FEDERAL COURT OF AUSTRALIA

DZADQ v Minister for Immigration and Border Protection

[2014] FCA 754

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Orders 1 and 2 made on 22 January 2014 by the Federal Circuit Court of Australia are set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the second respondent made on 9 November 2012.

3.    A writ of mandamus be issued, directed to the second respondent, requiring that it hear and determine according to law, the application of the appellant for review of the decision of a delegate of the first respondent made on 15 June 2012 to refuse to grant the appellant a Protection (Class XA) visa.

4.    The second respondent be differently constituted when obeying the writ of mandamus issued under Order 3.

5.    The first respondent pay the appellant’s costs of the appeal, and of the proceeding in the Federal Circuit Court.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant is a 21 year old Shia Muslim man from Pakistan. He left Pakistan on 6 November 2011 and travelled to Indonesia. Subsequently, he boarded a boat from Indonesia and arrived in Australia on 19 December 2011.

2    On 9 May 2012 the appellant applied for a protection visa under the Migration Act 1958 (Cth) (the Act). He claimed to fear harm by reason of his religion if he were to return to Pakistan, because there was ongoing conflict between the minority Shia Muslims and Sunni Muslims, the latter allied to the Taliban. In his case, he was more likely to be targeted because his father held a high ranking position in Pakistan Post and had been attacked by the Taliban in February 2010. He said the Taliban had attempted to kidnap him in May 2010. On 15 June 2012, a delegate of the first respondent determined that the appellant was not a refugee, thus refusing his application for a protection visa. The appellant requested merits review of the decision to the Refugee Review Tribunal (the Tribunal) on 5 July 2012. The appellant was heard by the Tribunal on 24 and 28 September 2012. On 9 November 2012, the Tribunal affirmed the decision of the delegate.

3    The appellant then applied for judicial review of the Tribunal’s decision in the Federal Circuit Court on 26 September 2013 based upon jurisdictional error including the denial of natural justice. On 22 January 2014 the Federal Circuit Court dismissed the application: DZADQ v Minister for Immigration and Border Protection [2014] FCCA 85. The present appeal is an appeal from that decision.

4    This appeal comprised two grounds. First, that jurisdictional error occurred because the Tribunal failed to discharge its procedural fairness obligations by not alerting the appellant that a certain element of his evidence was in issue, despite it being accepted as “plausible” by the delegate. Secondly, that jurisdictional error occurred because the Tribunal failed to take into account relevant considerations, namely the country information about Pakistan which directly applied to the appellant.

5    For the reasons that follow, the appellant succeeds on his second ground of appeal.

The delegate’s reasons

6    The delegate’s reasons are summarised at [11]-[16] of the Federal Circuit Court’s reasons. Although the delegate had general credibility concerns about the quality of the appellant’s claims, the delegate made the following findings:

(1)    the appellant is a Shia Muslim; and

(2)    there is a real chance the appellant would be targeted by the Taliban by reason of his religion if he were to return to Pakistan.

7    Hence, the delegate accepted that his feared harm was serious and systematic. However, the delegate also concluded it was reasonable for the appellant to live and work elsewhere in Pakistan. Accordingly, it was found that there was no well-founded fear of persecution and the visa application was rejected on that basis.

8    The delegate, whilst accepting that the appellant’s father held a high public office and that there had been a massacre of Hazara Shia Muslims in a neighbouring village in November 2010, the aftermath of which the appellant witnessed, did not accept that the appellant’s fear was due to an imputed political opinion as anti-Taliban. The delegate also accepted that the cousin of his father, also a Shia Muslim, had been killed by a land mine explosion in November 2010, but found that the cousin was an unintended victim and that the landmine planted by extremists was not indicative of a particular threat to Shia Muslims.

The Tribunal’s reasons

9    The Tribunal reached the same conclusion, that is that the visa should be reviewed, but it did so by a somewhat different course. The Tribunal’s reasons are summarised at [19]-[32] of the Federal Circuit Court’s reasons. Specifically, the Tribunal concluded that the appellant’s claims were fabricated, and so it was not satisfied that the appellant had a fear of serious harm if he were to return to Pakistan and it concluded that there was no real chance of persecution. It noted a number of factors about the appellant’s evidence to the Tribunal:

(1)    not referring to a threatening phone call in his original application or written submissions;

(2)    inconsistencies in his evidence about where he lived and for what periods;

(3)    inconsistent details regarding the attempted kidnapping;

(4)    inconsistencies in his evidence about his studies and sitting an exam;

(5)    inconsistencies in his evidence and details about his father’s work;

(6)    inconsistent evidence about what happened to his father in February 2010.

