FEDERAL COURT OF AUSTRALIA

SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely on the amended notice of appeal filed in Court on 2 October 2014.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court made on 17 April 2014 dismissing the second further amended application for judicial review and ordering that the applicant pay the first respondent’s costs fixed in the amount of $15,400 be set aside.

4.    In lieu thereof:

(1)    The decision of the Refugee Review Tribunal made on 8 March 2013 to affirm the decision not to grant the appellant a Protection (Class XA) visa be quashed.

(2)    The matter be remitted to the Refugee Review Tribunal for determination in accordance with law.

(3)    The first respondent pay the appellant’s costs of the hearing before the Federal Circuit Court of Australia, as agreed or taxed.

5.    The first respondent pay 80% of the appellant’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

The appeal

1    This appeal is from orders of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed the refusal of the appellant’s application for a protection visa.

2    The Tribunal was satisfied that there was a real chance that the appellant would suffer serious harm by reason of his religion (the appellant is a Shia Muslim) and opinions that would be imputed to him by others (Sunni Muslims, the Taliban, and Sunni extremist groups) if he were to return to the Kurram Agency in Pakistan, but found that it was reasonable for the appellant to relocate to Karachi in Pakistan; the consequence was that the appellant was not a person in respect of whom Australia has protection obligations as set out in s 36(2) of the Migration Act 1958 (Cth) (the Act).

3    The primary judge concluded that the appellant had not established any ground upon which the decision of the Tribunal was affected by jurisdictional error and, accordingly, dismissed the appellant’s application for judicial review (SZSSY v Minister for Immigration & Anor [2014] FCCA 748).

4    The appellant contends the primary judge erred by reason of various, overlapping grounds. Those grounds, and a summary of the appellant’s contentions in support, are as follows:

(1)    The Tribunal wrongly treated persecution as the the only level or kind of harm relevant to the reasonableness of relocation and failed to consider the risk of harm less than persecution which was relevant to the reasonableness of relocation. To do so was an error (MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191; [2012] FCA 1032 at [61]-[62] (MZYQU); SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [23]-[24] (SZATV)). The Court below, in concluding that the Tribunal “committed no error in considering whether the applicant would have a well-founded fear of Convention-related persecution in Karachi as a necessary part of its consideration of whether he could reasonably be expected to relocate there” (at [20]), misunderstood the appellant’s case in this regard. The appellant did not contend that the Tribunal erred in so doing. The appellant contended that the Tribunal erred in failing to do more than this by considering “harm below persecutory harm when dealing with the reasonableness of relocation” as it was required to do (ground 1).

(2)    In dealing with the risk of the appellant being persecuted in Karachi, the Tribunal made findings that were relevant to the reasonableness of the appellant relocating to Karachi. The Tribunal, however, failed to consider those findings when dealing with the relocation issue. According to the appellant this involved error, because the “range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality” (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 535; (1994) 52 FCR 437 at 442 (Randhawa); see also the summary in MZYQU). The findings in question, relevant to the appellant relocating to Karachi (referred to by the parties as the Karachi findings), but said not to have been considered in that context are as follows:

(a)    Sunni extremist groups had a presence in the city and that Shia neighbourhoods were barricaded and fortified;

(b)    Karachi had witnessed a number of ‘large scale attacks’ on Shia targets since late 2009, including their religious processions;

(c)    The Pakistan government had been unable to stop attacks on Shi’as in Karachi and elsewhere;

(d)    The [appellant] was identifiable as a Pashtun Shi’a from Parachinar and that he would be perceived as an opponent of the Taliban by that group and other Sunnis and that the Taliban and other like groups had a presence in Karachi;

(e)    The [appellant’s] uncle was a journalist who had reported on Taliban atrocities and had, as a consequence, received threats from the Taliban including to the effect that members of his family would be killed. After the interview, the [appellant] had been followed around in Peshawar.

The Court below, said the appellant, erred in rejecting this ground. The Court considered that “the scope of any inquiry into the practicability of relocation will be determined by the objections to relocation which a particular applicant may make” (at [24]) and concluded, in consequence, that because the appellant did not specifically raise these matters with the Tribunal in the context of relocation, the Tribunal “did not need to consider such matters” (at [25]). This is an error of principle. It is well established that the Tribunal’s obligation is to consider matters raised by the applicant or squarely raised on the material before the Tribunal (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [7], [13] and [42], NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61], and MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 (MZWDG)). In MZWDG at [39], in particular, Young J said:

On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal’s findings or conclusions.

The Court below thus erred by not dealing with the issues that emerged from the Tribunal’s own findings (ground 2).

(3)    The appellant contended before the Court below that, amongst other things, he had raised five matters relevant to the reasonableness of relocation to Karachi, being:

(a)    discrimination against him as a Shia;

(b)    the lack of social and other forms of support outside the Kurram Agency;

(c)    the limitations as to his access to basic services in Karachi;

(d)    the lack of friends and family outside the Kurram Agency; and

(e)    the increasing crime rates in Karachi.

The Tribunal was thus bound to consider each of these matters when dealing with the reasonableness of relocation, but failed to consider (a), (b) and (e) at all, and in relation to (c) and (d), considered the matters with reference only to the question whether the appellant could obtain employment, when the appellant’s claims had not been limited in this way.

The reasons of the Court below for rejecting this contention were misconceived. The Court below, submitted the appellant, identified other factors the appellant had raised relevant to relocation and then stated that the Tribunal “dealt at considerable length with the applicant’s objections to living [in Karachi]...” (at [27]). This, the appellant said, was insufficient; it was “still incumbent on the court below to consider whether the matters set out above were considered, which it erroneously failed to do” (ground 3).

