FEDERAL COURT OF AUSTRALIA

BXC15 v Minister for Immigration and Border Protection [2017] FCA 682

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal be refused.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

BACKGROUND

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed a decision of the delegate of the first respondent (“the Minister”) not to grant the appellant a protection (class XA) visa.

2    The appellant is a citizen of Pakistan. Prior to coming to Australia the appellant had been living with his parents and siblings in Parachinar in Kurram Agency, in the North-West Territories of Pakistan. The appellant left Pakistan to come to Australia in late February 2012. He is a Shia Muslim and ethnically Turi. The appellant claimed refugee status on several bases including because of his Shia Muslim religion, Turi ethnicity, his imputed political opinion and opposition of the Taliban on account of being Shia Turi and his origins from Kurram Agency, a region with longstanding violent conflict with the Taliban. The Minster’s delegate accepted that the appellant faced a real chance of serious harm in his home area because of his Shia faith and Turi ethnicity but found that the likelihood of the appellant being targeted by extremist elements in Islamabad or Lahore was not more than remote and it was reasonable for the appellant to relocate there to avoid harm. The Tribunal also accepted that there was a real chance that the appellant would face serious harm upon his return to Parachinar, in particular because he is a Pashtun Shia Muslim and as a Turi Shia from Parachinar, the appellant will be imputed with a political opinion that he is opposed to the Taliban and other Sunni extremists. However, the Tribunal rejected the appellant’s claims that he could not safely relocate to Lahore because he would be targeted for harm on account of both his ethnicity and religion. The Tribunal was satisfied that the chance of the appellant being harmed in an act of targeted sectarian violence or generalised violence in Lahore was remote and concluded that the appellant could safely relocate to Lahore. In reaching that conclusion, the Tribunal had regard to country information, including two 2015 reports from the Department of Foreign Affairs and Trade (“DFAT”). The Tribunal also had regard to the submission of the appellant’s representative that the Tribunal should follow a January 2015 Tribunal decision which accepted that Turi Shias are “a special case” and unable to relocate safely anywhere in Pakistan. The Tribunal noted that the 2015 Tribunal decision, and other Tribunal decisions to which reference was also made, were not binding on it and the country information the Tribunal considered supported its finding that the appellant could safely relocate to Lahore.

3    The appellant sought judicial review of the Tribunal’s decision. The ground advanced was that the Tribunal had constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing lawfully to consider (including by giving proper, genuine and realistic consideration to the merits of) a claim made by the appellant or, alternatively, critical evidence provided by the appellant in support of a claim. The FCC held that the Tribunal had not fallen into legal error as alleged.

leave to appeal

4    On appeal, the appellant sought to rely on different grounds to the grounds that were advanced below, namely that:

(a)    the primary judge erred in failing to find that the Tribunal decision was affected by jurisdictional error caused by the Tribunal decision not being based in proper consideration of the evidence going to a matter fundamental to the decision on this claim for protection: the conditions that would confront the appellant if he internally relocated within Pakistan, in particular to Lahore; and

(b)    the primary judge erred in failing to find that the Tribunal decision was affected by jurisdictional error caused by the Tribunal decision not being based in proper consideration of the evidence going to a matter fundamental to the decision on this claim for complementary protection: the conditions that would confront the appellant if he internally relocated within Pakistan, in particular to Lahore.

5    Both grounds were particularised by contentions that the Tribunal: (1) erred in failing to refer to four particular pieces of country information (“Ground 1.1”); and/or (2) erred in failing to give proper, genuine and realistic consideration to certain other evidence (“Ground 1.2”).

6    Counsel for the Minister appeared to accept that Ground 1.2 is, in substance, a re-cast of a ground raised below but Ground 1.1 raised an entirely new point. To the extent that the grounds are new, the appellant requires the leave of the Court to advance the new grounds. In form, neither of the proposed new grounds raises any appellable error as there can be no error in the primary judge not finding in favour of the appellant on grounds that were not raised, or were put differently, before the primary judge. However, I propose to treat the proposed new grounds as if they omit the words “the primary judge erred in failing to find that”, and deal with the substance of the points raised by the proposed grounds in considering whether leave to amend should be granted.

7    It was not contended that the Minister would be prejudiced if leave to amend to raise the new grounds was granted, but the Minister did oppose leave to amend the notice of appeal on the basis that:

(a)    each proposed ground lacks “clear merit”; and

(b)    no explanation was provided for why the new grounds were not raised in the FCC application for judicial review.

8    As the authorities show, the guiding principle is that leave to argue a new ground should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (“VUAX v Minister for Immigration and Multicultural and Indigenous Affairs”), at [46]; Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [90]. 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. Generally, leave should be refused in the absence of an adequate explanation for the failure to raise the proposed appeal grounds below, and where the proposed new grounds are of doubtful merit. If a proposed ground has no merit there is no justification for permitting it to be raised for the first time on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs at [48].