10    On that basis, the Tribunal did not accept the following evidence:

(1)    that the appellant’s father was a high ranking official that would led to him and his family being targeted by the Taliban;

(2)    that the appellant witnessed or heard the Shia massacre; and

(3)    that his father’s cousin was killed due to his father’s political affiliations.

The Federal Circuit Court’s Reasons

11    There were in effect three grounds of review advanced before the Federal Circuit Court, all related to the concept of natural justice. The particularised grounds are as follows:

The [Tribunal] denied the applicant procedural fairness and did not comply with its statutory duties by failing to put the applicant on notice of certain issues which arose during the course of the review which were other than those considered dispositive by the delegate.

Particulars

The Tribunal treated the following issues as arising in relation to the review:

(a)    Whether or not the applicant’s cousin was killed in November 2010 as a result of a land mine as claimed.

(b)    That the village next to the applicant’s was attacked and 90 Shia people were killed in November 2010.

Those claims were accepted by the delegate. The applicant was not put on notice that these claims were at issue. The applicant was entitled to rely on the delegate’s decision to determine what the relevant issues. The [Tribunal] failed to accord the applicant procedural fairness, and failed to comply with s 425 of [the Act] by failing to put the applicant on notice about these matters.

The [Tribunal] denied the applicant procedural fairness or committed an error of law or failed to discharge its duty of review by failing to consider an integer of the applicant’s claims and/or by failing to take into account relevant considerations. In particular, the [Tribunal] did not consider the applicant’s claim of harm in Parachinar form where he originates.

Particulars

The applicant’s home was in Parachinar. He had moved around a number of places. He expressed claims about having fears about returning to his home area. The claim was never considered by the [Tribunal].

The [Tribunal] denied the applicant procedural fairness or committed an error of law or failed to discharge its duty of review by failing to consider an integer of the applicant’s claims and/or by failing to take into account relevant considerations and/or failed to have regard to matters it was required to have regard. In particular, the [Tribunal] did not properly consider the country information about specific dangers in FATA and/or Shia.

Particulars

The [Tribunal] failed to take into account or have regard to the country information outlining the significant risks of persecution of Shia Muslims in FATA and/or in Pakistan; and in doing so the [Tribunal] failed to consider the specific integer/s of the applicant’s claim that he as a Shia Muslim faces a real prospect of persecution if he returns to live with his family in their home in Peshawar, in the Federally Administered Tribal Areas of Pakistan (FATA).

12    The appellant’s contention with respect to Ground 1 was that the Tribunal did not provide notice that those two issues would be in dispute because the delegate had accepted them. It is clear that the procedural fairness in relation to this ground concerned the process of the hearing, not the outcome. It was common ground that the Tribunal fulfilled its obligations under s 425(1) of the Act to invite the appellant to appear and present arguments relating to the issues under review. The Tribunal sought additional information and gave the appellant more than one opportunity to place further submissions before it. The contentious issue in relation to Ground 1 was whether the Tribunal ought to have drawn the appellant’s specific attention to two specific issues. Generally, the appellant contended that notice ought to have been given that all of his claims and evidence would be in issue.

13    Procedural fairness principles flowing from s 425(1) of the Act were elucidated by the High Court in SZBEL v Minister for Immigration and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), where it was observed at [35]-[36] by the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) that::

[35]    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

[36]    It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

14    The Federal Circuit Court observed that in SZBEL the Tribunal did not challenge the claims made by that appellant. However, in this matter, the Tribunal had questioned the appellant on many aspects of his evidence and gave him several warnings

15    In SZBEL, the High Court went on at [47]-[48]:

[47]    First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

[48]    Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry (30),

“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

16    The Federal Circuit Court said that it was clear that the Tribunal was concerned about the inconsistencies in the appellant’s claims and evidence. The Tribunal raised this concern on numerous occasions during the hearing. There were serious doubts about his credibility and he was made aware of it. The Federal Circuit Court found that the two specific issues about which the appellant claimed were not raised were not critical issues. Whilst the delegate had accepted those two issues, the visa was rejected on other grounds. Those two issues were not dispositive. Although the Tribunal doubted those two specific events had occurred, its finding was not determinative of the decision. Ultimately, the Federal Circuit Court found that those issues were not material to the decision of the delegate or the Tribunal. Thus, the Tribunal was not required to give specific notice of those two issues and Ground 1 was rejected.

