FEDERAL COURT OF AUSTRALIA

AHX15 v Minister Immigration and Border Protection [2015] FCA 1183

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The First Respondent pay the Appellant's costs of the appeal, to be taxed if not agreed.

3.    The Appellant file and serve a minute of orders of relief sought within 7 days.

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

REASONS FOR JUDGMENT

OVERVIEW

1    The appellant appeals from a decision of the Federal Circuit Court of Australia delivered on 15 May 2015. By the primary judge’s decision, his Honour dismissed an application for judicial review of a decision made by the Refugee Review Tribunal on 25 February 2015. That decision, in turn, had affirmed the decision of a delegate of the Minister for Immigration and Border Protection made on 26 July 2013 to refuse to grant the appellant a protection visa. This notice of appeal was filed out of time, but the Court gave leave to file out of time on 13 July 2015. There is only one ground of appeal, namely, that the primary judge should have concluded that the Tribunal had failed to consider a component integer of the appellant’s claim, or substantial submissions made by the appellant on material before the Tribunal.

2    The appeal raises a number of conventional principles. The specific question raised, however, is whether the Tribunal determined a specific claim made by the appellant.

3    The appellant lost a foot as a result of a landmine laid by the Taliban in Pakistan. He contended that, because of his particular religious belief, he received a lower standard of medical treatment in relation to that injury and, for the same reason, would receive a lower standard of treatment for any future care in Pakistan.

RELEVANT HISTORY

4    The appellant is a Pakistani male of Pashtun ethnicity, coming from the Bangash Tribe. He is a Shia Muslim. He arrived in Australia on 22 July 2012 as an offshore entry person. On 10 April 2013, he applied for a protection visa. On 26 July 2013, the Delegate refused to grant him a protection visa. In consequence, the appellant applied for review of the Delegate’s decision to the Tribunal.

5    The essential claims advanced before the Tribunal, where the appellant was found to be a generally credible witness, were that:

(a)    he had a well-founded fear of persecution by reason of his race, religion and ethnicity within Pakistan, as well as his actual or imputed political opinion being against the Taliban and in favour of the US or generally pro-Western; and

(b)    there was a real risk he would suffer significant harm were he to return to Pakistan on the basis of similar grounds to those above.

6    On 25 February 2015, the Tribunal, after careful consideration and with detailed reasons, affirmed the Delegate’s decision. The appellant sought judicial review. The primary judge, on 15 May 2015 by ex tempore reasons, dismissed the application for judicial review with costs.

7    The same argument that was advanced on appeal by counsel for the appellant before the primary judge was argued before this Court.

8    That claim was essentially that the Tribunal failed to have regard to or consider a component integer of the appellant’s claim for protection, which I will refer to as his religion/medical claim, namely, that:

(a)    when undergoing previous medical treatment in Pakistan, he had received a lower standard of care by a Sunni doctor due to his religious beliefs;

(b)    were he returned to Pakistan, he would continue to require ongoing medical care due to his injury and would receive a lower standard of care due to his religion; and

(c)    while the Tribunal did address the availability of medical care for the appellant in Pakistan in its findings in connection with the question of the reasonableness of relocation, it did not specifically address his religion/medical claim on relocation.

9    Essentially, the appellant contended throughout that, particularly, because of this religion, he would receive a lower care of medical treatment.

10    The appellant’s religion/medical claim was to be found in a detailed document entitled ‘Statement of Claims’. This document was attached to his protection visa application. The way it was expressed in that claim was under the heading ‘Why I left that country’ in these terms:

In around July 2010, as I was walking out of my home I stepped on a small mine which exploded. I was taken to the hospital in Parachinar at first. While at this hospital I was treated by a Sunni doctor who removed my foot from the ankle down. I believe that if I had been a Sunni he would have taken greater efforts to save my foot and that I did not get proper care as I am a Shia. After this I was sent to Peshawar Hospital where I remained until I recovered.

11    Against that background, the claim continues under the heading ‘What I fear may happen to me if I return to that country and why’ in these terms:

I also now have a permanent injury to my foot that does require me to get ongoing care. While in Australia, I have been receiving this care including that I am currently in the process of getting an artificial foot to assist me in walking. I do not believe I would be able to get the required care I need in Pakistan for my leg. I believe if I was to show my ID card in most Pakistani hospitals that they would not provide me with proper treatment as they would be able to identify me as being a Shia Muslim.

12    The appellant’s religion/medical claim was clearly before the Delegate and was repeated in written submissions before the Tribunal.

13    When the Tribunal came to publish its reasons, the entire Statement of Claims, which was reasonably extensive and included these extracts, was set out verbatim. No criticism is made by the appellant with regards to the Tribunal setting out the claims verbatim, but it is argued that when it comes to the question of examining the reasoning in order to assess whether the nature of the claim was specifically understood and addressed, little assistance is gained from the context of the reasoning as the claims were not independently assessed.

