FEDERAL COURT OF AUSTRALIA

MZAES v Minister for Immigration and Border Protection [2015] FCA 1133

THE COURT ORDERS THAT:

1.    The Administrative Appeals Tribunal be substituted as the Second Respondent.

2.    The appeal be allowed and the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be determined according to law.

3.    The First Respondent pay the Appellant’s costs of the appeal to this Court but not the costs of the application before the Federal Circuit Court.

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

REASONS FOR JUDGMENT

1    The appellant, a Pakistani citizen of Pathan ethnicity, came to Australia on a student visa in 2012 and applied for a Protection (Class XA) (Subclass 866) visa. In this matter he appeals from a judgment of the Federal Circuit Court (MZAES v Minister for Immigration and Anor [2015] FCCA 307) which dismissed his application for judicial review of a decision of the Refugee Review Tribunal, in which the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant him a protection visa.

procedural history

2    The appellant came to Australia in 2012 and on 6 December 2012 he applied for a protection visa. His application form enclosed a lengthy statement containing numerous claims in support of his application. He then submitted further documents ahead of an interview with the Department of Immigration and Citizenship (“the Department”) which took place on 21 February 2013. On 19 July 2013 a delegate of the Minister refused to grant him a protection visa.

3    On 2 August 2013 the appellant applied to the Tribunal for review of the delegate’s decision, which was heard by the Tribunal on 4 December 2013. Before the Tribunal he was represented by a migration agent and assisted by an interpreter. On 24 January 2014 the migration agent wrote to the Tribunal responding to issues raised at the hearing and providing further documents and submissions in support of the application. Later, the migration agent filed a psychologist’s report regarding the appellant’s psychological condition.

4    On 24 April 2014 the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa. The appellant then filed an application in the Federal Circuit Court for judicial review of the Tribunal’s decision. The Court dismissed the application on 25 March 2015 and the appellant now appeals from that decision.

The appellant’s claims

5    The appellant was born on 1 September 1991 in the tribal area of Bara, Khyber Agency in Pakistan and is a member of the Afridi tribe. As a boy he spent some time in the United Arab Emirates with his family, returning to his home village in 2004. He lived there until 2009, and then moved to Peshawar where he lived until he came to Australia in 2012.

6    The appellant provided a lengthy statement regarding the circumstances in his home region in Pakistan, his personal situation and his family’s situation in support of the contention that he faced serious harm in Pakistan which had given rise to a well-founded fear of persecution for reasons recognised under the Refugees Convention.

7    The statement set out numerous bases for the claim of entitlement to protection but it is unnecessary to detail all of those claims given the relatively narrow ambit of the appeal.

The Tribunal decision

8    The Tribunal accepted that the appellant was a citizen of Pakistan and accepted a number of the appellant’s claims, relevantly finding that:

(a)    members of the appellant’s family were members of the Awami National Party (“ANP”) (which was described in country information as a Pashtun nationalist party that professes a secular political ideology);

(b)    an imputed political opinion could be ascribed to the appellant due to his family’s involvement with the ANP, and that the appellant’s political views may lead him to become a member of the ANP in the future (at [63] and [67]);

(c)    the appellant belongs to the Malakdin Khel Tribe, a minor part of the Afridi tribal group, and that the complicated tribal connections in the vicinity of the appellant’s home region “have seen the allegiances of various tribes, and subsets within tribes, alter over time and create difficulty for the appellant” (at [75]);

(d)    the appellant’s home region of Bara in the Khyber province is a difficult and dangerous place and fighting between insurgent groups, and between insurgent groups and the Pakistan Army has killed and displaced people (at [80]-[81]);

(e)    the appellant had fallen foul of changes in attitudes, social rules and ways of living, and he may have been fined and forced to undertake Islamic learning because of his activities such as dancing and having songs on his mobile phone (at [82]);

(f)    the influence of Lashkar-e-Islam (an extremist Islamic group) in the appellant’s home region required his family to pay money to Lashkar-e-Islam in lieu of providing a family member as a fighter while the appellant’s family lived in the vicinity of that group (at [76]);

(g)    there was “a real chance that [the appellant] will be seriously harmed by extremist organisations, such as the Lashkar-e-Islam or Tehrik-e-Taliban, who are seeking to harm individuals from the Khyber Pakhtunkhwa region of Pakistan, due to the extremist organisation’s [sic] interest in destabilising this region generally… there is a well-founded fear of persecution for [the appellant] should he return to Khyber Pakhtunkhwa province, Peshawar, or the nearby areas of FATA, Hangu, or Baluchistan” (at [84]);

(h)    there was “a real chance that the appellant would face serious harm in Khyber Pakhtunkhwa, or FATA, or Baluchistan because of his “imputed political opinion supportive of the ANP, the opinion of his tribe that would be imputed to be anti-extremist in nature” (at [85]); and

(i)    having considered the psychologist’s report tendered by the appellant, it is clear that the appellant is unwell and has been assisted by access to medical services (at [109]).

