias, Pashtuns and Turis, and also as a consequence of “generalised” violence in the area.

Tribunal’s decision

20    At the hearing on 28 October 2014, the Tribunal suggested to the appellant “a view” that country information showed that violence in the Upper Kurram Agency had since significantly reduced ([43]). In response to that suggestion, after the hearing, on 21 January 2015, the appellant provided evidence as to incidence of violence in that region. It was submitted by the appellant that the evidence not dealt with by the Tribunal included:

(1)    in April 2014, a Shia taxi driver had been shot by gunmen near Parachinar;

(2)    in November 2014, there was a further attack on a vehicle, and school children and a bus driver were killed; and

(3)    on 18 November 2014, the appellant’s brother and nephew were killed, and his niece was injured, when their van exploded a mine on the road.

21    Of the evidence of the three incidents of violence referred to above, the Tribunal only expressly referred to one, namely the incident on 18 November 2014. Of that incident, the Tribunal said:

(1)    “[T]he applicant’s agent has stated that the applicant’s brother was killed due to his van hitting a mine on the road. While this is certainly very sad news for the applicant, the Tribunal notes that mines are a further indiscriminate weapon that is not designed to target any particular person aside from those who may use that road. The Tribunal does not consider that the laying of a mine was a direct attack on the applicant’s family, but that the applicant’s brother and nephew were the unfortunate victims of this indiscriminate attack” ([42]).

(2)    The death of the appellant’s brother and nephew was caused by people “seeking to harm the local population through violent action”. “[T]he motivation of the mortar firers, or the layers of the mines, is to cause general violence in the area” ([63]).

(3)    The “death of the applicant’s brother in November 2014 was due to the undirected violence in the area, and not any specific targeting of the applicant’s brother. … [T]he Tribunal considers that the motivation of the persons who placed the mine in a location that could cause harm to a people [sic] in the vicinity when it was triggered was to maintain a level of general violence in the area” ([67]).

22    As to the risk of the appellant falling victim (like his brother, nephew and niece) to this “undirected violence”, the Tribunal concluded at [68] as follows:

... The Tribunal accepts that there has been violence in the applicant’s home region in the past. However the Tribunal does not accept on the evidence before it that there are particular factors which will increase the risk of the applicant being harmed in the context of the sorts of terrorist attacks that have occurred previously in Pakistan. In other words, the risk to him is the same as that to any other inhabitant of his region. Given the level at which attacks have occurred recently in the applicant’s home region ... the Tribunal considers that the chance or risk to him in the context of these sort of attacks in his home region is remote.

23    The Tribunal accepted that the appellant was injured in 2009 when mortar shells exploded near his house. It considered, however, that this incident occurred “in the context of the broader violence going on in the region during 2009, when there were insurgent groups seeking to disrupt the region as part of a broad dispute with the Pakistani government and the majority Shia population of this region” ([64]).

24    The Tribunal found that, if the appellant were to return to his home area in the Kurram Agency in the reasonably foreseeable future, the chance of him being caught up in such violence was “remote and unsubstantial” and was therefore not a “real chance” ([66]).

25    Although the Tribunal accepted that some of the appellant’s family members had been killed and seriously injured in 2014 when their motor vehicle hit a mine, it did not accept that the chance of the appellant facing such harm was “any more than remote or insubstantial” ([67]).

26    The Tribunal considered country information about the improved security conditions in the Kurram Agency and the appellant’s own evidence about his brothers’ return from Dubai to the Kurram Agency ([43]-[56]). At [55]-[56] the Tribunal found:

[55]    The UNHCR has provided evidence of their attempts to return people to the regions of Kurram, lower, central and upper Kurram. These reports show that relatively significant number [sic] are willing to return, provided they are provided with appropriate assistance to rebuild shelters and develop the agricultural tools required for the purpose of maintaining their livelihoods. While the Tribunal acknowledges that the information relates to IDPs, not individuals who are outside of the country, the Tribunal considers that it is highly relevant that there are concerted efforts by the UNHCR to return people to the region of Pakistan that the applicant comes from, and that people are choosing to return voluntarily.

[56]    The Tribunal considers that the actions of his own family members are highly instructive as to the fear of harm that is felt by his family. The applicant acknowledged that his own brothers, who reside outside of Pakistan in Dubai, have returned to the Parachinar region where their families are located. The Tribunal considers that this information, where they are returning despite the supposed risk of harm, is relevant in considering whether the applicant himself faces a real chance or real risk of significant harm on return to his home region. That they are prepared to return to their homes and family in Upper Kurram is a relevant consideration in the Tribunal's assessment of the applicant's claims.