Ground 1.1: failure to refer to relevant evidence

9    The appellant’s proposed grounds are related and rely on the proposition that there were four pieces of country information which the Tribunal was obliged to, but did not, consider. The four pieces of country information were:

(a)    the US Department of State Report on Religious Freedom in Pakistan 2013 (“2013 US Report”);

(b)    RRT Country Advice of 27 May 2011 (“RRT Country Advice”);

(c)    an article in Newsweek on 16 June 2014 (“Newsweek article”); and

(d)    an Al Jazeera news article on 19 February 2015 (“Al Jazeera article”).

10    It was argued that this country information was relevant to the appellant’s claim that he could not relocate safely to Lahore to avoid the risk of harm in his home area. The Tribunal had concluded that the risk of harm to the appellant if he relocated to Lahore was remote based in part on the 2015 DFAT reports. At [62] the Tribunal stated:

DFAT assess in general (other than in some areas, like the [appellant’s] region), there is a low risk of sectarian violence for Shias by militant groups and attacks against Ashura processions pose the greatest risk for most Shias. However, given the size and yearly frequency, the violence is mitigated by significant efforts of authorities to processional routes and protection, DFAT assess the overall risk to be low. DFAT further assesses the overall levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan and sectarian violence has declined since the 1990s.

(footnotes omitted)

11    It was submitted that it was not to the point that sectarian violence against Shias in Punjab had declined but, rather, that there were still high levels of sectarian violence against Shias across Pakistan, including in Punjab. This was said to be evidenced by the 2013 US Report which reported on the sectarian violence against Shias across Pakistan in 2013, and the Al Jazeera article had reported on fatal attacks on Shia Mosques in Punjab in January and February 2015. The RRT Country Advice and the Newsweek article were said to provide contrary evidence to the 2015 DFAT reports relied on by the Tribunal in reaching the conclusion that Lahore was not a place where extremist activity would be likely to impact on Shia Muslims. The RRT Country Advice referred to extremist Sunni groups continuing to “stage targeted attacks on Shia communities across Pakistan, including Lahore…”. Under the heading “Is there a place in Pakistan where Shia Muslims live in large concentrations and are relatively safe from targeting by these extremist groups?”, the report stated:

Outside of Kurram and Khyber-Pakhtunkhwa, attacks on Shi’ite communities appear to primarily take place in large urban centres, including Karachi, Lahore, Peshawar, Faisalabad and Quetta.

The Newsweek article had reported that the Taliban had made recent threats to attack Islamabad and Lahore.

12    No error is revealed by the Tribunal’s non-consideration of these materials. The Tribunal’s reasons disclose that it understood and undertook the task of assessing, in a real and active way, what the situation would be for the appellant in the future if he was returned to Pakistan. The reasons show that the Tribunal considered and evaluated the latest country information to form the state of satisfaction that the chance of the appellant being harmed in Lahore for an act of targeted sectarian or generalised violence was remote. The four pieces of country information all pre-dated the 2015 DFAT reports on which the Tribunal largely based its findings. Further, the Al Jazeera article reported on incidents in Islamabad and not Lahore and so was not material to the assessment of the risk of harm to the appellant if he relocated to Lahore.

13    The material to which the Tribunal had regard included country information that in 2015, 183 Shias were killed and 190 people were injured. However, none of these incidents were in Lahore. The Tribunal also referred to and gave weight to South Asian Terrorism Portal statistics comparing fatalities and major terrorism or sectarian incidents over the years in various parts of Pakistan, stating that it was evident from those statistics that attacks on Shias had significantly reduced and were very sporadic in Lahore. The Tribunal noted that while there were a few sectarian attacks in 2011 in Lahore this had declined significantly in recent years, with two sectarian attacks in 2013 and one in 2012. While there had been fatal incidents in Lahore in 2015, they did not involve Shias. The Tribunal’s reasons show a process of weighing the evidence and indicating a preference for some country information over other country information in considering the appellant’s claims. The Tribunal was clearly aware of the appellant’s claim and rejected the appellant’s objection to relocation having regard to the more recent country information. There is no merit in this ground

Ground 1.2 failure to give proper, genuine and realistic consideration

14    The appellant’s proposed grounds also raise the claim that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the appellant’s case, in failing properly to consider:

(a)    the RRT background paper – Pakistan – Shia Muslims, 25 March 2014 (“RRT background paper”);

(b)    Immigration and Review Board of Canada (IRB) paper of January 2014 (“IRB paper”); and

(c)    other RRT decisions on relocation of Turi Shia applicants.

15    Each of these materials was referred to by the Tribunal but it was submitted did not receive proper analysis. It was submitted that administrative decisions taken without “proper, genuine and realistic consideration to the merits of the case” constitutes jurisdictional error.

16    It was submitted that the RRT background paper provided information on the Turi being unique, as a Pashtun tribe that was exclusively Shia but the Tribunal made no reference to this aspect of the RRT background paper at all. It was submitted that the information was highly relevant to the fact that the position of the appellant is not merely that of a Shia in Pakistan, but rather that he is a member of a special subcategory of Shia, being Turi, who have been in a long-running feud with the Taliban.