9    The Tribunal did not accept a number of the appellant’s claims, including that:

(a)    the appellant’s brother was targeted due to his employment as an assistant accountant for a local NGO called ACE, nor that the appellant was at risk of harm due to his brother’s employment (at [45]);

(b)    the family business had to be closed because it was selling particular medicines (at [46]);

(c)    the appellant was a member of a “peace committee” (also described as a village militia) when he had not been resident in his local area for some time (at [53]);

(d)    the Taliban or any other Islamic extremist organisations would seek to harm the appellant wherever the appellant resided in Pakistan (at [98]); and

(e)    the appellant would be threatened by “secret agencies” or the intelligence services.

10    It is central in the appeal that the Tribunal did not accept that the appellant would be at risk because his uncle played music on an FM radio station (at [98]).

11    The Tribunal considered the question of the return of the appellant to live in another part of Pakistan. It found that if the appellant was returned Pakistan, provided he lived away from Khyber Pakhtunkwha province (“KPK”), Peshawar, or the nearby areas of FATA, Hangu and Baluchistan, he would not be harmed because of his background in coming from KPK or his real or imputed political opinions (at [104]). It rejected the appellant’s claim that even if relocated he would face mistreatment because he originated from the Western region of Pakistan and had an identity card showing that he originally came from KPK. It found that there were significant populations of Pashtuns in other parts of Pakistan, and that the appellant would not be alone in being identifiable as being from the Western regions of Pakistan and as a Pashtun (at [106]).

12    Relevantly to the issue of relocation, in respect of the appellant’s mental health issues the Tribunal found on the basis of country information (at [109]-[110]) that while health services in Pakistan for mental illnesses are not as available as they are in Australia, psychologists and psychiatrists are more prevalent in larger urban centres. It found that there were newly opened and expanded facilities in locations such as Rawalpindi and Lahore, which included residential care. It also found that Mirtazapine, a medication used to treat depression and post-traumatic stress disorder, is available in all metropolitan areas of Pakistan and is inexpensive.

the Federal Circuit Court decision

13    In the application for review to the Federal Circuit Court the appellant was represented by a solicitor. The application alleged that in finding that it was practicable for him to relocate to other parts of Pakistan, the Tribunal failed to take into account relevant considerations and/or took into account irrelevant considerations. Broadly, the application alleged the following grounds of jurisdictional error.

14    First, the appellant alleged that the Tribunal failed to take into account that upon his return to Pakistan he risked being persecuted and faced threats to his security by reason of ethnocentricity, adherence to Western values, membership of the ANP and his opposition to the Taliban. In this regard he submitted that the Tribunal failed to consider the following facts:

(a)    he was a Pashtun from a tribal area outside Pakistan with facial features which are different from those of most Pakistanis, which made him instantly recognisable;

(b)    he was a member of a tribal subgroup of the Afridi tribe that spoke a Pashtun dialect not spoken by most Pakistan Pashtuns, and that he does not speak the main language of the Punjab area of which Lahore is the centre, which made him recognisable; and

(c)    his national identity card which he was required to show on demand when dealing with government agencies and in obtaining employment or housing identified his place of birth as Bara Khyber Agency, which he said would invite discrimination because the average Pakistani thought that people from that area were terrorists.

15    Second, the appellant submitted that the Tribunal failed to consider some of the particular difficulties which he said he would suffer in Lahore, which the Tribunal suggested as a possible city of relocation. In particular, he contended that the Tribunal failed to consider the isolation he would suffer in Lahore when there were no members of his tribe in the city to provide him with a network or protection. In a related contention, the appellant argued that the Tribunal focussed upon the ethnic composition of Lahore but failed to take into account the linguistic and political differences between Pashtuns from Lahore and persons from the particular sub-group of the Afridi tribe to which he belonged. He argued that his isolation fell to be considered having regard to his acknowledged mental health condition.

16    Third, the appellant submitted that he was not free from a well-founded fear of persecution in Lahore because the Taliban had a presence in that city and had vowed to take its fight there.

17    Fourth, he submitted that Pashtun people were supporters of the Taliban and his presence in Lahore as an opponent of the Taliban would invite conflict with Pashtuns in that city.