BEFORE THE TRIBUNAL

14    The Tribunal’s reasons were fulsome and quite detailed. The fairly extensive Statement of Claims contributed to this detail. The Statement of Claims was recited fully at [19] of the Tribunal’s reasons as follows:

1.    I was born on 20 September 1981 in the village of Shelawzan, Parachinar, Upper Kurram Agency in Pakistan.

2.    I am a Pakistani citizen and do not have a right to nationality or a right to remain in any other country.

3.    I am a Shia Muslim, of Pakistan ethnicity and a member of the Bangash tribe.

4.    The area of Parachinar is predominately made up of Shia Muslims from the Bangash and Turi tribes. My village is made up solely of Shia Pashtuns and includes a mix of members of the Bangash and Turi tribe.

My family

5.    My father died around 1987 after he was killed in our village when he was caught up in fighting between Shia and Sunni Pashtuns. After my father’s death my mother remarried and had four children with my stepfather.

6.    After my mother remarried I started to live with my paternal uncle, Sabir Hussain, and his family.

7.    I married in around 2009 to a Shia Muslim woman from my same tribe. My wife passed away in around 2011 due to problems with her pregnancy. Our child also died at this time. I do not have any children and have not re-married.

8.    While I have been in Australia I have also had limited contact with my mother due to my difficult relationship with my stepfather. I do not currently speak to anyone back in Pakistan.

9.    My relationship with my uncle, Sabir Hussain, has also broken down while I have been in Australia. While in Australia some pictures had been posted on my Facebook account showing me with some women. My uncle accused me of entering into a relationship with non-Muslim women.

10.    Out of anger my uncle sold the home that I had been living in while in Pakistan. The home had been under my father’s name. My uncle has kept the money from the sale of this home.

The country to which I fear returning

11.    I fear returning to Pakistan.

Why I left that country

12.    The situation in my area of Parachinar has become increasingly violent and insecure over the last five or six years largely as a result of the deteriorating relationship between the Taliban and members of my tribe, the Bangash, as well as the Turi tribes in this area.

13.    The problems between members of my tribe and the Taliban stared in around 2005 or 2006 at a time when the Taliban were trying to travel through the Parachinar area in order to get to Afghanistan and fight the US and coalition forces that were present in Afghanistan at this time. Members from the Bangash tribe had refused to give Taliban access through our areas during this time.

14.    Most of the Shia Pashtuns in Parachinar, including members of the Bangash tribe, were supportive of the US armed forces at this time and also did not want the conflict that was occurring in Afghanistan to come into our own area. For this reason, members of our tribe and the Turi tribe had spoken out against the Taliban and tried to prevent them from travelling through the area.

15.    As a result of the actions by members of the Bangash and Turi tribes, the Taliban started to target Shia Pashtuns in Parachinar.

16.    The situation started to escalate after an attack in around 2005 or 2006 by the Taliban on a number of Shia Muslims who were marching in a procession during the Holy month of Maharam along a main street in the city of Parachinar. At this time the Taliban opened fire on the Shia Muslims marching in the procession. There were members of the Pakistani army also present who also opened fire at this time on the Shia Muslims in the procession. Many Shia Muslims were killed as a result of this attack. This incident marked the start of a period of violence carried out towards Shia Muslims in my area and the start of increasing difficulties that I have faced in Parachinar up until I was able to leave Pakistan.

17.    In addition to the insecurity for Shia Muslims in Parachinar, I also encountered many difficulties as a result of the closure of the road leading out [sic] Parachinar to Peshawar. The road closures started from around 2006 and continued from time to time right up until I left Pakistan.

18.    During the time the road was closed, there would be no way to travel to Peshawar unless you travelled through an alternate route that passed through Afghanistan or travelled by plane. The cost for travelling by plane to Peshawar was very expensive and most people in Parachinar could not afford the costs of this flight. The planes were also not always regular.

19.    From around 2005 to 2008 I started working as a transport driver where I would deliver items including vegetables. On a number of occasions I would be caught up in either Parachinar or Peshawar as the roads were closed by the Taliban. This caused not only issues on my ability to travel freely but also impacted me financially as it prevented me from being able to work and earn money.

20.    From around 2008 I started my own carpentry business and required for this business to get access to supplies from areas outside of Parachinar. The blocking of the road to Peshawar caused me significant financial difficulties while trying to run my carpentry business. I had many outgoing costs for my business but when the roads were blocked I was not able to do my work. I was paying out money during this time but not getting much money.

21.    On one occasion in 2008, I was required to get supplies for my business urgently but the roads had been closed. At this time I had no other option but to travel through Afghanistan in order to get to Peshawar. This is the only time I have travelled in Afghanistan. I was in fear throughout the trip that the Taliban may stop me. I also had to change my appearance to look more Sunni Afghan in order to try and avoid being stopped or targeted by the Taliban.