17    With regard to Ground 2, the appellant contended that the Tribunal failed to consider what would happen if the appellant returned to his home village. The Tribunal only found the city of Peshawar in Pakistan to be the relevant consideration. The appellant contended that the Tribunal ought to have considered the Parachinar area, part of the Kurram Agency in Pakistan as well, because it was the place identified in his domicile certificates. The Kurram Agency is one of the seven tribunal agencies in the Federally Administered Tribal Areas (the FATA). The FATA is one of the two Pakistani Territories with the other being the Islamabad Capital Territory. Kurram (with about 42% Shia population) is the only tribal region with a significant Shia population. The Federal Circuit Court rejected this ground on the basis that the appellant did not intend to live in Parachinar, had no connections there, and had not lived there since he was three years old. The appellant’s own documents identified Peshawar as being his home village and where he lived from 2005 up until the time he left Pakistan. Peshawar is the largest city and the administrative centre of the FATA.

18    Ground 3 related to the Tribunal’s obligation under s 424(1) of the Act to have regard to information it receives which it considers to be relevant. The appellant relied on Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 (Khadgi), where the Full Court of the Federal Court stated at [59]:

A court would not necessarily infer from the failure of a decision maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision.

19    The approach was similar to a previous decision, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (WAEE), where the Full Court of the Federal Court found at [46]-[47]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’.  Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

20    The Federal Circuit Court found that the delegate discussed the country information at length, in great detail, and included references to material he relied on.

21    The appellant contended that upon review, the Tribunal only referred to the country information briefly and referred to material which was not referred to by the delegate. The appellant contended that the Tribunal did not actively engage in considering the information was before the delegate. The Federal Circuit Court found it was sufficient for the Tribunal to outline in its decision that it considered the department file, material used by the delegate and any additional material. It was unnecessary to go through the same information again in the decision. Moreover, the fact that the Tribunal considered additional material was indicative of them actively engaging in the issues they were required to determine in accordance with their statutory obligations.

The appeal

22    Grounds 1 and 3 were reargued on appeal, and in respect of each of them counsel for the appellant argued that the Federal Circuit Court had erred in its approach to those two matters. The Federal Circuit Court’s finding in respect of Ground 2 (that the Tribunal did not consider Parachinar as well as Peshawar), has not been appealed against.

23    The appellant argued for two grounds of error on the part of the Federal Circuit Court, although as is commonly the case the arguments really amounted to arguing that the Federal Circuit Court erred in not finding “jurisdictional error” on the part of Tribunal in relation to matters argued before the Federal Circuit Court.

24    The two contentions were that the Federal Circuit Court:

(1)    erred by not holding that the Tribunal committed jurisdictional error by failing to put the appellant on notice of certain issues which arose in relation to the decision under review which issues were other than those considered dispositive b the delegate; and

(2)    erred by not holding that the Tribunal had committed jurisdictional error by failing to have regard to matters to which it was required to have regard.

The First Ground: Consideration

25    Counsel for the appellant maintained the submission that, absent any specific notice by the Tribunal, the appellant was entitled to assume that the issues in the review was confined to the reasons why the delegate rejected the visa application.

26    The delegate accepted the appellant had a well-founded fear of being persecuted by reason of his Shia religion should he return to his home in Pakistan. In reaching that conclusion, the delegate accepted the appellant’s evidence regarding the two specific events outlined in Ground 1 before the Federal Circuit Court and set out in [8] above. The reason the visa application was rejected was because it was found that it was reasonable for the appellant to relocate to another area of Pakistan where he would not face that persecution. The appellant contends that on review by the Tribunal, unless told otherwise by the Tribunal, the relevant issue was regarding relocation only.

27    Having regard to the reasons of the Federal Circuit Court, it is first necessary to consider whether the delegate and the Tribunal treated the existence of those two events as determinative or dispositive issues. This is consistent with the procedural fairness principles flowing from s 425(1) of the Act: see SZBEL at [35]. The two events were claims made in support of the appellant’s contention that he had a well-founded fear of persecution.