18    The learned Federal Circuit Court judge held that the Tribunal approached its task correctly by asking itself two distinct questions. First, whether the appellant had a well-founded fear of persecution in another part of Pakistan, outside of his home region. Second, whether it would in any event be reasonable for the appellant to relocate to another part of Pakistan.

19    In broad summary his Honour held that:

(a)    the appellant did not claim before the Tribunal and put on no evidence that he would be identifiable or recognisable in other parts of Pakistan due to his facial features and/or because he spoke a dialect not spoken by the majority of Pakistan Pashtuns. His Honour noted that the Tribunal’s consideration of the practicability of relocation was referrable to the case the appellant advanced, and held that it was not open to the appellant to adduce new material. In any event, the argument that the appellant would be at risk from the Taliban in other parts of Pakistan because he was identifiable or recognisable was subsumed in the Tribunal’s findings that the Taliban would not seek him out in other parts of Pakistan for any of the reasons he alleged;

(b)    the Tribunal did not fail to consider the appellant’s contention that his national identity card would identify him in other parts of Pakistan and would invite discrimination against him by Pakistani’s who believed that he was from “a place of terrorists”. That contention was considered and rejected by the Tribunal;

(c)    the Tribunal did not fail to consider the isolation that the appellant would face in Lahore, including by having regard to his mental health condition. The Tribunal addressed the issues of the absence of family relationships, his isolation and the appellant’s mental health if he relocated to other parts of Pakistan and made findings which were open to it;

(d)    the Tribunal did not fail to consider the chance that the appellant might be seriously harmed by the Taliban if he relocated to Lahore. This contention was considered by the Tribunal and rejected. Further, that finding was subsumed in the express finding that the appellant faced no risk of serious harm from the Taliban (or other violent Islamic extremists) in other parts of Pakistan; and

(e)    the appellant did not claim before the Tribunal and put on no evidence that his presence in Lahore as an opponent of the Taliban would invite conflict with Lahore Pashtuns. His Honour said, again, that the Tribunal’s consideration of the practicability of relocation was referrable to the case the appellant advanced and it was not open to the appellant to adduce new material.

20    Having found no merit in the grounds advanced his Honour dismissed the application for review.

The appeal

21    On 14 April 2015 appealed to this Court. The Revised Notice of Appeal contains three grounds of appeal in the following terms:

Ground 1:    The Tribunal failed to discharge its statutory task in respect of the appellant’s claim to have been threatened by Mangal Bagh as a result of the activities of his grandfather;

Ground 2:    The Tribunal failed to discharge its statutory task in respect of the issue of whether Mangal Bagh and his Lashkar-e-Islam group presented a risk of harm outside of the territory under their control; and

Ground 3:    The Tribunal misunderstood and failed to discharge its statutory task in relation to internal relocation in that, having identified various issues going to the possibility and reasonableness of relocation, it addressed those with respect to different geographic areas.

22    The appellant accepted that the first and second proposed grounds of appeal were not argued before the Federal Circuit Court and required a grant of leave. He contended that the third ground of appeal did not require leave because the Tribunal’s treatment of whether the appellant could reasonably relocate to other parts of Pakistan was broadly agitated below.

23    Given these grounds of appeal it is unnecessary to further deal with the judgment of the Federal Circuit Court as the appellant did not contend that, on the grounds advanced, the Court erred in its decision.

Leave to raise new grounds of appeal

24    The Tribunal’s treatment of whether the appellant could reasonably relocate to live in other parts of Pakistan was broadly agitated before the Federal Circuit Court but, as the Minister submitted, the ground now raised is different to the ground considered below. It is convenient to approach the appeal on the basis that the appellant required a grant of leave for each of the three proposed grounds of appeal.

25    Parties are, of course, bound by the way a case is conducted: Siegwerk Australia Pty Ltd (in liq) v Nuplex Industries (Australia) Pty Ltd (2013) 305 ALR 412 at [97] (Robertson J); Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 at [161]-[162] (Kenny, Besanko and White JJ). A point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at trial.

26    However, in the present case there is no suggestion that the proposed new grounds could have been met by calling evidence at trial. In such circumstances it is established that an appellate court has discretion to permit an appellant to argue an issue on appeal that was not argued below where it is expedient and in the interests of justice to entertain the issue: see Water Board v Moustakas (1988) 180 CLR 491 at 497; Coulton and Others v Holcombe and Others (1986) 162 CLR 1 at 8 citing O’Brien and Others v Komesaroff (1982) 150 CLR 310 at 319 (Mason J with whom the other members of the Court concurred).