22.    From around 2009, due to the road closures, I started to order materials for my business over the phone from a Hazara who was in Afghanistan. The Hazara would transport the materials to the border between Afghanistan and Pakistan where there was a US Army camp. The materials would be left near to where the US Army Camp was and I would go and collect them.

23.    In around July 2010, as I was walking out of my house I stepped on a small mine which exploded. I was taken to the hospital in Parachinar at first. While at this hospital I was treated by a Sunni doctor who removed my foot from the ankle down. I believe that if I had been a Sunni he would have taken greater efforts to save my foot and that I did not get proper care as I am a Shia. After this I was sent to Peshawar hospital where I remained until I recovered.

24.    I later had found out from my uncle while recovering in the hospital that mines had been scattered around my home. When I had walked out of my home I had actually avoided two big mines and stepped on the smaller mine. If I had taken a different path when walking out of my home I probably would have been killed.

25.    Around a month after this incident, I started to receive calls from people who identified themselves as being from the Taliban. The Taliban demanded that I stop my carpentry business and accused me of doing work for the US Armed forces [sic]. The Taliban threatened if I did not stop my business that they would kill me. I received around three calls from these men at this time that took place over a period of around 5 months.

26.    As a result of these incidents, I started to suspect that the Taliban might have believed I was doing work for the US Army Base near the border with Afghanistan when I was going to collect the supplies left by the Hazara. In order to get to this area I had to travel past checkpoints controlled by the Pakistani Army. It is know that there are informers working for the Taliban within the Pakistan Army. I believed that an informer may have passed news of my visits to this area to the Taliban and this was the reason my home was targeted and why I received the threatening phone calls.

27.    As a result of the bomb attack, I did not continue my carpentry business and sold this to my step brothers. After I had recovered from my injuries I started to operate a cosmetics business in Parachinar city. Again it was often difficult to run this business due to problems in obtaining supplied while the roads out of Parachinar were blocked by the Taliban.

28.    In 2011 my wife passed away due to difficulties with her pregnancy. I believe my wife’s death was ultimately as result of the road closures occurring in our area that prevented her from getting access to the medical care she needed. At the time of her death my wife had been in labour. My wife had visited the Parachinar hospital but there was not the facilities there needed to assist her with the delivery of the baby. I had tried to get my wife to Peshawar hospital as quickly as possible but the road was blocked at the time. My wife and our child passed away in Parachinar. Issues like what has happened to my wife is something that has become common in Parachinar as many people in my area have been denied access to proper medical care and treatment due to the road closures.

29.    In 2011, I started to order supplies for my cosmetic business through a supplier in Afghanistan due to the issues I was continuing to face in getting supplies from Peshawar as a result of the road closures. I had to again go to the same area near the US Army base on the border with Afghanistan to go and collect these supplies.

30.    The situation in Parachinar at this time was becoming increasingly dangerous and there was fighting occurring regularly. In the year before I left Pakistan there were also two bomb explosions that specifically targeted businesses similar to mine who had owners that had [sic] threatened by the Taliban. One of these people targeted was a friend of mine, Bashir, who ran a furniture business and who had informed me before his death that he had been receiving similar threats form the Taliban as me.

31.    Shortly after Bashir’s business was targeted I started to receive more threatening phone calls form the Taliban. Due to these threatening calls I sold my business in early 2012. After this I decided that it was no longer safe for me to remain in Pakistan and so I made arrangements to leave the country.

32.    Around July 2012 I flew out of Pakistan and travelled to Thailand. I remained in Thailand for a few hours in transit. From Thailand I flew to Malaysia where I stayed for a few days.

33.    From Malaysia I travelled by boat illegally in Indonesia. I then travelled from Indonesia by boat which was intercepted by the Australian authorities and I was brought to Christmas Island on 22 July 2012.

34.    Since I have been in Australia I have not had much contact with my family in Parachinar. However, I remained concerned particularly in relation to the security of my step brothers who I had sold my furniture business to.

35.    I have continued to hear from friends from Parachinar who have also left the country [sic] of the ongoing violence in this area and of how members of my tribe and Shia Pashtuns from our area continue to be targeted by the Taliban.

What I fear may happen to me if I return to that country and why

36.    I fear if I was forced to return to Pakistan that I would face serious harm including that I would face restrictions on my ability to travel freely, would face severe physical harassment and abuse or that I may possibly be killed.

37.    I fear that I would remain a target of the Taliban and other Sunni extremist groups who continue to operate in and around Parachinar and are targeting members of my same religious and ethnic group.

38.    As a Shia Muslim from the Bangash tribe, I would be identified as being an opponent to the Taliban because of the actions of members of my tribe in speaking out against the Taliban.

39.    However, in my case, I believe I would be at a greater risk of harm because the Taliban have identified me as someone they believe was supporting the Americans who were based close to the Afghanistan border due to my travel to this area to collect supplies for my business.