(4)    The Tribunal erred in requiring a greater degree of satisfaction as to the likelihood of the occurrence of the claimed persecution in Karachi than that required by law. A well-founded fear of persecution will exist where there is a real chance of the feared persecution occurring, even if the probability of it occurring is low (Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389, 407 and 429, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572, Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28). Having made the Karachi findings, the Tribunal’s conclusion that the appellant’s fear was remote discloses that it “approached the question by requiring a greater degree of satisfaction as to the likelihood of the claimed persecution occurring than that required by law”.

The Court below did not deal with this argument or, to the extent it considered it, treated the argument as a complaint about fact finding. The appellant submitted that this misconceived the argument and resulted in the Court below erroneously rejecting this ground of review (ground 4).

(5)    Having made the Karachi findings, the Tribunal’s conclusion that the appellant’s fear was remote was “one at which no rational or logical decision maker could arrive on the same evidence” in the sense referred to in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16; at [130]).

The Court below, said the appellant, erred in rejecting this ground of review. The Court concluded that although the Tribunal made the Karachi findings, the Tribunal “also relied on other evidence to conclude that such matters did not lead to a finding that the applicant had a well-founded fear of Convention-related persecution in Karachi or that it was not practicable for him to relocate there” (at [32]). However, the Court did not identify the other evidence upon which the finding was based, and there is no such other evidence (ground 5).

(6)    The appellant contended before the Court below that the Tribunal had failed to take into account a relevant consideration, being the UNHCR guidelines quoted by the appellant’s advisor to the Tribunal which provided that “[g]iven the wide geographic reach of some armed militant groups, a viable IFA/IRA [internal flight or relocation alternative] will generally not be available to individuals at risk of being targeted by such groups”.

The UNHCR guidelines are the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14 May 2012.

The Court below rejected this ground of review on the basis that the UNHCR guidelines were no more than evidence and the Tribunal’s reasons disclose that it “considered the applicant’s particular circumstances in the context of his postulated relocation to Karachi” (at [35]).

The Court below, submitted the appellant, was in error in so doing.

First, characterising the material as evidence does not answer the ground of review. There is no bright line between evidence and claims. A failure to consider evidence can constitute a failure to consider a relevant matter (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111] (SZRKT), Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114 at [28] (MZYTS), WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47] (WAEE), Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [35] (Yusuf), and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 (SZSRS)). The “critical question is what the importance of the material to the decision was and whether, in view of that importance, the court should infer from the absence of reference that it had not been considered. These were not questions the court below asked itself”.

Second, the reference to the Tribunal having considered the appellant’s particular circumstances is obscure and no answer to the claim; whether the Tribunal considered other matters does not address whether this particular piece of important country information was considered (ground 6).

(7)    The Tribunal, having accepted the appellant’s narrative concerning his uncle (who gave a television interview against the Taliban), resulting threats to his uncle and his uncle’s family, and the appellant being followed in Peshawar, reasoned that because the appellant was not politically active and would not have had the profile of his uncle, the appellant would not be pursued by the Taliban in Karachi. This reasoning involved an unstated finding for which there was no evidence, namely, that for the appellant to attract persecution at the hands of the Taliban, he had to personally hold a sufficiently high political profile to warrant their interest and the Taliban would not pursue him merely because of his association with his uncle. Further, there was contrary evidence, being (i) the letter which the Tribunal accepted threatened the uncle and the uncle’s family members, (ii) the following of the appellant after his uncle’s interview, which the Tribunal accepted could be related, (iii) the UNHCR guidelines which indicated that relocation was not generally viable because of the reach of militants, and (iv) the accepted facts that the interview of the appellant’s uncle was conducted in the capital of Pakistan (Islamabad), on a national television station (AVT Khyber TV), which immediately resulted in the appellant being followed around in Peshawar. Alternatively, the Tribunal’s finding involved a failure to consider the matters set out in (i) to (iv) which were relevant considerations (a claim the Minister contended had not been put below, was not in the notice of appeal, and required leave to now be raised), or a misconstruction of the appellant’s claim.

The Court below rejected this ground of review on the basis that the Tribunal “should be understood to be saying that before being targeted by the Taliban a person would have to have a “profile” or some characteristic which would cause that targeting” and was simply unpersuaded by the appellant’s argument that his familial relationship to his uncle was such a profile (at [38]). This, said the appellant, was in error because theTribunal, from its reasons at [89]-[90], proceeded “on the basis, in the absence of evidence and without having regard to the relevant considerations set out above, that the Taliban would only pursue the [appellant] if he had his own independent profile”. The Court below also failed to address the relevant considerations ground; to say the Tribunal “was unpersuaded says nothing about whether, in the process of being unpersuaded, it had regard to the considerations before it that were relevant to its findings in this regard” (ground 7).

(8)    The appellant did not press ground 8.

(9)    The Court below rejected the appellant’s contention that the Tribunal should have, but failed, to consider whether a situation of generalised violence in Karachi engaged Australia’s complementary protection obligations. Generalised violence can engage protection obligations (MZYQU at [62]). According to the appellant, the Court below erred in failing to apply MZYQU (ground 9).

Ground 1

5    An applicant for a protection visa must satisfy at least one of the criteria in s 36(2) of the Act. By s 36(2)(a), one criterion is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (as defined in s 5(1), referred to in these reasons as the Convention). By Art 1A(2) of the Convention, such a person, relevantly, is one who has a well-founded fear of persecution in the country of his or her nationality for specified reasons. In particular, Art 1A(2) defines as a refugee a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

6    Section 91R(1) of the Act provides that Art 1A(2) does not apply in relation to persecution for one or more of the reasons mentioned in the Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

7    In other words, persecution necessarily involves a well-founded fear of a risk of serious harm for one or more of the specified reasons.