27    In deciding whether to grant leave it is relevant to consider the merits of the appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 (“VUAX”) at [46]-[48] (Kiefel, Weinberg and Stone JJ). In this case the Full Court said at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

28    In Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCAFC 1788 at [22]-[24] (Heerey, Moore and Goldberg JJ) the Full Court said, and I respectfully agree, that in the context of refugee cases where an adverse decision may have very serious consequences for an appellant, the Court should not enter upon a full consideration of the proposed new appeal ground as to do so would make the requirement for leave meaningless. Their Honours held that it was sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.

29    The Full Court in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [167] (Hill, Madgwick and Conti JJ) took a similar approach. Madgwick J (with whom Conti J agreed) explained, and I respectfully agree, that it is enough at the leave stage that the appellant has been able to mount at least a respectable argument in relation the proposed grounds. At [166] his Honour usefully set out an inclusive list of relevant questions as follows:

1)    Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

30    The following factors are relevant to my decision to grant leave.

Do the new legal arguments have a reasonable prospect of success?

31    The Minister argued that the proposed new grounds have no merit. I do not agree. I consider that each ground was attended by a respectable argument, and on the first ground I found for the appellant.

Is there an acceptable explanation of why the new legal arguments were not raised below?

32    The appellant submitted that although he was represented at the hearing he was not represented by counsel, and argued that the solicitor was inexperienced in an application for judicial review and did not understand the proper scope of such an application. The appellant did not seek to adduce evidence from his former solicitor as to any lack of understanding, but the judgment of the Federal Circuit Court tends to show that the grounds of appeal impermissibly sought to advance new arguments and/or new evidence and to impugn findings of fact that were open. In my view this indicated a lack of understanding on the solicitor’s part. That should not operate to bar the appellant from advancing new grounds.

How much dislocation to the Court and efficient use of judicial sitting time was really involved?

33    It is plainly an inefficient use of judicial time to raise new grounds on appeal but I keep in mind that the appeal was heard in two hours. The inefficiency was not so excessive as to outweigh the factors militating in the appellant’s favour.

What is at stake in the case for the appellant?

34    The Tribunal accepted that a political opinion could be imputed to the appellant due to his family’s involvement with the ANP which is a secular political organisation, and which is opposed by various Islamic extremist organisations. Importantly, it accepted that there was a real chance the appellant would be harmed by Islamic extremist organisations targeting his home region but it refused to grant him a protection visa because it was reasonable for him to relocate to live in other areas of Pakistan. While the Tribunal considered (at [38]) that the appellant had provided some inconsistent evidence regarding his accommodation, work, and threats made to his family and raised questions as to his credibility, it nonetheless found that his fears of harm were genuinely held (at [86]).

35    The appellant contended that the Tribunal failed to properly consider one aspect of the claim, which went directly to whether there was a real risk that he would face persecution even if he relocated to another part of Pakistan. It is possible to lose sight of the importance of such a matter in the multitude of refugee cases swamping the federal courts, but to my mind there can be no question that the stakes for the appellant are high.

Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

36    The Minister did not contend that there was any prejudice in granting leave to raise new grounds, however he argued, and I accept, that the mere absence of prejudice is not enough to justify a grant of leave: Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 (Wilcox J) at 349.

Other factors

37    The Tribunal’s treatment of whether it was reasonable for the appellant to relocate to live in other parts of Pakistan was before the Court below, and that proposed ground of appeal is not entirely new.

38    I consider that leave to raise new grounds of appeal should be granted.

Consideration

Ground 1

39    The first ground of appeal alleges that the Tribunal misunderstood the appellant’s claim to be at risk of serious harm from Mangal Bagh and his Lashkar-e-Islam extremist organisation in relation to his grandfather’s activities as an FM radio DJ, and consequently failed to consider that claim.

40    The appellant’s claims were first set out in a detailed 18 page statement provided with his application for a protection visa. The statement contained no paragraph numbers and the Tribunal fairly described it as “long and convoluted”. The poor quality of English, length, lack of structure and rambling form of the statement made it somewhat hard to follow.

41    At the start of the statement the appellant set out the names of twelve family members, being his father, mother, grandfather, brothers, uncles and sisters. Importantly, the appellant identified one of his relatives in the following terms:

Falak Niaz is famous in Terahwal (father uncle [sic] DJ in government FM 91 channel).