27    The Tribunal found at [61] that:

… While there certainly was a campaign of violence that targeted Shia Pashtun Turi from the Upper Kurram region, the Tribunal considers on the country information it has read, including that submitted by the applicant’s agent, the Tribunal decisions and relevant information included therein, and the material as provided above, that the situation in the Upper Kurram Agency has improved to the extent that the risk of the applicant being harmed can only be considered to be remote or insubstantial. 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.

28    The Tribunal found that, if the appellant were to return to the Kurram Agency in the reasonably foreseeable future, he would not face a real chance of serious or significant harm for any of the reasons claimed by him ([62]). Accordingly, the Tribunal found that the appellant did not satisfy any of the visa criteria in s 36(2) of the Act ([75]-[77]).

Federal Court appeal

29    Before this Court the appellant raised two grounds of appeal as follows:

(1)    The primary judge erred by dismissing the first ground referred to above for the following reasons:

(a)    The appellant provided cogent and relevant evidence to the Tribunal as to recent incidents of violence in his home area of Pakistan.

(b)    Contrary to the primary judge’s reasoning (at [42]), if the Tribunal “overlooked” any of that evidence, then it would have made a jurisdictional error.

(c)    The primary judge’s own view (at [42]) to the effect that the Tribunal’s decision was sustainable on the merits, on the basis of other evidence, was irrelevant and involved a misconception of the Court’s function.

(d)    The primary judge was wrong to conclude (at [43]) that the Tribunal did not “overlook” the evidence provided by the appellant, but instead simply did not accept it as true.

(2)    The primary judge erred by dismissing the second ground referred to above for the following reasons:

(a)    The Tribunal accepted that there were people in the appellant’s home region that were firing mortars, laying mines, and were motivated to “maintain a level of general violence in the area”. Indeed, the Tribunal accepted that such people had been responsible, recently, for the deaths of the appellant’s brother and nephew.

(b)    The Tribunal’s reasoning in rejecting the appellant’s claim to have a real chance of being a victim of such violence was opaque.

(c)    Insofar as the Tribunal found (at [67]) that the appellant would not face a real chance of being a victim because he would not be “specifically targeted”, that involved a misunderstanding of the visa criteria.

(d)    Insofar as the Tribunal found (at [68]) that the appellant would not face a real chance of being a victim because he would face the same risk as any other member of the population, that involved a misunderstanding of the visa criteria.

(e)    Insofar as the Tribunal found (implicitly) that the appellant would not face a real chance of being a victim because, while some persons in the appellant’s home area may fall victim to the violence, it is speculative to conclude that the appellant will be one of those victims, that involved a misunderstanding of the visa criteria.

RELEVANT LEGAL PRINCIPLES

30    This appeal was heard together with AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 (‘AKH16’). The same Tribunal member decided the reviews in both of the appellants’ cases, one in March 2015 (this appeal) and one in January 2016 (AKH16). 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, was similar to its consideration of country information in the review of the appellant in AKH16.

31    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.

32    Both this appeal and AKH16 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).

33    This appeal, like AKH16, concerns the state of the law to be applied by the Tribunal prior to these amendments.

34    The criteria for a protection visa, and in particular 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’), was relevantly incorporated into the criteria in s 36(2) of the Act.

35    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”.

36    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’).

37    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)

38    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)

39    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)

40    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)

41    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)

42    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.

43    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.

44    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).

45    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.

46    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)).

47    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).

48    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”.

49    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.

50    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).

51    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.

52    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

First ground of appeal

53    We should say at the outset, the appellant submitted a number of legal propositions concerning the failure to consider evidence and whether this can amount to jurisdictional error, the function of the review court in considering for itself the merits of a particular claim, the significance of an error of fact in a chain of reasoning and whether, in circumstances where some intermediate fact-finding is illogical and irrational, this can lead to an ultimate decision of a tribunal being vitiated.

54    We have not found it necessary to consider these matters, because as will be apparent, we do not accept the appellant’s characterisation of the Tribunal’s findings or the appellant’s characterisation of the Tribunal’s approach to the statutory task required of it.