8    The Tribunal was satisfied that the appellant held a well-founded fear of persecution on the basis of his religion if he were to return to the Kurram Agency in Pakistan (at [79]). In so finding, the Tribunal expressly referred to the criterion of “serious harm” consistent with the terms of s 91R(1) of the Act. Having so found, the Tribunal said it must therefore “turn to the issue as to whether it may be reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution” (at [80]).

9    Consistent with the reasoning in Randhawa, the Tribunal was bound to consider the issue of relocation. At 440-441 Black CJ said:

Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their county of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.

10    In SZATV at [10] to [22] Gummow, Hayne and Crennan JJ confirmed this approach to the definition of refugee in Art 1A(2) and at [22] cited with approval the observation of Lord Bingham in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440 that:

a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.

11    In SZATV Gummow, Hayne and Crennan JJ also said:

[23] The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

[24] However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

12    In informing itself that it must therefore “turn to the issue as to whether it may be reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution” (at [80]), it will be apparent that the Tribunal was adopting the language used in SZATV at [23]. The appellant’s complaint, however, is that the Tribunal overlooked the further observations of the High Court in [24] that reasonableness depends on the particular circumstances of the appellant and the impact upon him of relocation of the place of residence within the country of nationality and confined its consideration to the risk of serious harm to the appellant.

13    I am not persuaded that the Tribunal fell into an error of this kind. The Tribunal’s reasons did not stop at [80]. Subsequent paragraphs disclose that the Tribunal did not ask itself only whether the appellant would have a well-founded fear of persecution (that is, serious harm) in Karachi. This is apparent from the the fact that, in the context of relocation, the Tribunal does not use the phrase “serious harm”. Instead, the Tribunal considered the risk of the appellant as a Shia in Karachi suffering harm per se, as well as the appellant’s education and qualifications, the languages he speaks, the lack of evidence of any harm to Pashtuns in Karachi, the position of the appellant given the activities of his uncle against the Taliban, and country information.

14    It is true that the Tribunal used the word “persecution” at [80], [84] and [104] of its reasons, but the Tribunal did not confine its consideration of the reasonableness of relocation to that issue. This is not a case like MZYQU in which the independent merits reviewer (IMR) wrongly assumed that only harm satisfying the requirements of “persecution” as set out in s 91R(1) of the Act could be relevant to the reasonableness of relocation. The nature of this error is apparent from the conclusions of Dodds-Streeton J in MZYQU as follows:

[61] In my opinion, therefore, the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.

[62] While the IMR’s reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation… indicates that any harm that was not “serious harm as required by s 91R(1)(b)” was excluded from consideration in that context.

15    The same error cannot be attributed to the Tribunal in the present case.

16    Ground 1, accordingly, cannot be accepted.

Ground 2

17    Insofar as ground 2 overlapped with ground 1, in respect of the question whether the Tribunal failed to consider any risk of harm less than persecution, the ground must be rejected for the reasons given about ground 1 above. Accordingly, properly analysed, ground 2 concerns the questions, first, of the making of the so-called Karachi findings and, second, whether the Tribunal was bound but failed to consider those findings when assessing the reasonableness of relocation.

18    As to the first question, it is one thing to accept that there is no necessary bright dividing line between findings and evidence. It is another to recast evidence as findings as the first step in a claim of failure to consider a relevant matter. As was said in WAEE at [47]:

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.

19    In SZRKT, in dismissing the existence of any “clear distinction between claims and evidence”, Robertson J also said:

[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

[112] As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.

20    The Tribunal made findings in [77] to [112] of its reasons. Apart from the first three paragraphs which confirm the Tribunal’s acceptance of the appellant’s well-founded fear of persecution if he were to return to the Kurram Agency (at [77] to [79]), the balance of the Tribunal’s findings is concerned with the issues of relocation and complementary protection. For example, as to (a) of the Karachi findings, the Tribunal did not find that the Shia neighbourhoods in Karachi were barricaded and fortified. It referred to evidence of this fact at [59] but made no specific finding to that effect, no doubt, because this fact was subsumed into the more general finding it did make – namely, that Shia have been victims of attack by the Taliban and Sunnis in Karachi (at [82] and [87]). In these circumstances, it cannot be said that the Tribunal was bound to consider the specific fact that Shia neighbourhoods in Karachi were barricaded and fortified when dealing with the question of relocation. This, however, is not fatal to the appellant’s case for at least two reasons.

21    First, there is no doubt that the Tribunal did have to consider “the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality” (SZATV at [24]).

22    Second, even if some of the Karachi findings are expressed at too great a level of specificity, the particular circumstances of the appellant, accepted by the Tribunal to be such, included that the appellant was identifiable as a Shia, wished to continue to practise the rituals and requirements of his religion, and would be perceived as an opponent of the Taliban and other Sunni extremist groups, as well as that there had been large scale attacks on Shia Muslims in Karachi, and country information indicated that authorities were unable or unwilling to stop these attacks. If the Karachi findings are understood in this way (and this is the substance, if not the precise form, of paragraphs (a) to (d) of the Karachi findings), then the appellant’s claims do not suffer from the problem of excessive specificity. These matters constituted the “practical realities” (Randhawa at 442) of life in Karachi if the appellant were to relocate there and thus, these matters had to be considered in answering the question whether the appellant could be reasonably expected to relocate to Karachi.

23    It is appropriate to note here that the appellant’s relevant circumstances included also those relating to his uncle (paragraph (e) of the Karachi findings) but, for reasons which will become apparent, I prefer to deal with that issue in the context of grounds 6 and 7 below.