42    The statement then proceeded, roughly, chronologically. The appellant described the events giving rise to his fear of persecution that occurred from 2004 when he returned to live in Bara in the Khyber Agency in Pakistan. He described that time as the beginning of the “Talibanisation” of Pakistan and terrorism in Bara. He said that rival extremist Islamist leaders taught their doctrine in and around the area and sought to bring the people living in those areas under their control. For example, he stated that one leader ordered everyone to pray five times each day in a mosque, wear a beard and an Islamic cap whether they wanted to or not, and if they did not do so they were fined or punished. If a person displayed insufficient knowledge of Islam they faced being tied up with dogs because, it was said by the extreme Islamists, there was no difference between such a person and a dog.

43    He stated that the rival extremist groups included one led by Mufti Munir Shakir, and another named Amar Bill Maroof WA Nahya Aanil Munkar led by Namdar. He said that Mangal Bagh was one of Namdar’s mujahideen. He stated that another, apparently rival, Islamic doctrine was taught by Peer Saifur Ur Rahman. He described clashes between these groups including a dispute between Namdar and Tehreek-e-Taliban, the Pakistan Taliban, which led to an unsuccessful suicide attack against Namdar. He said that Namdar was later shot by his bodyguard in front of many people.

44    The statement made a number of references to the use of FM radio as a medium for Islamic teaching and sectarian agitation. The appellant said:

Then Mufti is invited by our tribe Malakdin Khel and he again started Dars (teaching of Islam) in our tribe. They promoted the Panjipeer and Ihli Hadees ideology of Islam which is very much against the Peerism and Brelvi Muslim. Usually the Dars was given on FM channel. (Emphasis added.)

Then the statement said:

So the Mufti group targeted the Peer group on their FM channel. They said that according to Islam ideology Peer teachings is wrong. The Peer is spreading wrong doctrine of Islam. Due to this most of people join with Mufti group which is literally known is Lashkar-e-Islam. So the Peer group also started FM radio against Mufti group and abusing every day each other. Both group started saying that they were not Muslims to each other.

45    The appellant stated that Namdar sided with the Mufti group, known as Lashkar-e-Islam. He appeared to state that, after Namdar was shot, Mangal Bagh became the main leader of Lashkar-e-Islam and the group became large and very strong. He described conflict between Lashkar-e-Islam and the Peer group including with heavy machine guns, and that the Pakistani army became involved.

46    The statement also described fighting between Lashkar-e-Islam and the Bara Peace Committee (of which his uncle was a member) the result of which was that Lashkar-e-Islam destroyed the committee and killed its supporters. The Tribunal accepted that such “peace committees” existed and described them as volunteer local militia groups formed with government encouragement as part of the Pakistan Army’s counter terrorism policy.

47    The statement described further fighting, starting in 2006, when another extremist group named Ansarul Islam established itself in Terah. The appellant said that Ansarul Islam supported the Peers group and that they burned the houses of Lashkar-e-Islam supporters and took their fields. He said that his village carried the flag of Ansarul Islam even though the villagers did not wish to be involved in the fighting, and that his village was attacked by hundreds of men with rocket launchers and machine guns. The appellant said that many villagers were taken to a private jail and they were not released for about two months and suffered heavy fines. After that time he said that Lashkar-e-Islam started killing men in the area.

48    The appellant said that to avoid the fighting his uncle told him and his brother, both of whom were under 18 years of age, to go to Peshawar to stay in his uncle’s home. The Tribunal found that the appellant resided with his family at an address in Peshawar between 2009 and 2012 (at [40]) and seemed to accept that this was his uncle’s home (at [39]). He said while he was in Peshawar the Taliban were searching for him. He said that the Taliban killed or kidnapped many people in Peshawar at that time and that he and his brother were not safe, although it was safer than at their home in Bara.

49    The statement then set out the appellant’s claim which is central to the first ground of the appeal. The statement provided:

Our other reason for tension is our grandfather (from Terahwal) because Mangal Bagh is against him because he was a DJ on the FM radio playing songs. My grandfather is living in Jamrud (other area of Khyber agency) but Mangal Bagh sending threatening notices to us because of our grandfather. He threatens to kill us because in tribal system one cousin fight for other cousin and also enemy killed my cousin instead of me. (Emphasis added.)

50    The appellant contended that the essence of this claim is clear: that the appellant and his brother were sent notices by Mangal Bagh threatening to kill them because of the activities of their grandfather on FM radio. He argued that the last sentence of the passage is the appellant’s explanation of why Mangal Bagh might do this, namely that under the Pakistani tribal system the activities of their grandfather would cause them to be perceived as enemies alongside him.