55    Fundamentally, we do not accept the foundation for all the appellant’s legal arguments that the Tribunal overlooked relevant and cogent evidence as to the incidence of violence in the appellant’s home area since April 2014, or that the Tribunal’s finding at [54] was not open to it in light of the evidence. It was on the basis that the Tribunal overlooked relevant and cogent evidence that the appellant submitted the Tribunal fell into jurisdictional error.

56    It is important to view the reasons of the Tribunal as a whole. The Tribunal considered a number of relevant matters pertaining to the appellant and his home area:

[24]    A submission was provided by the applicant’s agents to the Tribunal. This stated that if the applicant was to relocate outside of Kurram Agency, he would seek to remain within tribal ties, who could assist in employment, family creation and social acceptance. There are limits on freedom of movement for security purposes, despite the Constitution permitting that right. His name identifies him as a Shia. He would find it difficult to get work in Pakistan, only completing matriculation. He has no qualifications, and his Urdu is limited. Information about the prospect of being harmed in other parts of Pakistan, including Karachi, Islamabad, Rawalpindi and Lahore [sic]. State protection was not available.

[25]    A submission was received after the hearing, locating the applicant’s home region which had been misspelt in previous submissions to the Tribunal. The submission provided country information, including information from DFAT, the US State Department and other sources. The information referred to in the submission related to events DFAT reports from 2013 and prior, and a Tribunal reference to violence in June 2014.

[26]    It was submitted that the applicant could not relocate, he would be recognizable by his accent and appearance and as a Pashtun, a tribal Shia Pashtun by his religious practice, he has no formal work skills and has a permanent injury to his hand, and he has no connection outside of Kurram and has no financial support.

[27]    A further submission was received after the hearing. This stated that on 18 November 2014 the applicant’s brother was killed when his van hit a mine on the road, also killing the applicant’s nephew and injuring his niece. It was also submitted that other Tribunal members had made findings that Kurram remained a dangerous location within Pakistan, and referred to findings made by other Tribunal members that there was a real chance of harm arising out of Shia, Pashtun and Turi tribe background, again referring to incidents from June 2014 and prior to that.

…

[42]    Subsequently the applicant’s agent has stated that the applicant’s brother was killed due to his van hitting a mine on the road. While this is certainly very sad news for the applicant, the Tribunal notes that mines are a further indiscriminate weapon that is not designed to target any particular person aside from those who may use that road. The Tribunal does not consider that the laying of a mine was a direct attack on the applicant’s family, but that the applicant’s brother and nephew were the unfortunate victims of this indiscriminate act.

[43]    The Tribunal put to the applicant a view that the country information regarding the Upper Kurram Agency showed that the violence in this region had significantly reduced. The Tribunal noted that there had been an attacked [sic] that had killed seven people in June 2014, however this attack actually occurred near Peshawar, with the bus heading towards the Upper Kurram Agency, as per the country information provided by the applicant. This violence was not actually in Upper Kurram. Other country information, including that referred to by other Tribunal members, including the DFAT information, was of incidents in the region that predated that event. The Tribunal put to the applicant that the violence in his home area had significantly decreased, to the point where the Tribunal was considering whether the prospect of the applicant being harmed was one that was remote or insubstantial. The applicant stated that he believed he would be harmed in this region.

…

[52]    The Tribunal, including this member and others, have made decisions regarding applicant’s from the Parachinar region, including making findings that certain applicants cannot return to the Upper Kurram region that they have come from. These decisions have considered the country information available, and as the agent’s submissions point out, have determined that people cannot return to that location in Pakistan.

…

[54]    In this instance, the Tribunal has considered the country information pertaining to Kurram Agency. While there has been ongoing violence in the area for an extended period of time, the information that the Tribunal has considered is that the violence has certainly dissipated to a significant extent, such that the records of violence in the area has been limited to reports from April 2014 when two soldiers were shot at. The report from June 2014 was of an incident outside the Kurram area.

57    The appellant took particular issue with [54] of the Tribunal’s decision. It was submitted that the Tribunal’s statement that “records of violence in the area” had been “limited to reports from April 2014 when two soldiers were shot at” indicates that the Tribunal must have failed to consider other information before it about violence in Pakistan in 2014.