24    I accept the appellant’s submission that the Tribunal was bound to consider these matters in answering the question whether the appellant could reasonably relocate to Karachi. The matters were put by the appellant and emerge from the Tribunal’s findings or conclusions as relevant to the question of relocation. Consistent with the reasoning in MZWDG at [39], the Tribunal was thus bound to consider these matters but, for the reasons given below, its purported consideration miscarried.

25    In its findings and reasons, the Tribunal accepted that the appellant was identifiable as a Shia, would be perceived as an opponent of the Taliban, and may well wish to engage in the practices of his religion in Karachi, and that Shia Muslims engaged in the practice of their religion and otherwise had been the subject of attacks in Karachi which the relevant authorities had not been able to prevent (at [81] – [104]). The Tribunal thus undoubtedly referred to the matters in paragraphs (a) to (d) of the Karachi findings (as I have said they should be understood) in the context of its consideration of the question whether it was reasonable for the applicant to relocate to Karachi.

26    The problem is this. It must be inferred from its reasons that the Tribunal confined its consideration of those matters to the question whether the appellant was at risk of harm in Karachi. The Tribunal must be inferred not to have considered those matters as relevant to the practical realities with which the appellant would be confronted in Karachi. The practical realities of life in Karachi for the appellant were not confined to the suffering of harm (by which, it is apparent from the Tribunal’s reasons, meant physical harm). Given the Karachi findings (as explained above), the potential impacts upon the appellant by relocating to Karachi extended beyond the suffering of physical harm. Yet none of the other potential impacts, relating to the day-to-day life of the appellant in Karachi, were considered.

27    This is apparent from the Tribunal’s repeated references to the relevant matters only in the context of the appellant suffering harm and the corresponding lack of any references to the relevant matters in the context of the “practical realities” or potential impacts on the appellant of relocation. Accordingly, at [82], the relevance of attacks on Shia Muslims involved in religious processions is confined in the Tribunal’s consideration to the risk of the appellant suffering harm. The same limitation is apparent in [84] (although the reference is the feared persecution, or serious harm), as well as in [87] (in the context of the appellant being identifiable as a Shia from the Turi tribe), [88] (in the context of the appellant wishing to practise his religion), [97] and [98] (in the context of the authorities not having been able to prevent attacks on Shia Muslims) and [104] (which repeats the conclusion at [84] and extends the conclusion to harm).

28    On each occasion the Tribunal is focused either on persecution which requires a risk of serious harm (at [84] and [104]) or harm (at [82], [87], [88] and [98]).

29    For these reasons, I do not accept the Minister’s submission that the Tribunal considered the Karachi findings as required. The Tribunal considered those findings limited to the question whether the appellant would suffer harm if he relocated to Karachi. However, the question which the Tribunal was required to answer was not so confined. The Tribunal’s consideration thus miscarried.

30    To the extent that the Minister sought to support the primary judge’s conclusions as an answer to ground 2, I am unable to agree. The reasoning of the primary judge at [24] to [28] is not entirely clear, in that it is not possible to identify from the face of the reasons the “matters” which might have been relevant to the reasonableness of the appellant relocating to Karachi but which the primary judge said the appellant did not raise in that context, with the result that the Tribunal did not need to consider those matters. If [25] was intended by the primary judge to cover the matters in the Karachi findings, which I doubt given the substance of the reasons in [26] which deal with some of those findings, then I do not accept that the appellant did not raise these matters in the context of relocation. The Tribunal understood the appellant to have done so and purported to consider the matters in the context of relocation.

31    Otherwise, the primary judge concluded at [27] that the Tribunal “dealt at considerable length” with the appellant’s objections to relocation and did not test his claims against s 91R of the Act or the requirement of serious harm. So much may be accepted. The Tribunal did deal with the relevant matters at considerable length and did not confine its consideration to serious harm. But these conclusions do not answer the appellant’s case that the Tribunal failed to consider the Karachi findings (as I have said they must be understood) in answering the question whether it was reasonable for the appellant to relocate to Karachi because it wrongly confined the potential relevance of those matters to the risk of the appellant suffering harm.

32    Ground 2 (excluding (e)), accordingly, is made out. The appeal must be allowed in consequence.

33    It is convenient now to deal with grounds 6 and 7.

Grounds 6 and 7

The leave issue

34    As noted, the Minister objected to the appellant raising ground 7 insofar as it relates to the claim of a failure to consider matters relevant to the question whether the Taliban would pursue the appellant in Karachi. The Minister submitted that the appellant had not made this point below and should not be permitted to make it on appeal. As the material relevant to this question (that is, whether the point had or had not been raised below) was not available during the hearing, I indicated to the parties that, if potentially material to the outcome, I would hear the parties further on the issue of the need for leave, if any, and the related substantive contentions. Having reserved the decision and considered the matter further, I concluded that the the issue was potentially material to the outcome and notified the parties to that effect. As a result, the appellant filed an application for leave to amend the notice of appeal, both parties were given an opportunity to make further written submissions, and a further oral hearing was convened to enable the parties to address the question of the need for leave, whether leave should be granted or not, and the substantive issues, orally.

35    The amendment to the notice of appeal reflects the case as put for the appellant in written and oral submissions (summarised above), namely, that the Tribunal erred in one of three ways, either by (i) acting on an unstated assumption or finding that the appellant had to have his own political profile in order to be at risk of harm from the Taliban for which there was no evidence and there was contrary material (the four matters identified at [4(7)] above), or (ii) failing to consider relevant matters (the same four matters), or (iii) misconstruing the appellant’s claim. The amendment inserts into the notice of appeal the second ground, that of failure to consider relevant matters.