51    The reference in the statement to the appellant’s “grandfather (from Terahwal)” who was “a DJ on the FM radio” must be understood to be the person named at the beginning of his statement as “Falak Niaz… famous in Terahwal (father uncle [sic] DJ in government FM 91 channel)”. The appellant seemingly used the term “grandfather” to mean his father’s uncle. The appellant’s inconsistent nomenclature is understandable given his poor English language skills. For clarity, I will describe the person referred to in the statement as the appellant’s “grandfather”.

52    The appellant submitted that the Tribunal fundamentally misunderstood this claim. He argued that it was premised on a direct threat of harm having been made to the appellant in consequence of his grandfather’s radio activities. He contended that the Tribunal erred by approaching the claim on the basis that it involved an assertion that the appellant and other members of his family had a propensity or cultural motivation to become involved in revenge should their grandfather be harmed by Mangal Bagh and the Lashkar-e-Islam organisation.

53    In my view the Tribunal’s understanding of the appellant’s claim in this regard is clear (at [55]) where it said:

The Tribunal has also considered the applicant’s claims that he would be at risk because his uncle played music on an FM radio station. The Tribunal asked why the applicant would be at risk because of his uncle’s activities. The applicant stated that the structure of family in Pakistani requires that if a member of the family is attacked by an enemy, his son would seek revenge. The Taliban itself states that if one member is considered an enemy, everyone is considered one. His uncle had been issued with a warning, advising him to stop playing the music. The applicant is not sure if the radio station is still running or if his uncle has heeded that warning or not. While the Tribunal considers that the Taliban may see the uncle as not adhering to their principles, the Tribunal does not accept that this would affect the applicant in any way. His claim that any threat or use of violence against his uncle would see his whole family involved in some form of revenge activity is countered by the applicant’s evidence that in response to the disappearance of a cousin by ‘secret agencies’, the family has lodged a class action in court and are waiting for some legal response to their request for information. This is not a violent response, as the applicant stated would occur, but recourse to legal remedies that may or may not be effective. It belies the claim that the applicant would become involved in some form of revenge when a family member is harmed…

54    The appellant contended that this passage showed that the Tribunal misunderstood his claim, and considered a different claim to the claim advanced in his statement. He argued that by failing to determine the claim actually made the Tribunal did not properly discharge its review function. The appellant argued that there were three components to the Tribunal’s misunderstanding:

(a)    first, the appellant contended that the Tribunal dealt with the claim by reference to threats made to his grandfather - when in fact he claimed that Mangal Bagh made threats to kill him because of his grandfather’s activity on FM radio;

(b)    second, the appellant contended that the Tribunal limited its consideration of the death threats to a consideration of the risks of harm arising from revenge activity by the appellant and/or his family - when in fact the claim related to the risk of the appellant being killed; and

(c)    third, the appellant contended that the Tribunal dealt with the claim by reference to threats of harm by the Taliban - when in fact he claimed that Mangal Bagh and his Lashkar-e-Islam forces made the threats.

55    In response the Minister sought to rely on a post-hearing submission to the Tribunal by the appellant’s migration agent, which stated:

The family commenced to reside in Peshawar following their displacement from Khyber agency. The family moved to Peshawar in 2009. The review applicant states that the internal displacement is evidence of itself that the family was fearful of the Taliban forces. Moreover the family came to the particular attention of the Taliban forces because of their opposition to the Taliban. Note the family were members of the Laskar and as indicated by the review applicant. His Uncle ran a radio station in opposition to the Taliban. This is a government funded radio station running in opposition to the FM Mullahs that are renowned as running radio stations to promote their version of the Koran and the promotion of Sharia law.

(Emphasis added.)

56    The Minister contended that the appellant’s claims “evolved” through the visa application process and in the post-hearing submission. He argued that it was significant that the post-hearing submission referred to the appellant’s uncle rather than to his grandfather and to the Taliban rather than to Lashkar-e-Islam, and that the submission described the organisation from which the appellant feared harm as the “Taliban” and made reference to “FM Mullahs” but did not expressly refer to Mangal Bagh or Lashkar-e-Islam. The Minister submitted that the post-hearing submission showed that the appellant moved away from the claim of fearing harm from Magal Bagh’s Lashkar-e-Islam forces as a result of his grandfather’s work as a DJ at an FM radio station. In the alternative, the Minister argued that the Tribunal considered and rejected that claim.