58    We do not accept this submission. The important finding in [54] was that violence in the Kurram Agency had “certainly dissipated to a significant extent”. Other information about violence in Pakistan in 2014 was set out in a written submission dated 21 January 2015 lodged with the Tribunal by the appellant’s representative which made reference to another Tribunal decision. By the terms of its decision, the Tribunal clearly had regard to those submissions and their contents. At [27] of its reasons it stated:

A further submission was received after the hearing. This stated that on 18 November 2014 the applicant's brother was killed when his van hit a mine on the road, also killing the applicant's nephew and injuring his niece. It was also submitted that other Tribunal members had made findings that Kurram remained a dangerous location within Pakistan, and referred to findings made by other Tribunal members that there was a real chance of harm arising out of Shia, Pashtun and Turi tribe background, again referring to incidents from June 2014 and prior to that.

59    The appellant’s post-hearing submission provided the following information:

2.    Since the time of the Tribunal hearing there has been a significant development concerning the Applicant’s family situation in Pakistan. I am instructed that on 18 November 2014 the Applicant’s brother … was killed when his van hit an unexploded mine while he was driving his nephew and niece to school. The Applicant’s nephew … was also killed in the explosion and his niece … was seriously injured.

…

4.    Since the time of the Tribunal hearing the Tribunal has considered this issue on several occasions. The Tribunal has repeatedly found on the basis of available country information that there is a real risk that Shia Muslims and members of the Turi Tribe returning to Kurram Agency will face persecutory harm on the basis of their religion, ethnicity and imputed political opinions in opposition to the Taliban. In 1407214 [2014] RRTA 841 (25 November 2014) the Tribunal provided the following useful summary of the current situation for Turi Shias in Kurram Agency:

…

As to the current security situation in Parachinar and its surrounding villages, sectarian violence has been reported to have declined significantly in Kurram Agency between 2009 and 2011. However attacks on Shias in Kurram Agency have reportedly continued over the past 12 months:

    October 2013: One person was killed and two injured when militants reportedly associated with the Taliban attacked a house in Parachinar. Those injured were identified as being Shia.

    November 2013: Three persons were killed and several injured in separate bombing incidents in Parachinar. Although mainstream newsagencies do not report the victims' religious affiliation, a Shia news site and a Pakistan Equality and Human Rights Commission (PEHRC) report describe them as Shia.

    December 2013: Two people were killed and six injured in separate incidents in Parachinar on the same day.

    January 2014: One person … was seriously injured when a bomb detonated in Pewar, in central Kurram.

    March 2014: a driver was critically injured by a roadside blast in Parachinar. The bomb is reported to have been planted by militants.

    April 2014: the pro-Shia news source Shia Post reported that a Shia taxi driver had been pulled out of his car and shot by Taliban gunmen near Parachinar.

…

5.    The Tribunal made similar findings in 1319201 [2014] RRTA 835 (2 December 2014) and stated that:

The Tribunal accepts that even since the Parachinar-Thall road reopened that there have continued to be sporadic attacks by militants against Shias and the presence of military checkpoints and escorts has not prevented militants from attacking convoys travelling on the road. The reports also indicate that in May 2012 several Shia passengers were injured following an ambush on their bus which was on route from Parachinar to Peshawar on the Parchinar-Thall Road in Lower Kurram and there were reports of acid attacks targeting commuters in 2012. There were further reports in April and June 2014 of passengers being killed on the roadside near Parachinar. Recent reports also indicate that some seven people were killed in the most recent attack in Peshawar in October 2014. The Tribunal accepts the applicant’s evidence during the hearing that a further attack took place in November 2014 and school children and the bus driver were killed. The Tribunal accepts that the recent information also indicates that the authorities have been powerless to prevent violence in the area for various reasons and to prevent attacks against persons travelling on the Parachinar-Thall road which is the main access road between the Kurram Agency and other parts of Pakistan.

The Tribunal is satisfied, having regard particularly to the continuing nature of violent attacks against Shias using the Parachinar-Thall road, that the applicant faces a real chance of persecution for reasons of his religion and ethnicity if he returns to his home in Parachinar in the Upper Kurram Agency, now or in the reasonably foreseeable future. The Tribunal also finds that the protection offered to persons by the Pakistani authorities in the Kurram Agency is inadequate and not of a standard that its citizens are entitled to expect. In such circumstances, the Tribunal accepts that there is a real chance that the applicant would be harmed upon his return to Parachinar. The Tribunal also accepts that the significant and essential reason for this would be because he is a Shia, Pashtun from the Turi tribe.