40.    I fear that the Taliban would now have an ever greater reason to suspect me as an opponent or a supporter of the West because I have travelled to a non-Muslim and Christian country.

41.    I also now have no family left in Pakistan who would be willing to support me if I was to return back to Pakistan. My uncle no longer speaks to me and he has since sold my house and kept the money. I already faced financial difficulties while in Parachinar due to the road closures and disruptions caused to my businesses in [sic] due to the Taliban. My situation would be much worse now that I go back without a home, no money to be able to start a new business, no family to help me re-settle and as the injuries to my leg would continue to restrict the type of work opportunities that would be available to me.

42.    I also now have a permanent injury to my foot that does require me to get ongoing care. While in Australia, I have been receiving this care including that I am currently in the process of getting an artificial foot to assist me in walking. I do not believe I would be able to get the required care I need in Pakistan for my leg. I believe if I was to show my ID card in most Pakistani hospitals that they would not provide me with proper treatment as they would be able to identify me as being a Shia Muslim. [sic]

Who I think may harm/mistreat me in that country and why.

43.    I fear that I would be at risk of being targeted by the Taliban and other Sunni extremist groups who continue to operate particularly around my area of Parachinar and are targeting Shia Muslims from the Bangash tribe. In my case, the Taliban have previously accused me of supporting the US troops who were based near my area. I also believe that they will now have an even greater reason to suspect me as an opponent to them because of my travel to a non-Muslim, Christian country.

Why I think the authorities of that country cannot or will not protect me if I were to go back to that country.

44.    The Taliban continue to remain active and strong throughout parts of Pakistan and particularly around the Parachinar area. The Pakistani government has not taken steps to try and protect the Shia Muslims living in my area from harm by the Taliban over the last few years where there has been growing violence. I believe the Pakistani government would continue to deny protection to me and the other Shia Muslims living in Parachinar.

45.    Around a month ago, in around March 2013, I heard that a representative for Parachinar in the Pakistani government, Dr Riaz Bangash, had been assassinated by the Taliban while in Peshawar. Dr Riaz was a Shia Muslim from the Bangash tribe. If a senior member of the Pakistani government is not able to obtain protection form the Pakistani authorities, I could not expect protection myself.

46.    I had experienced in Peshawar on a number of occasions being harassed by the Pakistan police. I believe I was targeted as they identified me as Shia Muslim and they do not believe we belong in Pakistan. While living in a country where the authorities discriminate against you because of your religion, I could not expect protection from these same authorities against the threats I fear from groups like the Taliban.

Would I be able to relocate to another part of Pakistan?

47.    My ID card would be able to identify me as a Shia Muslim from the Bangash tribe throughout the country. This would be confirmed through my name as well as that it identifies me as originating form Parachinar I can also be identified as being from Parachinar from my accent and my facial features.

48.    As a Shia Muslim and a Bangash from Parachinar I would be at risk of being targeted throughout Pakistan. Shia Muslims continue to be targeted throughout Pakistan and this is not just limited to the Parachinar area.

49.    Given difficulties I face with my leg and my lack of family support, I also do not believe I would be in a position to support myself in a new area within Pakistan. Without support from a family or community, I would face significant hardship.

15    The other key part of the Tribunal’s detailed reasoning was in the passage where the claims were evaluated. The Tribunal said (at [70]-[77]) (footnotes omitted):

70.    It has also been submitted that because of his residence in Australia, a Christian country, he would be banned on return to Pakistan. At the hearing before the Tribunal, the [appellant] [sic] that if he went back and they came to know that he had come to Australia he would be seen as pro-West. The applicant stated he knew someone who had returned to the area and had been·harmed. However as the Tribunal put to the [appellant], there are many Pakistanis who travel out of the country, including to Western and nominally Christian countries like Australia. The Western influence remains pervasive in many parts of Pakistan, particularly in large urban centres. It has said that many Pakistanis have relatives living in Western countries, that those living abroad frequently return to Pakistan to visit relatives and that they are not at any increased risk because they have spent time in Western countries. It has said that it has no evidence that individuals will be subject to discrimination or violence as a result of having spent time in Western countries. The Tribunal does not accept on the evidence before it that there is a real chance that he will be persecuted because he will be returning from a Western country or specifically from Australia if he returns to Pakistan now or in the reasonably foreseeable future.

71.    For the reasons given above the Tribunal does not accept that, if the [appellant] returns to Pakistan now or in the reasonably foreseeable future and relocates to Islamabad, there is a real chance that be will be persecuted for reasons of his race (Bangash), his religion (Shia), his actual or imputed political opinion in support of the Pakistan authorities and the West and against the Taliban, other Sunni extremist groups and Sunni extremist sympathisers on account of his profile as a male Bangash Shia Muslim from the Kurram Agency or his profile as a Shia from the Kurram Agency who has lived in the West or specifically in Australia, or as a spy for any entity, or his membership of the following particular social groups: 'The Bangash tribe', 'Parachinar Shias', 'Young male Shi'a Muslims from Kurram Agency', 'Shi'a Bangash from FATA', or 'Returnees from a Western country', or any combination of these claims. The Tribunal finds that, if the [appellant] relocates to Islamabad, there will be no appreciable risk of the occurrence of the persecution which he claims to fear if he returns to Pakistan.