57    I do not accept these contentions. First, in my view it is wrong to ascribe much significance to the changes in in the nomenclature used to describe the appellant’s relative who worked as a DJ. Whatever nomenclature the appellant used in relation to that relative - whether “uncle” or “grandfather” or “father uncle” - made no difference to the essential nature of the appellant’s claim. It is also wrong to ascribe much significance to the post-hearing submission’s use of “Taliban” as a general descriptor of extremist Islamist organisations in that part of Pakistan. There are many instances in the Tribunal’s decision where it seems to use “Taliban” as a general descriptor of such organisations, doing so in phrases such as, “extremist or Taliban related issues”, “the Taliban or any insurgent organisations” and “anti-insurgent or anti-Taliban”.

58    Second, there is nothing in the Tribunal’s reasons to indicate that it considered the appellant’s post-hearing submission amounted to a change or “evolution” in his claim, and in particular an abandonment of the claim of a fear of harm by Mangal Bagh and his Lashkar-e-Islam forces. Indeed, the Tribunal said (at [76]) that:

The applicant’s statement discusses at length the influence of Lashkar-e-Islam in the applicant’s home region. He provides information about threats from Lashkar-e-Islam, such as fly our flag or we will burn your house down, pay us money, threats to kidnap or harm family members… [t]he information as provided by the applicant… is consistent with the… country information… The applicant claimed that his family had to pay money to [Lashkar-e-Islam] in their home area in lieu of providing a family member as a fighter. The Tribunal accepts that while the family lived in this location this money was paid, but the money stopped being paid when the family removed itself from the [Lashkar-e-Islam] vicinity [sic].

If the Tribunal considered that the appellant had abandoned his claim in respect of fear of harm by Mangal Bagh and Lashkar-e-Islam or had changed his account in that regard I would expect it to have commented on that (perhaps even drawing an inference as to his credibility). It did not.

59    Third, as the above extract shows, the Tribunal was alive to and considered threats to the appellant emanating from Lashkar-e-Islam. If the Tribunal thought there was a question as to whether the appellant’s claim - in relation to the risks of harm from Lashkar-e-Islam arising because he had a famous relative who worked as a DJ - had changed in a manner that affected the prospects of success in that claim, then the Tribunal should have clarified that matter. If the Tribunal proceeded to determine the application without clarifying whether the post-hearing submission made such an important change in the appellant’s claim it failed to accord the appellant procedural fairness.

60    In my view the appellant’s claim did not materially change through the post-hearing submissions, and the Tribunal was required to consider the claims made in the appellant’s statement. As I explain, it did not.

61    Fourth, in the alternative, the Minister contended that the Tribunal properly considered the appellant’s claim that he feared harm because of his famous grandfather’s work as a DJ on an FM radio station. I do not accept this contention. The Tribunal’s reasons expressly stated (at [55]) that:

His uncle had been issued with a warning…

This showed the Tribunal’s fundamental misunderstanding of the appellant’s claim. The Tribunal failed to consider the express and intelligible claim in the appellant’s statement that he was threatened with death.

62    Instead, as the passage extracted above at [53] shows, the Tribunal considered whether if the appellant’s grandfather was harmed by the Taliban and the appellant and his family were required (as a result of their tribal affiliation) to take revenge in that regard, the appellant would then suffer a risk of harm. By considering only the possibility of the appellant engaging in revenge activity, the Tribunal failed to deal with the claim of risk of serious harm to the appellant arising from being targeted personally by Mangal Bagh and his Lashkar-e-Islam forces as a consequence of his famous grandfather’s work as a DJ on FM radio.

63    I consider the Tribunal misconstrued a critical factual claim - that the appellant was threatened personally and faced a risk of serious harm from Mangal Bagh and his Lashkar-e-Islam forces in relation to his famous grandfather’s work as an FM radio DJ. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263 (Black CJ, French and Selway JJ) at [63] the Full Court said that where the decision-maker:

…makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

64    Fifth, in response the Minister contended that the appellant’s claim that he had been threatened personally was not supported by probative evidence and relied on SZTDY v Minister for Immigration and Border Protection (2015) 145 ALD 381; [2015] FCA 303 at [35] (Perry J). In that case her Honour cited WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [45], and highlighted the requirement for probative material as follows:

If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material…

65    I do not accept this contention. I consider the appellant’s claim of having been personally threatened was supported by probative material. I say this because the Tribunal had country information concerning Mangal Bagh and Lashkar-e-Islam and it found that organisation to be “an important militant group in Khyber” (at [77]). The appellant’s statement was replete with numerous claims of Lashkar-e-Islam killing and otherwise harming its opponents, and the Tribunal considered non-specific threats to the appellant from Lashkar-e-Islam. In that context the Tribunal had before it the appellant’s statement regarding the personal threat to the appellant from Mangal Bagh and Lashkar-e-Islam, but it misunderstood that statement in the manner I have described. Because the Tribunal misunderstood, and therefore did not consider, the appellant’s claim that he was personally threatened it failed to discharge its statutory task and to exercise its jurisdiction.