36    During the further hearing, the appellant accepted, albeit not without some qualification, that leave was required to raise as part of ground 7 the alleged failure to consider relevant matters. I am satisfied that leave is required, and should be granted, despite the Minister’s objection. My reasons follow.

37    Insofar as the Minister contended that there was no explanation of the failure to raise the points below, three points should be made.

38    First, there is substantial overlap between grounds 2, 6 and 7 of the appeal. On one view, grounds 2 (paragraph (e)) and 6 raise the same matters in substance as the proposed amendments to ground 7.

39    Second, ground 7 in the appeal equates to ground 5 of the second further amended application in the Court below. It may be accepted that in dealing with ground 5 in the written submissions before the Court below the appellant identified a single failure to take into account a relevant consideration, being the UNHCR guidelines. This is now raised as ground 6 in the appeal. It may also be accepted that the particulars to ground 5 did not disclose the considerations said to be relevant and not taken into account. However, it is clear that the appellant also submitted to the Court below that there was other material which should have caused the Tribunal to conclude that there was a real risk the Taliban would pursue the appellant in Karachi, not because of his profile, but because of his relationship with his uncle. This material is the same material the appellant now contends in the appeal the Tribunal was bound to consider – being (i) the letter which the Tribunal accepted threatened the uncle and the uncle’s family members, (ii) the following of the appellant after his uncle’s interview, which the Tribunal accepted could be related, (iii) the UNHCR guidelines which indicated that relocation was not generally viable because of the wide geographic reach of militants, and (iv) the accepted facts that the interview by the appellant’s uncle was conducted in the capital of Pakistan (Islamabad), on a national television station (AVT Khyber TV), that immediately resulted in the appellant being followed around in Peshawar.

40    As Robertson J said in SZRKT at [77], because the grounds of judicial review overlap, analysis in terms of “fixed categories or formulas” requires caution. The ultimate question is always whether the Tribunal discharged its function in accordance with law. The appellant, at all times, has contended that the Tribunal failed to do so in a variety of ways, albeit with different emphasis before the Court below and this Court. The differences between the way in which the appellant put his case below and on appeal seem to be more a result of an effort to pin a label on each review ground rather than a deliberate forensic decision to change tack on appeal.

41    Third, the appellant and the Minister have had a full opportunity to address all of the grounds as the appellant now wishes to put them.

42    Insofar as the Minister contended that the appellant, being legally represented at all times, must be inferred to have made an informed decision about how to put the case below, the same three points can be made in answer, as can the point that there is no suggestion on the material that the appellant deliberately refrained from raising the relevant considerations ground below as now raised in order to obtain some forensic advantage. No such advantage is apparent.

43    Insofar as the Minister submitted that, had the point been raised below, the appeal would have been conducted more efficiently, I agree. To this extent, there is prejudice to the Minister, but it is a prejudice curable by an appropriate costs order. It cannot be suggested that the hearing below would have been run differently by the Minister had the point been raised. The point is one that is equally capable of being resolved on the basis of the documentary material which is the same material that was before the primary judge.

44    Insofar as the Minister relied on lack of merit of the additional ground, the ground is not obviously bad. More to the point, in order to assess the merits or otherwise of the ground, the same analysis is required as would be necessary to determine the substance of the ground.

45    For these reasons I am satisfied that it is in the interests of justice for the appellant to be granted leave to amend the notice of appeal, ground 7, as proposed.

Discussion

46    I deal now with the substance of grounds 6 and 7. To do so it is necessary to understand the appellant’s claims, the material that was put in support of those claims, and the Tribunal’s reasoning process, as well as the manner in which the primary judge resolved the grounds, at least insofar as they were put to the primary judge.

47    There is no dispute between the parties that the appellant claimed that he was at risk of harm by reason of his membership of a particular social group, being the family of his uncle in circumstances where his uncle had become a target of the Taliban as a result of political activity (primarily, the making of documentaries and the giving of an interview on television in Islamabad concerning atrocities committed by the Taliban including on members of the Turi tribe). The appellant claimed that his uncle received letters and telephone calls after the television interview warning him that he and his family would be killed. Further, after the interview the appellant was followed by three men when he left the university campus in Peshawar. He believed the men to be members of the Taliban and returned to the university campus because he was afraid of them.

48    In a written submission to the Tribunal the appellant’s representative dealt with the issue of relocation. The submission set out the appellant’s claims including the circumstances relating to his uncle and continued:

In consideration of the above risk factors it should also be acknowledged that the [appellant] has a particular identity to the Taliban and or other religious extremists due to his relationship with [his cousin and uncle]. The UNHCR Guidelines notes:

Given the wide geographic reach of some armed militant groups, a viable IFA/IRA will generally not be available to individuals at risk of being targeted by such groups. The operational capacity of certain militant groups …extends far beyond FATA [Federally Administered Tribal Areas] or the Khyber Pakhtunkhwa province as evidenced by high profile attacks, such as suicide bombings, countrywide, particularly in urban centres. Furthermore, some non-State agents of persecution…reportedly have links to or are closely associated with influential actors in the local and central administration, law enforcement and/or judiciary. As a result, they often operate with impunity and their reach may extend beyond the areas under their immediate control.

Therefore in all the circumstances, the Tribunal should find that it is unreasonable for the [appellant] to relocate within Pakistan.

49    The Tribunal accurately identified the claims of the appellant about his uncle, the threats his uncle had received involving him and his family, and the appellant being followed (at [37]-[42] and [86]). The Tribunal accepted that the appellant was a credible witness (at [78]). The Tribunal found and concluded as follows in respect of these claims:

84. In all of the circumstances, the Tribunal finds that the [appellant] can reasonably be expected to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution. In reaching that finding, the Tribunal considered the written submissions of the representative along with comments made by the [appellant] at the hearing when the issue of relocation was discussed with him.