17    The IRB paper contained a variety of views on the issue of treatment of Shias, including in Lahore, which the Tribunal set out. The paper noted that: (1) the Middle-East Media Research Institute thought the situation for Shias in Lahore was “extremely serious”, noting “numerous killings” of Shia in Lahore and Multan; (2) the Jinnah Institute reported that Lahore was affected by a “new level of extremism in Punjab province”; (3) the Asian Human Rights Commission said that the situation in Lahore was “no different” than other areas of Pakistan in terms of the lack of safety and the protection for Shia; (4) the Human Rights Commission of Pakistan thought that the problem for Shia in Lahore was not severe; and (5) an anonymous PhD candidate expressed the view that there may be sectarian tensions in Lahore, but that “sectarian violence and extremism is not part of the beliefs of mainstream society in [Lahore]”. It was submitted that it was insufficient for the Tribunal merely to refer to these divergent views, but should have, but failed to, analyse the state of affairs for a Turi Shia in Lahore from these divergent views. It was submitted that an obvious starting point would have been to note the different vantage points of the reporting bodies or persons.

18    It was also argued that whilst the Tribunal asserted that it had regard to other RRT decisions, in considering the January 2015 RRT decision it failed to take into account the information detailed in the RRT background paper, which caused the Tribunal in that case to “proceed on the basis that Turi Shia are a special case”. It was submitted that the complete failure to refer to the portions of the RRT background paper which dealt with the special case of the Turi, and the difficulties in relocating made it apparent that the Tribunal did not give proper, genuine and realistic consideration to the merits of the appellant’s case.

19    Jurisdictional error may be constituted by a failure to give proper, genuine and realistic consideration to the merits of the appellant’s case: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, 174 at [26]; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, (2011) 180 LGERA 99, at [44]; SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146 at [24] and [29]. However I do not accept that such jurisdictional error has been shown in this case.

20    This ground was raised before the FCC, albeit in somewhat different terms as a failure to deal with one of the appellant’s claims, namely that the appellant was at greater risk of harm from the Taliban throughout Pakistan on the basis that he was a member of the Turi tribe from Parachinar.

21    At paragraph [69] of the Tribunal’s reasons, the Tribunal stated that it had regard to the submissions about Turis being a special case in other RRT decisions and being unable to relocate. The Tribunal correctly stated that it was not bound by the earlier Tribunal decisions and based its finding on the country information before it. No jurisdictional error is disclosed by the fact that it departed from previous decisions of the Tribunal where, as the Tribunal held, on the evidence before it the Tribunal was satisfied that there was not a real chance of the appellant suffering persecution in Lahore. Furthermore, the FCC was correct to hold for the reasons given that the Tribunal was clearly aware of the appellant’s claim that he was at greater risk of harm in Lahore than other Shias because he was from the Turi tribe. The FCC reasoned at [14]–[15]:

Particular (a) makes the claim that the Tribunal failed to consider the [appellant’s] claim on the distinctive basis that he was from the Turi tribe, rather than simply as a Shia. This claim cannot be sustained given the extensive reasons that the Tribunal sets out, discussing the distinctiveness of the [appellant] of a Turi Shia from Parachinar, as quoted above. To the extent that the argument is developed that the distinction between Turi Shia and Shia generally was lost by the time that the Tribunal considered the possibility of persecution in Lahore, a fair reading of the decision shows that this was only because there was no evidence specifically dealing with Turi Shia in Lahore, only Shia generally.

On the evidence before the Tribunal, there were no attacks on Shia generally in the last two years in Lahore (see paragraphs [86] and [57]). The Tribunal did have evidence that Turi Shia’s (sic) are not discriminated against in government positions, police, military or the private sector in Lahore (see paragraph [83].) In light of the evidence before the Tribunal that Shia’s generally were safe in Lahore, and that there was no evidence that Turi’s were treated differently, it does not appear to me that the Tribunal’s reasons should be read as having failed to consider the applicant’s claim as a member of the Turi tribe, distinctly from a general claim based on being a Shia in Lahore.

The same reasoning is apt to hold that it cannot be said that the Tribunal fell into the type of error identified in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97]–[99] and [111] or Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431, particularly at [50]. This second part of ground 1 cannot succeed.

Ground 2

22    As the appellant’s claim for complementary protection relied on the same matters, proposed ground 2 need not be considered separately.

CONCLUSION

23    It follows that an appeal based on the proposed new grounds would not succeed. Furthermore, no material was provided to explain why the proposed new grounds were not raised below but it can be inferred that the explanation was a change of counsel on appeal. Such an explanation does not make it expedient in the interests of justice for granting leave. As Reeves J explained in AYJ15 v Minister for Immigration and Border Protection [2016] FCA 863 at [17]–[18] “[i]t moves the arena for judicial review of the Tribunal’s decisions from the Federal Circuit Court to this Court”, perverting the role of this Court as an appellate court reviewing error in the FCC: see also WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106; (2004) 204 ALR 624, 629 at [19] per French J; Prodduturi v Minister for Immigration and Border Protection [2014] FCA 624; (2014) 142 ALD 550, 555 at [28] per Perram J.

24    Accordingly leave to amend the notice of appeal is refused. As no other grounds were advanced, the appeal should be dismissed.

Associate:

Dated:    16 June 2017