28    The first event relates to the death of the appellant’s cousin due to stepping on a landmine planted by the extremists. Whilst the delegate accepted this as “plausible”, it was found that it was not significant to the appellant’s claim. It is the submission of the first respondent that the acceptance of that evidence by the delegate was incapable of supporting the appellant’s claims to have a well-founded fear of persecution. I accept that submission. The lack of significance with regard to that event was specifically noted by the delegate. The delegate was unwilling to make a further finding or reach a particular conclusion despite finding the event to be “plausible” because the delegate did not see it as indicative, in any event, of a family based focus or indeed of a Shia based focus. The delegate did not find that the appellant had a well-founded fear of persecution by reason of his own personal circumstances and affiliations.

29    Further, the delegate reached the conclusion that the appellant had a well-founded fear of persecution by reason of his religion. The appellant was a Shia Muslim. It is clear that the Taliban in Pakistan is fervently anti-Shia and have engaged in acts of brutality and violence against Shia Muslims. That conclusion was reached without the delegate treating that event regarding the death of the appellant’s cousin as determinative.

30     The consequence is that if the appellant wished to make something more of that event before the Tribunal, he was clearly on notice that it was for him to do so. He could not rest on the findings of the delegate with respect to it, and use those findings to support his claim.

31    The second event is more complicated. The appellant claimed to have witnessed the aftermath of a massacre of Shia Muslims in a neighbouring village. Again, the delegate accepted this as “plausible”, and may have instilled in the appellant a sense of fear for his safety as a Shia Muslim. The country information considered by the delegate supported the notion that there were many violent attacks against Shia Muslims in the Kurram Agency part of Pakistan. The issue then became whether being aware of the massacre and its aftermath did actually instil a sense of fear into the appellant because of his particular family or his proximity to its occurrence.

32    The delegate accepted that his awareness of the massacre may have instilled in the appellant a sense of fear for his safety, including plausibly because the Taliban at about that time blockaded the major road in Kurram. However, the delegate did not accept that that event was directed at the appellant or his family in particular, but that it and its aftermath reflected the Taliban’s fervently anti-Shia attitude, including in Kurram. The delegate did not accept the appellant was a specific target of the Taliban. The appellant claimed to have witnessed the aftermath of the massacre in November 2010. He applied for a passport three months later in February 2011. He ultimately left the country in October 2011, nearly a year after witnessing the massacre. He could have left eight months earlier as soon as he got his passport. This led the delegate to form a view that despite some concerns about the general circumstances in Pakistan, the appellant did not believe there was a real chance of being harmed prior to leaving Pakistan.

33    It is not easy to determine whether the delegate found this event to be determinative or dispositive, as the delegate considered that there was only a possibility that fear was instilled into the appellant by experiencing such events. The ultimate conclusion was that the appellant well-founded fear of persecution on the grounds of religion. In my view, the delegate regarded it as an event which contributed, in some way, to the appellant’s overall fear of persecution due to being a Shia Muslim, but I think it is plain that the delegate rejected that event as indicating a particular basis for vulnerability due to his family circumstances.

34    The second issue is whether the notice given by the Tribunal was sufficient to discharge its procedural fairness obligations: see SZBEL at [47]. Notice is especially important in this matter. Whilst the delegate accepted there was a well-founded fear of persecution, he decided that relocation to another area in Pakistan would neutralise that chance of harm. The Tribunal on the other hand took the view that there was no well-founded fear of persecution at all. The Tribunal identified a series of fundamental and serious inconsistencies in the appellant’s evidence and made him aware that his evidence was in doubt. The Tribunal also repeatedly warned him that there were serious doubts about his credibility in general and on specific issues. Particularly, the Tribunal said:

I have raised some concerns with your evidence, how you make significant claims to the department, and these inconsistencies and difficulties with your evidence may lead me to doubt that you have been truthful with your evidence and may lead me to doubt you and your family have been threatened as claimed.

…

As I have said I may not accept all that you have claimed.

…

With inconsistencies in your evidence I may not accept that either you or your family have been targeted in Pakistan either because of your religion or because your father is a high ranking official.

…

[m]y concerns with your evidence about whether you were being truthful, which may lead me to doubt that you or family are being targeted as claimed…

…

This information is relevant because it indicates that you have been inconsistent in your evidence which may lead the Tribunal to doubt that you are a witness of truth. It may lead the Tribunal to not accept that there was an attempted kidnap. It may lead the Tribunal to not accept that you have given truthful account of your circumstances in Pakistan, your reasons for leaving or your fear of harm if you were to return. If the Tribunal relies on this information it may find that you are not owed protection either under the Refugee Convention or Complementary Protection grounds. I am now inviting you to comment or respond to this information. You can comment or respond now or you can ask me for more time and I will consider that request.