…

89. The Tribunal accepts that the [appellant’s] uncle received threats from the Taliban because of the interview he gave in Islamabad and that the [appellant] was followed by some men on one occasion in Peshawar after his uncle gave an interview and therefore, possibly, because of that. However, even accepting the [appellant] belongs to the claimed particular social group, he himself was not politically active in Pakistan and would not have had the political profile of his uncle.

90. While the Taliban may have made a threat to the uncle to harm him and his family, the Tribunal does not accept that this would give the [appellant] a profile such that he would be pursued by the Taliban in Karachi because of his association with his uncle.

50    The “written submissions of the representative”, referred to by the Tribunal at [84], are the written submissions containing the reference to the UNHCR guidelines as set out above.

51    The Tribunal referred to different parts of the UNHCR guidelines at [47] and [48] of its reasons under the headings “Independent country information” and “The position of Shi’as generally”. The parts of the UNHCR guidelines to which the Tribunal referred in [47] and [48] considered sectarian violence targeting the Shia minority and the reported inability or unwillingness of law enforcement authorities to protect members of religious minorities including Shias.

52    Otherwise, throughout its reasons, the Tribunal makes no reference to that part of the UNHCR guidelines set out in the written submissions to the Tribunal for the appellant. In particular, there is no reference in that part of the Tribunal’s reasons dealing with relocation to what the UNHCR guidelines say about the lack of viability of internal relocation of a person at risk given “the wide geographic reach of some armed militant groups”.

53    The primary judge considered that the appellant’s argument of an unstated finding or assumption that the appellant needed to have his own political profile should not be accepted because (at [38]):

The Tribunal should be understood to be saying that before being targeted by the Taliban a person would have to have a “profile” or some characteristic which would cause that targeting and that although the [appellant] had no independent political profile of his own, he alleged that being his uncle’s nephew meant that he was part of the particular social group of his uncle’s family and that that gave him such a profile. The Tribunal was simply not persuaded that that was so.

54    I agree with this analysis.

55    I do not accept that in using the word “profile” in [90] of its reasons, the Tribunal meant “political profile”. The Tribunal considered the appellant’s lack of his own political profile at [89] and, in so doing, accepted the appellant’s claims established that the appellant’s uncle did have a political profile. The Tribunal then considered in [90] whether the appellant’s relationship with his uncle was such as to give the appellant his own profile sufficient to be at risk from the Taliban in Karachi. In the context of the reasoning in [89] and [90], the reference to “profile” in [90] means nothing more than prominence or importance. The Tribunal is saying that it did not accept that the appellant’s relationship with his uncle, the uncle being a person with a political profile, was such as to place the appellant at risk of harm from the Taliban if he relocated to Karachi. In reaching this conclusion, and also contrary to the appellant’s submissions, the Tribunal understood the claim the appellant was making (so much is plain from the terms of [90] of the Tribunal’s reasons, fairly read).

56    The primary judge described the part of the UNHCR guidelines on which the appellant had relied as “no more than a matter of evidence” (at [34]).

57    I do not agree that this conclusion answers the appellant’s case. In my view, in answering the question whether it was reasonable for the appellant to relocate to Karachi, the Tribunal was bound but failed to consider that part of the UNHCR guidelines on which the appellant had relied.

58    As the Minister properly acknowledged, characterising the material as “evidence” does not necessarily provide an answer to this part of the appellant’s claim, for the reasons given in SZRKT discussed above.

59    The Full Court applied the same approach in MZYTS at [68] – [70] and SZSRS at [29], [54] – [56].

60    The Minister submitted that in answering the question whether it was reasonable for the appellant to relocate to Karachi the Tribunal was not bound to consider that part of the UNHCR guidelines due to the nature of the material. The material, the Minister said, is expressed in very broad and general terms. It does not specifically relate to Karachi. It relates to “individuals at risk of being targeted by” armed militant groups and says nothing about the circumstances of the appellant. Further, according to the Minister, even if the Tribunal was bound to consider the material, given its nature, any failure to consider it would not amount to jurisdictional error. Finally, and in any event, the Minister submitted that it should be found that the Tribunal did consider this material. It referred to the UNHCR guidelines at [47] and [48]. The Tribunal also expressly said that it had reached the conclusion that the appellant was not subject to any appreciable risk of persecution in Karachi having considered the written submissions for the appellant at [84].

61    I am not persuaded by the Minister’s submissions.

62    First, the relevant part of the UNHCR guidelines was specifically put by the appellant as a reason why, in the particular circumstances of his case, relocation within Pakistan was unreasonable. This is apparent from the reference in the written submission to the relevant part of the UNHCR guidelines “[i]n consideration of the above risk factors…”, those risk factors being specific to the appellant and including the circumstances relating to the appellant’s uncle, the resulting threats, and the appellant being followed in Peshawar.

63    Second, the relevant part of the UNHCR guidelines expressly addressed the very issue with which the Tribunal was dealing, the reasonableness of internal relocation of a person who claimed to be at risk from the Taliban and other extremist groups. While the relevant part of the UNHCR guidelines does not refer to Karachi, it refers to the reach of armed militant groups “countrywide, particularly in urban centres”. Karachi is an urban centre. Further, immediately following the extract of the relevant part of the UNHCR guidelines, the written submission for the appellant contended that, “[t]herefore in all the circumstances, the Tribunal should find that it is unreasonable for the [appellant] to relocate within Pakistan”. What was being put was there was a series of factors that placed the appellant at risk and that the nature of that risk had to be assessed in light of the information in the relevant part of the UNHCR guidelines about the viability of relocation given the geographic reach of armed militant groups across Pakistan but particularly in urban centres.