60    Whilst the Tribunal in this case did not reach the same conclusions that were arrived at by a differently constituted Tribunal in the other decision to which the appellant’s submission referred, the Tribunal was aware of the information as to the specific incidents, and by incorporation by reference to the earlier decision took that information into account ([52]).

61    Whether or not the Tribunal referred expressly to the April 2014 and November 2014 incidents identified by the appellant (aside from the incident with his family members), it cannot be said that the Tribunal did not consider (by reference) the evidence of recent incidents of violence in the Upper Kurram Agency. The Tribunal was expressly looking at incidents of violence occurring throughout 2014.

62    In addition, we do not assume that the Tribunal did not accept as true the appellant’s evidence of the April 2014 and November 2014 incidents. In the context of the other information, the Tribunal was not persuaded that these incidents meant that violence had not “dissipated to a significant extent” in more recent times, accepting that such incidents did in fact occur.

63    On this basis, it cannot be said that the Tribunal overlooked relevant and cogent evidence, or that the finding at [54] of the Tribunal’s reasons was not open to it. In circumstances where the Tribunal referred to the other Tribunal decisions (and specifically the one referred to in the appellant’s submission dated 21 January 2015), and considered their impact, we would not expect that the Tribunal would have needed to refer to each of the matters specifically mentioned in the other Tribunal decisions, nor to every incident drawn from country information which might be mentioned in a submission to the Tribunal. Therefore, we do not infer that the evidence now relied upon by the appellant (not expressly mentioned by the Tribunal in the body of its reasons) was in fact overlooked.

64    In some circumstances, it might be the case that a failure to refer to particular events set out in country information indicates a decision-maker did overlook critical matters capable of affecting the outcome of a decision. That is not this case.

65    It was open to the Tribunal to find that, having regard to country information before it, violence in the Kurram Agency had “dissipated to a significant extent” in more recent times. The Tribunal’s findings do not evince any failure by the Tribunal to consider the appellant’s claims to be owed protection obligations or the evidence in respect of them.

Second ground of appeal

66    The context of the Tribunal’s findings that are relevant to this second ground of appeal are as follows:

[61]    The Tribunal does not accept that the applicant has been personally targeted because he is a Shia Pashtun Turi from the Upper Kurram region. The applicant has lived in that region for an extended period of time without being targeted for harm for this reason. While there certainly was a campaign of violence that targeted Shia Pashtun Turi from the Upper Kurram region, the Tribunal considers on the country information it has read, including that submitted by the applicant’s agent, the Tribunal decisions and relevant information included therein, and the material as provided above, that the situation in the Upper Kurram Agency has improved to the extent that the risk of the applicant being harmed can only be considered to be remote or insubstantial. 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.

…

[63]    The Tribunal discussed with the applicant the motivations of the people seeking to harm the local population through violent action, such as the mortar shells that fell in the applicant’s vicinity, or more recently, as provided by the applicant, the death of his brother and nephew as a result of a mine placed on a road that detonated near the vehicle the applicant’s brother was driving. The Tribunal considers that the motivation of the mortar firers, or the layers of the mines, is to cause general violence in the area. The appropriate consideration is to whether there is a real chance or a real risk that the applicant will be caught up in such violence.

[64]    The Tribunal accepts that the applicant may have been injured when undirected mortar shells fell in his general vicinity in 2009. The Tribunal considers that this violence occurred in the context of the broader violence going on in the region during 2009, when there were insurgent groups seeking to disrupt the region as part of a broad dispute with the Pakistani government and the majority Shia population of this region.

…

[66]    The Tribunal considers that the harm suffered by the applicant was not violence directed specifically at him by any group or individual. The applicant was harmed in general shelling in the vicinity of his home. That the applicant was affected by one such incident is accepted by the Tribunal The Tribunal considers that the real chance or the real risk of the applicant being caught up by such violence is one that is remote and unsubstantial, and not one that is a real chance or a real risk of occurring.

[67]    The Tribunal also considers that the more recent death of the applicant’s brother in November 2014 was due to the undirected violence in the area, and not any specific targeting of the applicant’s brother. The nature of the device used is that it does not target a person because of personal attributes, aside from the likelihood of their passing that particular location. As discussed above, the Tribunal considers that the motivation of the persons who placed the mine in a location that could cause harm to a people in the vicinity when it was triggered by was to maintain a level of general violence in the area. That his brother and nephew were harmed in an incident over five years after the applicant had been harmed is certainly unfortunate. However again, considering the prospect of the applicant being harmed in such a manner in his home region, the Tribunal does not accept that the chance or risk facing the applicant is any more than remote or insubstantial. The Tribunal does not accept that the prospect of the applicant being harmed in this manner is anything more than a remote chance or risk.