…

The relevance of failing to mention such significant claims… may lead me to doubt you are a witness of truth, that you have been given a truthful account of your circumstances in Pakistan, your reasons for leaving and your fear of harm if you return.

35    It was clear the Tribunal gave the appellant several warnings that, in general, his whole account was in issue. The Tribunal gave him specific warning that there were serious concerns about his claims regarding his family being targeted due to his father’s political role or the attempted kidnapping. There was no specific warning and identification of the two events referred to. The issue is whether it was a breach of procedural fairness in the circumstances not specifically to identify that the occurrence of those two events was in issue.

36    In my view, because the appellant was seeking to support his claim by reason of his particular family circumstances, that is an imputed anti-Taliban political opinion, and because those two events were not accepted by the delegate as supporting that claim, the appellant was by his grounds for his review application on notice that he would have to address them before that Tribunal. Then, in the course of the hearing, the Tribunal made it clear to the appellant that, in respect of all the events which he claimed might support that aspect of his claim, his credibility was an issue. The two events were accepted by the delegate as having occurred, or at least plausibly as having occurred, but not as conveying to the appellant any basis for supporting this aspect of his claim. Without revisiting them in his evidence, he could not make more of them than the Tribunal had accepted.

37    Indeed, in respect of the first of those events, the death of his father’s cousin, the Tribunal appears to have adopted a view similar to that of the delegate. Its reasons are a little ambiguous, as it says:

… the Tribunal does not accept that his father’s cousin was targeted or killed in this way, that it has any connection to the applicant or his family …

That is not well expressed, given the elision of the terms “targeted” or “killed”. It is unclear whether the Tribunal accepted (as the delegate did) that it is plausible the cousin was killed by a landmine explosion. But the critical issue for this aspect of the claims was the targeting of the cousin. That was rejected by the delegate and by the Tribunal. The appellant was on notice that that was in issue. In the circumstances, given the Tribunal’s clear notice about the possible rejection of the entirety of the appellant’s account of events, there was no procedural unfairness by the Tribunal’s approach even if the death of the cousin (without context) was in issue satisfies the procedural fairness obligations in any event.

38     In relation to the second event regarding the witnessing of the aftermath of the massacre, the Tribunal did not specifically identify that this was in issue. In this instance, it made a finding adverse to the appellant and different from the conclusion reached by the delegate. It is necessary to consider the context of the appellant’s entire account to determine whether, in the circumstances, that amounted to procedural unfairness. The appellant made claims that he went into hiding in Shalozan between May and November 2010 after an attempted kidnap by the Taliban. He also made claims that, during that period, he sat a pre-engineering exam in Peshawar, located several hundreds of kilometres from Shalozan. It was in November 2010, when the appellant claimed to be hiding in Shalozan, that he witnessed the massacre of Shia Muslims at a neighbouring village.

39    The Tribunal had serious concerns about the attempted kidnapping and the subsequent hiding in Shalozan. Those concerns were made clear to the appellant. The witnessing of the aftermath of the massacre was an event that occurred at the end of the period where the appellant said he was hiding at Shalozan. In my view, the appellant was on notice concerning his claim that, by reason of perceived political opinion, he was vulnerable to persecution. That claim, including its attachment to the massacre, had been rejected by the delegate. The Tribunal clearly showed it doubted his veracity. He had the opportunity to address that broader claim, and its details, in that context. In the context of the claim to fear persecution by reason of his religion, that particular factual matter was of no real significance to the Tribunal. In my view, each of those particular matters was not significant or material to the Tribunal’s conclusion: see SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [115]. It is clear the appellant’s account was rejected due to the inconsistencies in the evidence which led to the Tribunal concluding the appellant was not a witness of truth. The crucial aspects of his evidence related to how he was specifically targeted by way of his personal circumstance and his religion. The Tribunal gave specific notice on those issues and a general notice as to his whole evidence. The appellant was afforded a proper opportunity to respond to those concerns. I do not consider it to be procedurally unfair that the appellant was not specifically alerted that there were concerns about him witnessing the massacre. Taken at its highest, the witnessing of the massacre was merely an example of the sectarian violence currently occurring in Pakistan. Whether that contention was accepted or not did not affect the outcome reached by the Tribunal that there was no well-founded fear of persecution: see WAEE at [46]. That assessment is made in accordance with the approach in SZBEL; see also Minister for Immigration and Citizenship v SZIAI (2009) 258 ALR 429.