64    Third, this material was cogent and held an important, even critical, place in the appellant’s claims. The Tribunal’s acceptance of the appellant’s credibility, and consequential acceptance of his uncle’s political profile, the threats the uncle received from the Taliban to himself and his family, and that the appellant had been followed possibly as a result of his uncle’s interview, supports the importance of the relevant part of the UNHCR guidelines in the appellant’s claims.

65    As a result, in order to discharge its statutory function, the Tribunal had to consider the appellant’s particular claims of being at risk in the context of the relevant part of the UNHCR guidelines. I am not persuaded the Tribunal did so.

66    While the Tribunal is not required to provide a line-by-line refutation of all the evidence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 cited in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [64]), a number of matters support the drawing of an inference that the Tribunal failed to consider the relevant part of the UNHCR guidelines.

67    First, the relevant part of the UNHCR guidelines was put in the appellant’s written submissions as a matter of specific, even determinative, relevance to the question of the reasonableness of the appellant relocating within Pakistan when weighed up with his particular risk factors. That part of the Tribunal’s reasons dealing with the same question refers to the risk factors but makes no reference to the relevant part of the UNHCR guidelines or how the risk factors should be evaluated in light of the guidelines.

68    Second, the generalised reference to the Tribunal having considered the appellant’s written submissions at [86] of the Tribunal’s reasons occurs as part of a paragraph concluding that the appellant was not at appreciable risk of persecution in Karachi. The Tribunal’s acceptance of the facts which the appellant claimed put him at risk in other parts of its reasons necessarily called up for consideration that part of the appellant’s written submission in which it was said that the risks had to be considered in light of the relevant part of the UNHCR guidelines and that, if this was done, it should be concluded that it was unreasonable for the appellant to relocate within Pakistan. Despite having reached precisely the opposite conclusion, there is no mention in this part of the Tribunal’s reasons, or anywhere else, of the relevant part of the UNHCR guidelines. In these circumstances, the terms of [86] indicate that the Tribunal overlooked that part of the written submission.

69    Third, the fact that the Tribunal referred to other parts of the UNHCR guidelines when dealing with the position of Shias generally, but failed to mention that the appellant had relied on one part of this document relating specifically to relocation of persons at risk in circumstances where he claimed to be such a person, also indicates that that the Tribunal overlooked that part of the written submissions.

70    Fourth, the fact that there is no mention at all of the relevant part of the UNHCR guidelines, given that it founded the appellant’s critical (even determinative) contention that it was unreasonable for him to relocate internally, when this was the very question with which the Tribunal was dealing in order to determine the appellant’s overall claim for a protection visa (the Tribunal having found the appellant was a person with a well-founded fear of serious harm for Convention related reasons in his home area), also supports the drawing of the inference of a failure of consideration.

71    Section 430(1)(c) of the Act, referred to by the Minister, which requires the Tribunal to set out in its reasons the findings of fact it considers material (Yusuf at [10], [33] – [35] and [68] – [69]), does not assist. The issue is not inadequacy of the Tribunal’s reasons. The issue is that the Tribunal’s reasons disclose a miscarriage of the statutory function.

72    For these reasons, I am satisfied that the Tribunal’s exercise of its statutory functions miscarried. The appeal must also be allowed on this basis.

Ground 3

73    The Tribunal did not confine its consideration of the matters on which the appellant relied in ground 3 to the risk of the appellant suffering harm.

74    Ground 3 disregards the fact that when dealing with the matters raised in that ground in the context of the reasonableness of the appellant relocating to Karachi, the Tribunal expressly considered the appellant’s capacity not only to find employment but also to “settle” in Karachi. The concept of “settlement” in a new location is broader than the capacity to find employment. The Tribunal was satisfied that the appellant would be able to settle in Karachi (at [83] and [103]). Insofar as this conclusion might be said to be affected by the errors found in respect of grounds 2, 6 and 7, I would agree. Undoubtedly, if the Tribunal had not wrongly confined its consideration of the relevance of the Karachi findings to the risk of the appellant suffering harm and had considered the UNHCR guidelines as required, then the results of that consideration would have been relevant to the capacity of the appellant to settle in Karachi. But this does not mean ground 3 discloses any error independent from grounds 2, 6 and 7.

75    Factor (a) in ground 3, discrimination against the appellant as a Shia, cannot be meaningfully separated from grounds 2, 6 and 7. The Tribunal’s reasons are replete with examples of discrimination against Shia Muslims in Karachi. As discussed, the problem is that the Tribunal only considered these in the context of the risk of harm to the appellant. In this sense, factor (a) also has not been considered as required by law. Because administrative decision-making does not usually involve a series of linear and independent steps, when administrative decision-making miscarries in one respect, other aspects of the decision-making process also will often miscarry.

76    The factors in (b) to (d) of ground 3 are different.

77    Factor (b), lack of social and other forms of support in Karachi, is addressed at [103] and [104] of the Tribunal’s reasons. Factor (c), lack of access to services, is addressed at [102] and [103]. Factor (d), lack of family and friends, is subsumed into the Tribunal’s acceptance that the appellant would be outside the tribal network which supports him in the Kurram Agency if he were to relocate to Karachi (at [103]). It could not be said that the Tribunal’s reasoning miscarried by reason of the way in which it dealt with these factors because these matters are themselves part of the practical realities of relocation for the appellant and the Tribunal did consider them.