72.    It is also necessary to address whether it is reasonable, in the sense of practicable, for the [appellant] to relocate to Islamabad. The [appellant] has stated to the fact that he has no family to rely on to assist him to resettle, no money, is illiterate, and that the injuries to his leg would continue to restrict the type of work opportunities that would be available.

73.    The Tribunal noted country information that prosthetics were available in Pakistan, such as that [sic] in Rawalpindi. The [appellant] is already used to getting assistance with his prosthetic in different locations, he received his original prosthetic in Peshawar sent to him from Rawalpindi. He has more recently received a further prosthetic in Australia. The Tribunal discussed with the [appellant] the prosthetics industry in Pakistan, including the availability of treatment across Pakistan. The [appellant]'s own experience is that he needed to leave his home region and travel to Peshawar to receive the appropriate medical treatment, with a device sent from Rawalpindi. The Tribunal considers that the [appellant] will be better placed than in his home region to receive the appropriate treatment and maintenance for his prosthetic. The Tribunal does not accept that the [appellant] cannot receive the appropriate treatment and assistance for his injury in Pakistan generally.

74.    The [appellant] has a prosthetic leg, arising from an injury suffered in his home region. Despite this injury, the [appellant] has shown himself to be a capable man who has worked in a variety of areas, including in furniture building and in retail, selling products including cosmetics. The [appellant] has stated that because of his leg he is required to sit down quite a bit. The Tribunal does not consider that this means that the [appellant] is unable or incapable of finding employment due to injury, the Tribunal considers that the [appellant] has been able to manage quite effectively despite this difficulty. The Tribunal notes that many large urban centres are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than other areas. The [appellant] is a single man who has shown that he has been capable of working in a variety of fields, the Tribunal does not consider that the [appellant] is incapable of finding opportunities in different locations within cities like Islamabad to establish himself. The [appellant] has managed to shown [sic] himself capable of maintaining himself without family support, since his wife passed away in 2011, and more recently through his extended residence in Australia. The Tribunal considers that the [appellant] can continue to look after himself without requiring family assistance. The Tribunal considers that it is not unreasonable for him to relocate to a city like Islamabad.

75.    The Tribunal has also considered the level of generalised violence in Islamabad. In their submission dated 5 November 2014 the [appellant]'s representative stated that the situation in Pakistan was deteriorating generally. The Tribunal accepts that there has been violence in Islamabad and its surrounds, such as an extremist attack on a District Court House in Islamabad on 3 March 2014 resulted in the deaths of 13 people and wounded· 34 people, that on 9 April 2014 an attack on a fruit and vegetable market on the outskirts of Islamabad, between it and its twin city of Rawalpindi, killed at least 20 people and injured up to 100 people, and that on 24 May 2014 bombs were detonated in two areas of Islamabad, killing at least one person and injuring two others. However, as likewise referred to in that travel advice, terrorist attacks in Pakistan in 2013 were concentrated in Quetta and other parts of Baluchistan, Karachi, Peshawar and other parts of Khyber Pakhtunkhwa and the FATA.

76.    The Tribunal accepts the advice of the Australian Department of Foreign Affairs and Trade that overall levels of generalised violence are lower in Punjab relative to the rest of Pakistan and that, as put to the [appellant], many Shias have migrated and settled in Islamabad where they are comparatively safe. The Tribunal accepts that there is some level of risk to the [appellant] in the context of the sort of terrorist attacks in the twin cities of Islamabad and Rawalpindi referred to in the Department's travel advice. However the Tribunal does not accept on the evidence before it that there are particular factors which will increase the risk of the [appellant] being harmed in the context of these sorts of terrorist attacks. In other words, the risk to him is the same as that to any other inhabitant of these cities. Given the level at which terrorist attacks occur in the twin cities of Islamabad and Rawalpindi and given that the Tribunal does not accept on the evidence before the Tribunal that there are particular factors which will increase the risk of the [appellant] being harmed in the context of these sorts of terrorist attacks, the Tribunal considers that the risk to him in the context of these sorts of terrorist attacks in Islamabad is remote. The Tribunal does not accept on the evidence before the Tribunal that the level of generalised violence in Islamabad makes it unreasonable for the [appellant] to relocate to that city.