40    Finally, on this aspect, I note that counsel for the appellant submitted that the Tribunal ought to have taken additional steps to put the appellant on notice because he did not speak English, he was stressed, and that it was not clear to him that his whole evidence was in issue. I reject that submission. The appellant was assisted by a migration agent throughout the whole process. There was a professional interpreter at the hearings. There does not appear to be any misunderstanding as to the Tribunal’s concerns, especially when they were relayed to the appellant on numerous occasions and in no uncertain terms.

41    In my view, the Tribunal is not shown to have departed from its procedural fairness obligations. I affirm the finding of the Federal Circuit Court on this aspect.

The Second Ground: Consideration

42    Section 424(1) of the Act provides that:

In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in the decision on the review.

43    For the Tribunal to “have regard to” relevant information in the decision on review was explained by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 218 at [57] (Khadgi), as engaging:

… in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration.

44    This statement of principle was considered by Barker J in SZRLO v Minister for Immigration and Border Protection [2013] FCA 825 at [49]-[52] (SZRLO) as being equally applicable to s 424(1) of the Act. I respectfully agree.

45    The delegate extensively considered various pieces of country information in order to assess the dangers to Shia Muslims in Pakistan.

46    Counsel for the appellant contended that the Tribunal, on the other hand, failed to engage in the “active intellectual process”.

47    The Tribunal stated at [137] of its reasons that it accepted that sectarian violence is a problem in Pakistan. That statement by the Tribunal was footnoted and referenced various sources of country information which were not before the delegate. The sources used by the delegate were not referenced in the Tribunal’s reasons at all. However, the Tribunal said at [18] of its reasons:

The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

48    Counsel for the appellant maintained the submission that, because the Tribunal did not expressly refer to the information that was before the delegate, the requirement prescribed in s 424(1) of the Act was not satisfied because the Tribunal did not engage in an active intellectual process with that information. Counsel for the appellant submitted that the Tribunal did not give such information “genuine” consideration.

49    The Federal Circuit Court observed at [57]:

It was not necessary for her to go through the information again in her decision. the fact that she referred additional [sic] country information in her footnote is indicative of her actively engaging in issue had [sic] to determine as required by the authorities.

50    Counsel for the appellant says the Federal Circuit Court itself erred because the Tribunal, just by saying it considered the information used by the delegate, did not demonstrate that it genuinely considered it.

51    In my view, at least as a starting point, the submission would be more potent if the Tribunal reached a different conclusion to the delegate. That is not the case here. Both the delegate and Tribunal reached the same conclusion that there was violence against Shia Muslims in Pakistan based on religious reasons.

52    The crucial issue in this case is whether the appellant had a well-founded fear of persecution. An essential link to that is to consider the country information to assess the political climate in that country. In my view, the Tribunal has erred, either in not engaging in an “active intellectual process” with the country information as a whole or alternatively by failing to address the appellant’s position in accordance with law in relation to its findings based on the country information.

53    In my view, the Tribunal committed jurisdictional error when reaching the conclusion that the appellant did not have a well-founded fear of persecution on religious grounds. Whether the Tribunal committed jurisdictional error by not “having regard to” the overall body of country information that indicates that Shia Muslims were being persecuted in Pakistan, as all materials considered by the delegate and the Tribunal pointed to the same conclusion, that is by not engaging in an “active intellectual process” with regard to considering that country information, or by misapplying the “real chance” test to that information is unclear. But, in my view, jurisdictional error is established.

54    Although the Tribunal made several findings on the appellant’s credibility and expressed serious doubts on the reliability of his evidence, it made several positive findings in his favour. The Tribunal was satisfied that he was a Pakistani national. That means Pakistan would be the country he would be returned to if his visa application was denied. The Tribunal accepted that he is a Shia Muslim. The Tribunal also formed several conclusions after considering numerous materials in relation to country information. The Tribunal stated in its reasons at [137]:

The Tribunal accepts that sectarian violence is a problem in Pakistan. However, as put to the applicant at hearing, when the Tribunal considers that there are estimated to be over 40 million Shia Muslims in Pakistan, it is of the view that there is only a very remote chance that the applicant will be the victim of an incident of sectarian violence if he returns to live with his family in their home in Peshawar, Pakistan. The Tribunal does not accept that there is a real chance that the applicant that the applicant will be persecuted in the context of the sectarian violence in Pakistan if he returns to that country now or in the reasonably foreseeable future. The Tribunal does not accept that there is a real chance that the applicant will be persecuted in the context of the sectarian violence in Pakistan if he returns to that country now or in the reasonably foreseeable future. The Tribunal does not accept that there is a real chance the applicant will be unable to worship freely without being targeted by the Taliban and/or their affiliated insurgency groups or the Sunni Muslim population. The Tribunal does not accept that there is a real chance that the applicant will be targeted or harmed for reason of his religion or that he will be discriminated against for reasons of his religion in such a way or to such an extent as to amount to persecution by the Taliban and/or their affiliated insurgency groups or the Sunni Muslim population if he returns to Pakistan now or in the reasonably foreseeable future.

55    Later in its reasons, at [141] the Tribunal said:

Although, as stated above, the Tribunal accepts that sectarian violence is a problem in Pakistan, it does not accept on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.

56    The latter passage must refer back to [137] of its reasons, as the interim passages also reflect summary conclusions based on the same material and the rejection of the appellant’s other claims.

57    The first point to note about [141] of the reasons is that it is a rejection of the fact of there being any relevant risk to the appellant by reason of his Shia religion if he returns to Pakistan. What evidence there is to support that is not identified, except perhaps in the statistical approach in [137]. No other country information identified by the Tribunal supports the view that Shia Muslims in Pakistan are not the subject of sectarian violence or violence by the Taliban.

58    The second point to note is that the Tribunal does not conclude there that, despite the “sectarian violence”, the appellant has no genuine fear of persecution.

59    The third point concerns the expression “as a necessary and foreseeable consequence”. Obviously, those terms are not co-terminous in relation to the real risks. The element of necessity is not one found in the Refugees Convention, as amended by the Refugees Protocol, or in the Act. The High Court in the seminal decision on the nature of a persecution in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 observed that the objective element of the fear which must subjectively exist is that it must be well-founded and not fanciful or far-fetched: at 396 per Dawson J; at 406 per Toohey J; at 413-414 per Gaudron J and at 429 per McHugh J. It is sometimes called the “real chance” test: per Mason CJ at 398. That expression has been used in subsequent High Court decisions: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 599.

60    It may well be that the Tribunal, by the use of that word, misdirected its attention from the test to be applied or, more probably having regard to the “template” part of its reasons at [13], simply failed to address the country information properly and with genuine consideration to that test. Counsel for the appellant did not argue that there had been a misdirection as to the applicable law by the use of that word, so the second of those alternatives is the more probable. (I do not use the expression “template” in any pejorative sense; it is simply to recognise that the early part of most Tribunal decisions contain the same, or almost the same, summary of the relevant principles under the heading “Relevant Law” – there is no need to re-invent the wheel).

61    In my view, the reasons of the Tribunal, particularly at [137] show that it did not have regard to the country information in the light of its findings. That paragraph, apart from a statistical analysis, does not disclose any reason for the general conclusion which it contains. The Tribunal identified and recognised the general risks facing the appellant as a Shia Muslim in Pakistan. However, it proceeded to find that the risk is “remote” because there were over 40 million other Shias in Pakistan. There was nothing else in the Tribunal’s reasons that would explain how it considered the risk to be remote besides referencing that number. This differed from the delegate’s approach, which identified those general risks against Shia Muslims, but concluded that relocation to another part of Pakistan would be a reasonable course of action to not be exposed to that risk.

62    In WAEE, the Full Court considered it to be vitally important that the Tribunal deal with dispositive issues in the review in its published reasons and that failure to do could be inferred that it was overlooked: see [47] of that decision. WAEE involved an application for a protection visa on religious grounds. All relevant material was put before the Tribunal. The Full Court found at [49]-[50]:

The material put before the Tribunal on the son’s intermarriage issue and the contentions advanced in respect of it went directly to the criterion for the grant of a protection visa set out in s 36. While the Tribunal recounted the appellant’s claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue.

It was submitted for the respondent that the intermarriage issue was somehow subsumed in the generality of the Tribunal’s finding that, although the applicant would be subject to some discrimination if he returned to Iran, the discrimination would not amount to persecution and that proper protection would be forthcoming from the authorities in Iran.