[68]    The Tribunal has considered the prospect that the applicant will be harmed by general or indiscriminate violence in his home region of Pakistan. The Tribunal accepts that there has been violence in the applicant’s home region in the past. However the Tribunal does not accept on the evidence before it that there are particular factors which will increase the risk of the applicant being harmed in the context of the sorts of terrorist attacks that have occurred previously in Pakistan. In other words, the risk to him is the same as that to any other inhabitant of his region. Given the level at which attacks have recently occurred in the applicant’s home location, and given that the Tribunal does not accept on the evidence before the Tribunal that there are particular factors which will increase the risk of the applicant being harmed in the context of these sorts of attacks, the Tribunal considers that the chance or risk to him in the context of these sort of attacks in his home region is remote.

…

[76]    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

67    It is apparent that the Tribunal accepted that there were people in the appellant’s home region who were firing mortars, laying mines, and were motivated to do so in order to “maintain a level of general violence in the area” ([67]). It is also apparent the Tribunal accepted that (at [64]):

… this violence occurred in the context of the broader violence going on in the region during 2009, when there were insurgent groups seeking to disrupt the region as part of a broad dispute with the Pakistani government and the majority Shia population of this region.

68    In other words, the Tribunal accepted the violence had a sectarian aspect, and was directed at the group to which the appellant belonged.

69    The Tribunal also accepted that those with similar motivations had been responsible for the deaths of the appellant’s brother and nephew, and the injury of his niece.

70    The express reasoning in [67] was that the appellant would not be (as his late brother and nephew, and niece had not been) “specifically targeted”. It was submitted by the appellant that was not determinative of whether, as a member of the population in the area, the appellant faced a real chance of being a victim.

71    It was also submitted by the appellant that the express reasoning in [68] that the risk to the appellant would be the same as that of any other member of the population in the area (such as his late brother and nephew) was not determinative of whether he (among others) faced a real chance of being a victim. Reference was made to Hathaway and Foster at [2.9], and the cases there cited. It was submitted that implicit in the Tribunal’s reasoning is that, while some persons in the area may be victims of the “indiscriminate” mortar firers and bomb layers, it is speculative which persons may be victims, and for that reason there is no “real chance” of the appellant being a victim.

72    It was submitted that it is to misunderstand the “real chance” test that (implicitly) depends on the proposition that uncertainty as to which members of a class of persons will be harmed, when there is a real chance that any one of the members of that class will be harmed, entails the proposition that no member of the class has a real chance of being harmed.

73    The appellant did not make submissions on the basis of the first kind of “particularized evidence rule” to which Hathaway and Foster refer at [2.9], but to the second kind. Hathaway and Foster observe:

Alternatively, a “particularized evidence rule” might be based on a mistaken extrapolation from the principle that persons at risk of generalized, indiscriminate forms of harm are not refugees – that is, that a refugee is a person whose risk of being persecuted is causally connected to one of the five Convention grounds. While it is true that those whose predicament is simply the result of natural disasters or widespread turmoil do not ordinarily qualify as Convention refugees, this is not because the adverse impact falls on large numbers of persons, but rather because of the non-discriminatory nature of such risks. Because refugee law is concerned only with protection from persecution tied to a claimant’s race, religion, nationality, membership of a particular social group, or political opinion, those impacted by natural calamities, weak economies, civil unrest, and even generalized failure to adhere to basic standards of human rights are not by that fact alone entitled to refugee status.

This having been said, refugee law does extend protection in even these situations where there is some element of risk based on one of the five enumerated forms of civil or political status. If the harm is both sufficiently serious and impacts persons by reason of their civil or political status, then a claim to Convention refugee status is made out, however many people are similarly affected. By way of example, the victims of a flood or earthquake are not per se Convention refugees, even if they have fled to a neighboring state because their own government was unable or unwilling to provide them with relief assistance. If, on the other hand, the government of the home state chose to limit its relief efforts to those victims who were members of the majority race, forcing a minority group to flee to another country in order to avoid starvation or exposure, a claim to refugee status should succeed because the harm feared is serious, bespeaks a failure of state protection, and the requisite linkage to civil or political status is present.