77.    For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the [appellant]'s circumstances, for him to relocate to Islamabad where, as the Tribunal has found above, there is, objectively, no appreciable risk of the occurrence of the persecution which he fears. The Tribunal has considered the totality of the [appellant]'s circumstances as a male Pashtun Shia Muslim from Parachinar in the Kurram Agency who belongs to the Bangash tribe, and who will be returning to Pakistan having spent time in a Western country, namely Australia. However, even taking into account the cumulative effect of these circumstances, the Tribunal does not accept that there is a real chance that the [appellant] will be persecuted for one or more of the Convention reasons if he returns to Pakistan. The Tribunal does not accept on the evidence before it that the [appellant] has a well-founded fear of being persecuted for one or more of the Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.

16    Somewhat unusually, counsel for the appellant has also relied upon the transcript of the hearing in the Tribunal, both before this Court and before the primary judge. There is discussion in that transcript which reveals that the Tribunal was concerned to establish that medical care was available for prosthetics which the appellant might need in Pakistan, particularly if he was to relocate. Nothing in that series of exchanges, or anywhere else in the transcript reveals any discussion of whether or not the medical care would be of a lower standard, particularly due to the appellant’s religion. This may have been, as counsel for the Minister points out, simply because no possibly helpful answer could have been given by the appellant on that topic. However, it is also apparent that the appellant’s religion was in fact not mentioned at any point in this discussion, nor was his specific claim that he suffered lower quality medical treatment in the past because of his religion. While it would not be customary to refer to the transcript, counsel for the appellant makes the point that the transcript tends to reveal the fact that the Tribunal probably did not understand or appreciate the basis of this particular aspect of the appellant’s religion/medical claim, particularly in circumstances where the grounds of claim are simply repeated in the judgment verbatim and there is no express discussion in the judgment of this topic.

17    The appellant argues that while it is reasonably clear that the Tribunal did consider the issue of the general medical care of the appellant, it did so only in the context of the reasonableness of his relocation, not in the context in which it was expressly raised, namely, persecution on the basis of the appellant’s religion.

18    While it is a valid observation that this topic was not explored in the transcript of the Tribunal proceedings, clearly that is not the end to the matter, as many topics may be exchanged or not exchanged in discussion at a hearing which do not, in due course, bear upon the final process of reasoning. The appellant accepts this, but maintains that an examination of the transcript, taken together with the other factors mentioned and when viewed in the entirety of the context, suggests that the Tribunal did not understand and address the religion/medical claim.

19    The appellant’s main point is that this misunderstanding is confirmed when reviewing the structure of the Tribunal’s decision, noting that:

(a)    the Tribunal accepted that the appellant would be identified throughout Pakistan as a Shia from the identity documents (at [48]); and

(b)    the Tribunal accepted that the appellant did have a well-founded fear of persecution in Pakistan due to his race or religion in the Kurram Agency region of Pakistan as well as neighbouring regions, such as FATA, Hangu, Peshawar or Kayber Pakhtunkhwa Province, amongst others (at [58]).

20    Those findings, the appellant argues, were made in the context of the Tribunal’s consideration of country information about the high levels of sectarian violence in the area. The Tribunal did not therefore evaluate the appellant’s religion/medical claim.

21    Following the findings about sectarian violence, the Tribunal then considered whether the appellant had a well-founded fear of persecution outside the region in which he resided. In doing so, the Tribunal considered the possibility of sectarian violence outside that region. It did not, while carefully conducting that enquiry, specifically look at the appellant’s religion/medical claim in relation to medical care. Indeed, following consideration and dismissal of the risk of such violence outside of the appellant’s home region, the Tribunal concluded (at [71]) that ‘[f]or the reasons given above the Tribunal does not accept that, if the [appellant] returns to Pakistan now or in the reasonably foreseeable future and relocates to Islamabad, there is a real chance that he will be persecuted for reasons … of his religion (Shia)’.

22    That was the completion of the examination of the issues by the Tribunal on the topic of persecution on religious grounds. After that passage (at [71] of the Tribunal’s reasons), the Tribunal then went on to consider (at [72]-[77]) whether it was reasonable for the appellant to relocate. It was only in that context that the appellant’s medical treatment was considered (at [73]). That paragraph contains the only reference to the appellant’s medical treatment in the Tribunal’s decision. It does not refer to his religion. Consequently, the finding is not a direct consideration of the appellant’s religion/medical claim.

BEFORE THE FEDERAL CIRCUIT COURT

23    The Federal Circuit Court in AHX15 v Minister for Immigration & Anor [2015] FCCA 1312 considered that the appellant’s religion/medical claim had been considered and disposed of in a combination of the content of [71] and the last sentence of [73] of the Tribunal’s reasons when read together, his Honour noting (at [12]-[13] and [15]):

12.    The finding in para.71 [of the Tribunal’s reasons] clearly subsumes the [appellant]’s fears in respect of his Shia religion, and, in that regard, his fear, because of his Shia religion, that he would not receive proper treatment. It was not necessary for the Tribunal in this case to set out in detail further reference to the [appellant]’s fear that he would not be provided with proper treatment because he was a Shia Muslim. Counsel for the [appellant] sought to argue that the structure and text of para.71, with the words “for the reasons given above”, meant that no regard could be had to what was said by the Tribunal informing para.71 with what was said in para.73.