63    The Full Court went on at [52]:

As appears from the review of material put before the Tribunal, the failure by the Tribunal to consider the evidence about S’s marriage and the repercussions flowing from it and the contentions based on that evidence, amounted to a failure to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Tribunal therefore in our opinion, failed to discharge its duty of review and made a jurisdictional error.

64    Similarly, the Full Court in Khadgi observed at [60]:

In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338. As his Honour’s reasons in R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [57] (per Sackville J).

65    The Tribunal was satisfied that the appellant was as a Shia Muslim at risk of serious harm by reason of his religion. The Tribunal however classified that risk as being too remote. In my view, the essential link in the chain of reasoning connecting the two findings was missing. Besides quoting that there are over 40 million Shia Muslims in Pakistan, the Tribunal, in its published reasons, did not consider the evidence that underpinned its ultimate finding that the risk was remote. In my view, its task was not done by the numerical analysis. It should have considered the appellants’ particular circumstances. If it be the case that there is nothing to distinguish the appellant from other Shia Muslims in Pakistan, provided the country information (common to both the delegate and the Tribunal) stands, it is hard to see how the conclusion of the Tribunal is sustainable. If there were some small or local sectarian violence, the picture the country information indicated would not be so dramatic or compelling. To the contrary, the picture appears to be that it is coordinated, pervasive and effective, and the Taliban are presented as a cogent and broadly spread instrument of its application. It should not be adequate, in the face of such data, to say in effect that although a significant number of Shia Muslims will be severely harmed or killed by that pervasive targeted violence because you as a target group are numerous, the chances of any particular one of you being as harmed or killed is not a real one or is fanciful.

66    Accordingly, subject to one matter, I think the Tribunal did commit jurisdictional error.

67    Counsel for the first respondent submitted that [137] addressed the issue of relocation that was considered by the delegate. I do not accept that. The Tribunal found that there was sectarian violence against Shia Muslims in Pakistan, which number over 40 million people. However, the Tribunal proceeded to the conclusion that there was only a small chance that the appellant would be one of the Shia Muslims that would face serious harm if he returned to his Peshawar. The subsequent sentences were statements regarding the chances of facing serious harm based on religion in Pakistan in general and were not specific to any geographic area within the country. I do not consider the reference to Peshawar and to Pakistan in general, without further contextual reference to the country information, indicates that the Tribunal was addressing whether the appellant could relocate safely within Pakistan.

68    The delegate considered the option of relocation to avoid those risks as crucially dispositive and determinative. It was clearly a fundamental issue that the Tribunal may have considered. If it had addressed it, it would clearly have said so. It is trite law that a well-founded fear of persecution need not always extend to the whole country of nationality for a person to qualify as a refugee, but a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country: see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. The Tribunal did not say it was addressing that issue. Its reference to Peshawar in [137] is because it found that is where it found the appellant lives.

69    In my view, allowing for the need to be cautious about applying too keen an eye to the perception of error on the part of the Tribunal, I respectfully disagree with the Federal Circuit Court who, on balance, thought that [137] of the Tribunal’s reasons indicated that it genuinely considered the country information. I am persuaded that the Tribunal, while apparently understanding the terms of the law in s 424(1), had failed to properly address it and make the necessary findings of fact. Accordingly, I am not satisfied that it “had regard to” the information as required by s 424(1). In my view, the Tribunal’s conclusion was infected with jurisdictional error in the approach it took to conclude that the appellant did not face a real risk of persecution based on his religion if he returned to Pakistan.

Orders

70    I will therefore allow the appeal, and set aside the orders of the Federal Circuit Court, including as to costs. I will also order that the first respondent pay to the appellant his costs of the application to the Federal Circuit Court and of this appeal. I will also give leave to the appellant to seek such further orders as are necessary and appropriate in the light of my findings, such leave to be exercised within 21 days by a written submission and any proposed draft orders. The first respondent will then have 14 days to respond to that material. It may, however, be unnecessary to make any further orders, as the effect of my decision in practical terms is that the appellant should be entitled to a fresh review by the Tribunal of his claim and the first respondent may be prepared to facilitate that occurring. In that event, the Tribunal as then constituted may – depending on its findings – need to address the issue of relocation. It may also, depending on its findings, also need to address further consequential issues such as the existence of effective State protection within Afghanistan.

Associate:

Dated:    24 July 2014