78    Factor (e) of ground 3, increasing crime rates in Karachi, is different again. The Tribunal did not refer to increasing crime rates in Karachi when dealing with the reasonableness of the appellant relocating there. Nor, however, do I conclude that it was bound to consider that matter in so doing. First, the appellant did not claim that it was unreasonable for him to relocate to Karachi because of the increasing crime rate in Karachi. The appellant’s representative made a written submission for the purpose of the hearing before the Tribunal which identified particular factors said to be relevant to the appellant relocating within Pakistan generally. One of those factors was as follows:

(j) in urban centres, the growing pace of rural-urban migration is reportedly placing increased pressure on basic facilities and services, including access to education, employment, housing, clean drinking water and sanitation. This is accompanied by increasing crime rates.

79    The factor thus concerned increasing crime rates generally in urban centres throughout Pakistan and is expressed at a high level of generality, unrelated to the appellant or his particular circumstances.

80    Factor (e) is a matter where the Minister’s submission, that the Tribunal was not “required to make findings on every item of country information before it or to elaborate on every aspect of the practical realities of relocation” (citing, in support, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14] and SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22]), should be accepted.

81    For these reasons ground 3 cannot be accepted other than to the extent that factor (a), discrimination against the appellant as a Shia, is part of or affected by grounds 2, 6 and 7.

Ground 4

82    Ground 4 depends on acceptance of the proposition that the Karachi findings are irreconcilable with the Tribunal’s conclusions that the risk of harm to the appellant in Karachi was “remote” (at [82], [87], [88], [98] and [104]). If such irreconcilability is accepted, it is said that it follows that the Tribunal required more than a “real chance” of harm in assessing the reasonableness of the appellant relocating to Karachi.

83    Apart from the fact that it tends to suggest that the relevant issue is one only of the appellant being at risk of harm (a point which my conclusions about ground 2 disclose is not the case), the problem with this ground, or at the least the problem with resolving this ground, is that it assumes that the Tribunal considered the Karachi findings as required by law, and then posits the incompatibility of such consideration with the conclusion the Tribunal reached. The initial assumption, however, is contrary to the conclusion I have reached. The required comparison, in consequence, tends to break down.

84    The only analysis of ground 4 which is possible is artificial. It requires ground 4 to be resolved disregarding the conclusions reached about grounds 2, 6 and 7. On this unsatisfactory basis the following points can be made.

85    First, it is not in dispute that when assessing whether a person has a well-founded fear of persecution the question is whether there is a “real chance” of persecution. It is also not in dispute that such a well-founded fear may be based on a person’s membership of a group.

86    Second, it is apparent that the Tribunal understood that it was bound to apply this approach in assessing the reasonableness of the appellant relocating to Karachi.

87    Third, and contrary to the appellant’s submission, the impugned parts of the Tribunal’s reasoning do not suggest that it applied a more onerous standard or some form of impermissible probability analysis when evaluating the risk of harm to the appellant in Karachi. The Tribunal considered the overall number of Shia Muslims in Karachi being one third of the population (at [81]), the lack of evidence of any targeting of Pashtun Shia (at [81]), the lack of any evidence of targeting of Pashtun Turi (at [87]), the fact that the appellant was not politically active in Pakistan (at [89]), and the fact that the appellant is not a member of any professional group targeted by extremists (at [92]).

88    Fourth, the fact that the Tribunal accepted that the appellant was followed after his uncle’s interview makes no difference in the context of ground 4. The Tribunal dealt with that matter separately at [89] and [90], and it is subject to separate challenge underground 7. Ground 7 rises or falls on its own.

89    Finally, because the Tribunal failed to consider the Karachi findings as required by law, it is not possible to speculate about the impact such consideration might have on the Tribunal’s overall conclusion. Accordingly, it is not possible to say that one is necessarily irreconcilable with the other. Depending on what conclusions result from proper consideration of the Karachi findings, the impugned conclusion of a remote risk of harm may or may not be reasonably open to the Tribunal. The problem is that there has been no such consideration. Again, this takes us back to grounds 2, 6 and 7.

Ground 5

90    Any attempt to resolve ground 5 raises the same issues of concern as ground 4. The ground assumes that the Tribunal considered the substance of the Karachi findings as required by law and then posits the irrationality of the Tribunal’s overall conclusion given those findings. The problem is that the Tribunal did not consider the Karachi findings as required by law. The Tribunal’s overall conclusions are not illogical having regard to the way in which it reasoned. The problem is that the Tribunal’s reasoning miscarried in a way that affects many aspects of its reasoning including its overall conclusion. It may or may not be irrational or illogical to reach the same overall conclusion if consideration is given to the Karachi findings as required by law.

Ground 9

91    Given the above conclusions, it is not necessary to consider this ground (which was not particularly developed by the appellant in any event) in detail. In short, if the appellant claimed complementary protection obligations by reason of generalised violence in Karachi then I agree with the primary judge’s observation at [44] that the terms of s 36(2B)(c) of the Act make it difficult to see how such a claim could engage those obligations. Generalised violence involves a risk “faced by the population of the country generally” rather than a risk faced by the appellant personally. By operation of s 36(2B)(c) of the Act there is thus not taken to be a real risk that the appellant will suffer significant harm in Pakistan for that reason. As the Minister submitted, the decision on which the appellant relied, MZYQU, does not concern the complementary protection provisions and is thus not on point.

Conclusions

92    For the reasons given above, the appeal must be allowed and the matter remitted to the Tribunal for determination in accordance with law. I would be minded to make an order for costs in the appellant’s favour limited to 80% of his costs, given the further submissions and hearing required due to the appellant having required leave to amend ground 7. Any party wishing to vary this costs order will be granted leave to do so..

Associate:

Dated:    27 October 2014