13.    It cannot be doubted, in light of para.73, that the Tribunal was highly alive to the issue of whether the [appellant] could receive proper treatment. The reference to “the appropriate treatment and maintenance for his prosthetic” is clearly a reference subsuming the issue raised by the [appellant] in respect of his fear. Just as the Tribunal reasons must be read as a whole, so too they must not be read with a keen eye for error, and the word “above” in the first line of para.71 does not, in my opinion, excise para.73 from the context of informing what the Tribunal has said in para.71.

…

15.    The compelling inference in this case, in light of both the reference earlier to the claim and in light of the content of para.73, is that this is not a case where any component integer that [sic] was overlooked by the Tribunal. I am satisfied that the findings in para.71 subsumed the claim that he would not receive proper treatment because he was a Shia Muslim. In those circumstances, there is no substance in relation to paragraph 1(a) of the grounds of the application.

before this court

24    The appellant accepts, as he must, that the Court must avoid going through the Tribunal’s reasons with an eye keenly attuned to finding error: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. On the other hand, it is important not to contort what the Tribunal actually said in order to uphold the Tribunal’s decision. As noted by Allsop J (as the Chief Justice then was) in Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 (at [14]-[15]), while a beneficial construction should be given to the way tribunals express themselves and a common sense and realistic approach should be taken to understanding the reasons as a whole to see what the Tribunal was saying, it does not follow that a beneficial construction should or could result in a situation where words are construed as meaning something other than what they, in a plain and common sense way, must be intended to mean. Rather, it is the ‘combing through of the reasons with a finely attuned antenna for error that is impermissible’. Justice Stone also observed in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (at [26]):

The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.

25    The question in the present case is whether the Tribunal’s reasons, expressed in its own words, would allow the incorporation of what was said at the end of [73] of the Tribunal’s reasons into the finding reached in [71]. The primary judge was of the view that the appellant was seeking to ‘bifurcate’ the reasons up to [71] and the reasons from [72]-[77].

26    The appellant argues, however, that, when read in a common sense way, the Tribunal made a final finding regarding persecution at [71] and then its discussion from [72] onwards, in particular [73], was not intended to pertain to or inform its findings at [71]. Nor was such an argument put to the primary judge by the Minister as to the effect of the reasons. Before the primary judge, the Minister’s argument was that [73] itself dealt with and disposed the appellant’s religion/medical claim.

27    The Minister argues that the integer was properly considered by extracting the appellant’s Statement of Claims, which included the accepted claim that following a mine explosion in July 2010 the appellant lost a foot and he did not receive proper treatment because he was a Shia Muslim and that, should he return to Pakistan, he would continue not to receive proper treatment for the injury for the same reasons. The Minister argues that the primary judge was correct in reasoning that the finding at [71] should be read in light of the Tribunal’s earlier reference to the appellant’s religion/medical claim, together with what was said in [73]. The Minister also argues that it was clear that the finding at [71] subsumed the appellant’s fears due to his religion, including his fear that he would not receive proper medical treatment.

28    Both the appellant and the Minister rely upon a passage set out in the judgment of French, Sackville and Heely JJ in Applicant WAEE (at [47]):

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

29    The Minister contends that, on reading the reasons of the Tribunal as a whole, it was not appropriate to excise the Tribunal’s findings in paragraphs up to and including [71] from what was said in the paragraphs which followed. The Minister argues that taking the Tribunal's reasons as a whole, it is clear that the Tribunal was, as the primary judge found (at [13]), ‘highly alive’ to the issue of whether the appellant would receive a worse quality of medical treatment in Pakistan arising from his religion. At [19] of its decision, the Tribunal recorded the appellant's claims concerning this issue. At [73] it did not accept, on the basis of relevant country information, that the appellant would not receive the appropriate treatment and assistance for his injury in Pakistan generally. Contrary to the appellant's assertion, the Tribunal did not limit its inquiry to whether the type of treatment required was available in Pakistan and fail to consider what standard of care the applicant would actually receive. Nor can it be said that his Honour failed to consider the 'dual nature' of the appellant's claim, ie that it was relevant to his fear of persecution, as well as to the practicality of relocation: see AXH15 [2015] FCCA 1312 (at [11]-[12]); cf particular (c) of the particulars to ground 1 of the notice of appeal in this Court.

30    The Minister submits that having regard to these matters, his Honour's conclusion was clearly correct. It was therefore unnecessary for the Tribunal to make a specific finding on whether the appellant would receive a worse treatment because of his religion in circumstances as that issue was clearly subsumed in findings of greater generality.