(Footnotes omitted)

74    We do not consider that the appellant’s submissions pay sufficient attention to the context of the reasoning of the Tribunal, and we do not consider the Tribunal made the kind of error described by Hathaway and Foster in the extracts above. We have no difficulty in accepting that an approach of the kind described by Hathaway and Foster would likely constitute jurisdictional error as it would involve a fundamental misunderstanding of the operation of the Convention definition of refugee. However, the Tribunal did not make any such error. Rather, it made factual findings, based on the material before it, about the nature and level of the risk of harm it considered the appellant would face if he returned to the Upper Kurram Agency region. It found the risks he would face were the same risks faced by other members of the local population there. It placed those risks at the level of “remote”. There is no misunderstanding of what is meant by “well-founded fear” in what the Tribunal did, even if (as we noted in AHK16) reasonable minds at a merits review level might reach different conclusions by placing different weight on aspects of the material before them.

75    The Tribunal found that the appellant had not been personally targeted in the Kurram Agency ([66]). That was simply a step along the way to the Tribunal forming a view about the nature of the risks he faced. Significantly the Tribunal (at [61]) made a factual finding that the security situation in the Kurram Agency had improved, and that “the prospect that the situation in the [appellant’s] home region will remain peaceful, now and in the reasonably foreseeable future, is quite high”. That factual finding is not challenged on the basis it was not open to the Tribunal.

76    The Tribunal reasoned in the following way having considered the security situation generally. The Tribunal found that no particular factors differentiated the risk faced by the appellant from the risk faced by others in the Kurram Agency. The Tribunal did not accept that the security situation in the Kurram Agency presented anything more than a “remote or insubstantial” risk of serious or significant harm in the reasonably foreseeable future. This finding related to the general population in that area. The Tribunal further found that nothing about the appellant meant that the risk faced by him was increased so that it was more than “remote”. He had not been targeted before, and the Tribunal considered that the risk faced by the appellant was no greater than the “remote” risk generally faced by others. This, in our view, is the meaning to be given to [61], [66], [67] and [68] of the Tribunal’s reasons.

77    Read fairly and in the context of the Tribunal’s decision, the Tribunal’s findings reflect its view of the facts that, in the Upper Kurram Agency, there had been fewer incidents of general violence during 2014, and the region was becoming more stable and peaceful, with people returning, including the appellant’s own family members. Added to this was the Tribunal’s factual finding (not challenged on appeal) that the appellant did not have a profile to differentiate him from others in that area, so that the nature of the risk to be assessed was the risk of the appellant being a victim of the indiscriminate sectarian violence. It was this risk the Tribunal assessed at the level of “remote”.

78    We mention one other matter which attracted discussion during the hearing of the appeal relating to the killing of the appellant’s brother and nephew, and the injury of his niece, by a landmine. The Tribunal considered this in two contexts: first, in the context of the security situation in the region generally, and second, as a factor relevant to the risk to the appellant himself. It was entitled to look at the event in both contexts. Whilst the appellant’s family members had been the victims of general or indiscriminate violence in the area, the Tribunal’s factual finding was that the prospect of the Kurram Agency remaining peaceful in the reasonably foreseeable future was “quite high” (at [61]). The deaths and injuries of the appellant’s family members did not increase the objective risk to the appellant himself, because they were random.

79    In the second context, that the deaths and injury arose from “undirected violence in the area” and not “specific targeting of the appellant’s brother” (or his nephew and niece) ([67]) meant that the reasons for the incident occurring did not alter the Tribunal’s consideration of the risk to the appellant. This was an assessment properly made on the facts before the Tribunal, taking into account the brother’s killing in both the context of the general security situation and the risk to the appellant himself.

80    On this understanding of the Tribunal’s reasons, there is no misconstruction or misapplication of s 36(2) of the Act.

81    We accept that particularly given what happened to three of his close family members, it is difficult for the appellant to see the risks to himself as not reaching the level of a “real chance”. For the appellant, the risks must seem very real indeed: that is a natural human reaction to such a tragic loss of life within his family. However, in this case we consider the Tribunal did not err, in a legal sense, in seeing that tragedy as a random event that should not be found to increase the level of risk faced by the appellant if he were to return to the area. To make that finding, and for this Court to decline to set the decision aside because of it, is not to diminish the loss suffered by the appellant, nor the reality of his fears about returning to Pakistan because of his family’s experiences.

DISPOSITION

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

83    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