66    Another way of understanding the Tribunal’s constructive failure to exercise its jurisdiction is by reference to its failure to consider a “substantial, clearly articulated argument relying upon established facts” that would establish a well-founded fear of persecution if accepted. It is established that such a failure may amount to a failure to afford procedural fairness or a failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (“Dranichnikov”) (Gummow and Callinan JJ at [24], Hayne J agreeing at [95]).

67    The relevant claim was substantial and articulated clearly enough, and it was based on an established fact regarding the grandfather’s FM radio activity, as the Tribunal seemed to accept that the grandfather undertook that activity (at [55]). If the claim was accepted by the Tribunal it might establish a well-founded fear of persecution. I also note my agreement with Griffiths J in SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365; [2014] FCA 863 at [79] where his Honour said that Dranichnikov should not be read as imposing an inflexible requirement for “established facts” to be shown in all cases, before a lack of procedural fairness may be established.

68    The appeal succeeds on the first ground.

Ground 2

69    The second ground of appeal alleges that the Tribunal failed to discharge its statutory task in respect of whether Mangal Bagh and his Lashkar-e-Islam group presented a risk of harm outside of the territory under his or its control.

70    The Tribunal found that the appellant faced a risk of harm upon return to his home region (at [85]) and then considered whether the appellant could reasonably relocate to other parts of Pakistan. It found that the appellant could safely relocate to live elsewhere.

71    However, the appellant claimed that he faced serious risk of harm because a threat to kill was made by Mangal Bagh and Lashkar-e-Islam to him personally, rather than merely because he was the member of a group that was in conflict with Lashkar-e-Islam. In relation to the issue of relocation, this required a consideration that took into account the specific nature of the threat and not just the risk of harm by reason of his general characteristics. Because the Tribunal misunderstood (and therefore failed to address) the appellant’s claim that he had been personally threatened by Mangal Bagh and Lashkar-e-Islam in connection with his grandfather’s activities as an FM radio DJ, the Tribunal was not in a position to properly consider the issue of relocation. In that regard it failed to discharge its review function and exercise its jurisdiction. I am unable to conclude that the Tribunal’s decision concerning the appellant’s prospects of relocation was entirely independent from its failure to consider his claim of having been threatened by Mangal Bagh and Lashkar-e-Islam.

72    The appeal succeeds on the second ground.

Ground 3

73    The third ground of the appeal alleges that the Tribunal misunderstood and failed to discharge its statutory task in relation to the issue of relocation. The appellant submitted that having identified Lahore and Rawalpindi as places within Pakistan that were suitable for his relocation because mental health treatment was available and because it was safe for the appellant to express his support for the ANP in those places, the Tribunal then impermissibly considered general country information in respect of the whole of Pakistan to make its assessment of the risk of harm to the appellant from extremist Islamist organisations.

74    As I said in relation to the second ground of appeal, because the Tribunal misunderstood (and therefore failed to address) the appellant’s claim that he had been personally threatened by Mangal Bagh and Lashkar-e-Islam in connection with his grandfather’s activities as an FM radio DJ, the Tribunal was not in a position to properly consider the issue of relocation.

75    However, I do not otherwise find the Tribunal’s consideration of the issue of relocation wanting. The Tribunal identified Lahore and Rawalpindi as acceptable relocation areas in respect of the available mental health services and in allowing for the appellant to safely express support for the ANP. I can discern no jurisdictional error in the Tribunal then considering country information in relation to the whole of Pakistan rather than those specific areas. Of course, in considering risk of harm to the appellant by extremist Islamist organisations in other parts of Pakistan, the Tribunal was required to consider those risks in Lahore and Rawalpindi as that was where the Tribunal said he could relocate. On a fair reading of the decision the Tribunal did consider Lahore and Rawalpindi, doing so as part of its consideration of the risks throughout Pakistan.

76    Insofar as it is independent of the second ground of appeal, the third ground of appeal fails.

CONCLUSION

77    I have ordered that the decision of the Tribunal be set aside and the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be determined according to law. The Minister must pay the appellant’s costs of the appeal to this Court but not the costs of the application before the Federal Circuit Court. This costs order is appropriate because the appeal grounds which were successful before this Court were not run before the Federal Circuit Court.

Associate:

Dated:    23 October 2015