CONSIDERATION

31    I am particularly mindful of the need not to be overly critical and to search for error in the Tribunal’s decision. Indeed, the Tribunal has been fair and conscientious in its treatment of the appellant’s claims, but that does not mean that it has not inadvertently misunderstood or overlooked one of those claims.

32    In my view, it is clear on a commonsense approach to the Tribunal’s reasons that prior to [71], from [49]-[60] the Tribunal was considering whether the appellant’s claims that he feared persecution for various reasons were well-founded. It found that those fears were well-founded in his home province. This meant that the Tribunal then had to consider whether such fears were well-founded outside that location, that is, whether he could relocate. As the Tribunal said (at [62]):

The issue of whether it would be reasonable to expect and applicant to relocate within Pakistan only arises if the circumstances indicate that there is a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised, rather than nationwide.

33    It follows that the Tribunal then considered various integers of the appellant’s claims to fear persecution outside his home region (from [63]-[70]) and concluded (at [71]) that they were not well-founded were he to relocate. It is in that context that the Tribunal goes on to say (at [71]) ‘[f]or the reasons given above …’, and makes a series of findings. Nowhere in any of that consideration (from [49]-[71]), which is intended to be sequential, did the Tribunal refer to the appellant’s religion/medical claim.

34    There is, at least, an impression that this aspect of the claim may have been overlooked on the basis of that examination of the reasons alone. The impression is, as the appellant argued, further supported by the fact that the topic never arose in the course of the exchanges at the hearing. Taken alone, one would certainly not be referring to the transcript to support a claim of this nature, but in the context of the reasoning, doing so does add to the impression that the religion/medical claim was overlooked. The primary judge was apparently unpersuaded by the content of the transcript and did not refer to it.

35    The sequential nature of the reasoning accords with a commonsense interpretation of the reasons. Following the finding (at [71]), having concluded the appellant did not have a well-founded fear of persecution were he to relocate, the Tribunal then proceeded to consider whether it was reasonable in the sense of practical for the appellant to relocate pursuant to SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (at [24]). The consideration from [72] onwards only arose once the Tribunal had considered and concluded that the appellant did not have a well-founded fear of persecution outside of his own region. That topic had been completed (at [71]) by the sentence which reads:

The Tribunal finds that, if the applicant relocates to Islamabad, there will be no appreciable risk of the occurrence of the persecution which he claims to fear if he returns to Pakistan.

Then at [72], which commences by stating: ‘[i]f it is also necessary to address …’.

36    I accept the submissions for the appellant that it does not make sense to read the Tribunal’s findings from [72] onwards back into [71] because the Tribunal treated the practicality of relocation as a separate and distinct issue which only arose once the Tribunal had considered the issue of fear of persecution. Certainly, the Tribunal did not dispose of the appellant’s religion/medical claim in [73]. It is not reasonable to read the Tribunal’s findings made in the context of the particular issue, namely, access to medical care in relation to practicality of relocation as findings in the context of a claim of persecution, when such claims had already and necessarily been dealt with earlier in the reasoning of the Tribunal. This is, as the appellant argues, further reinforced by the fact that in [72] and [74] the Tribunal considered the appellant’s access to medical care in the explicit context of his ability to find work were he to relocate. This further removes its findings from [72]-[74] from the context relevant to the appellant’s religion/medical claim.

37    I consider the appellant is correct in his contention that the last sentence of [73] is not to be considered a generalised finding which intended to deal with, or had the effect of dealing with, the appellant’s religion/medical claim. The final sentence of [73] certainly does not directly address the religion/medical claim as articulated by the appellant.

38    In SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 Justice Perry said (at [15]-[17]):

15    Secondly, the requirement under s 414 of the Act to “review” the decision requires that the Tribunal consider the applicant’s claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the [Migration Act 1958 (Cth)] for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

16    Thirdly, as I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] in determining whether a claim has been made attracting the obligation to consider it:

A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the [Migration Act 1958 (Cth)]: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]).

(Abbreviations omitted.)

17    In the fourth place, the requirement to consider a claim or integers of a claim made by an applicant requires the application of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) at 559 [38], “[t]hat task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant...”.]

39    Her Honour held (at [28]) that SZSZW was not a case where the findings on a particular matter had been subsumed into findings of greater generality because the Tribunal’s reasons made no mention at all of the particular claim.

40    The Minister points to the fact that the claim is included in the primary judgment. Considering the reasons themselves and, specifically, the completion of one topic before moving to another topic, the nature of the exchanges in the transcript, and, most importantly, the lack of specific consideration of the appellant’s religion/medical claim as a discrete claim, I do not consider this a case where the specific can properly be subsumed within the general.

41    That being so, in my view, the appellant should succeed. The appeal will be allowed with costs. I make the following orders:

1.    The appeal be allowed.

2.    The First Respondent pay the Appellant's costs of the appeal, to be taxed if not agreed.

3.    The Appellant file and serve a minute of orders of relief sought within 7 days.

Associate:

Dated:    5 November 2015