FEDERAL COURT OF AUSTRALIA

AIE15 v Minister for Immigration and Border Protection [2018] FCA 610

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The first respondent is to pay the appellant’s costs of the appeal as agreed or assessed.

3.    The orders made by the Federal Circuit Court of Australia on 15 March 2016 be set aside and in their place:

(a)    order absolute in the first instance for a writ of certiorari to remove into the Court for the purpose of its being quashed, the decision of the Tribunal dated 23 February 2015 to affirm a decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant;

(b)    order absolute in the first instance for a writ and directed to the Tribunal commanding the Tribunal to review according to law the decision of a delegate of the Minister to refuse to grant a protection visa to the applicant;

(c)    the first respondent is to pay the applicant’s costs.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court (FCC) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal dismissed an application for review of a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a protection visa. The Tribunal accepted that the appellant had a well-founded fear of persecution if he returned to his home region in his country of nationality, Pakistan, because he is a Pashtun Shia. Nonetheless the Tribunal dismissed his application on the ground that it was not satisfied that there was a real chance that the appellant would suffer serious harm if he relocated to Islamabad or Rawalpindi in Pakistan by reason of his religion or for any other reason that would attract protection under the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, as amended by the 1967 Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (Refugees Convention).

2    The applicant contends that the FCC erred in failing to find that the Tribunal had fallen into jurisdictional error in the following respects:

(1)    in failing to consider whether the appellant had a well-founded fear of persecution in the proposed areas of relocation within Pakistan in the reasonably foreseeable future, and considering only whether such a fear existed by reference to the past and the situation upon the appellant’s immediate return;

(2)    in failing to consider the implications of its findings that attacks in Pakistan were increasing, and that there had been a recent spate of attacks in the proposed area of relocation, in assessing the risk of persecution faced by the appellant upon his return or in the reasonably foreseeable future;

(3)    in failing to take into account a relevant consideration, namely, the extract from the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan dated 14 May 2012 (UNHCR Eligibility Guidelines) relied upon by the appellant’s representatives in written submissions to the Tribunal dated 16 December 2014 at paragraph 27.

3    For the reasons that follow, the appeal must be allowed on Grounds 1 and 2. In the circumstances, it is unnecessary to consider Ground 3.

4    Finally, I note that after the hearing, this matter was identified by the Minister as potentially affected by the Full Court’s decision in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (Singh) holding that the Tribunal may be required to disclose the existence of a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) (Act) to an applicant as a matter of procedural fairness. The matter was also subsequently identified as potentially affected by the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MZAFZ). Accordingly, and with the consent of the parties, the delivery of judgment on this appeal was deferred pending the determination of the application for special leave to appeal to the High Court of Australia in Singh and a series of “test” cases before the Full Court of the Federal Court which considered the decision in Singh and MZAFZ. Following the determination of these appeals, the appellant did not seek to make any amendments to the notice of appeal or to raise any further issue, and the parties were agreed that the matter should proceed to judgment.

2.    BACKGROUND

2.1    The application for a protection visa and the delegate’s decision

5    The appellant arrived in Australia as an Irregular Maritime Arrival in February 2012.

6    The grounds on which the appellant claimed to be a refugee can be summarised as follows.

(1)    He is a Shia Muslim from Pakistan.

(2)    The situation in his region had deteriorated since 2007, with Shia Muslims being targeted by reason of their religion.

(3)    In 2008, his cousin was kidnapped and murdered with a note left on his body warning Shia Muslims against supporting police and military operations against the Taliban.

(4)    His cousin’s death was reported in the local newspaper but only received a small mention because of the frequency of such killings.

(5)    In late 2008, a bomb blast in a bazaar seriously injured another of the appellant’s cousins.

(6)    The situation for Shia Muslims in his region and Pakistan generally had become really bad.

(7)    The part of his family’s farm which generated most of their income was surrounded by large mountains on the Afghanistan side of the border. These mountains were used by the Taliban to launch attacks against Shia Muslims, the police, and the military. The appellant ceased work on the family farm in late 2010 because of the attacks.

(8)    As a consequence of these matters, the applicant left Pakistan. He had to travel into Afghanistan to avoid road blocks set by the Taliban (where he was also in danger because the Taliban in Afghanistan look for people who are fleeing from his home region).

(9)    He could not relocate within Pakistan as he was a Shia Muslim who took part in the Ashura festival, and bore scarring as a result. The Taliban check for such scars and he would readily be identified by them as a Shia Muslim. He also did not have family elsewhere in Pakistan, lacked a support network, and had limited skills. The unemployment rate was also very high.

7    On 9 August 2012 the Minister’s delegate refused to grant the appellant a protection visa.

2.2    The Tribunal’s decision

8    On 23 February 2015, the Tribunal on review (reconstituted after an earlier decision was quashed by the FCC) affirmed the delegate’s decision to refuse to grant the appellant a protection visa. The issues identified by the Tribunal were: whether the applicant has a well-founded fear of persecution in Pakistan for a reason set out in the Refugees Convention so as to satisfy the criteria in s 36(2)(a) of the Act; and, if not, whether Australia owes complementary protection obligations under s 36(2)(aa) because there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk that he will suffer significant harm (Tribunal reasons at [5]). The Tribunal dealt with the Refugees Convention issue first.

9    The Tribunal accepted that the appellant was a credible witness, and that the Taliban and its associated groups have waged a campaign of violence against Shias throughout Pakistan consistent with the appellant’s claims (Tribunal reasons at [21]). It accepted the appellant’s claims with respect to the attacks on his cousins and considered that his claims “are consistent with the independent evidence indicating that since 2009 the fighting had claimed almost 1,500 lives and injured thousands more through targeted attacks and bomb blasts in Shia public areas, at Shia mosques and during Shia religious festivals” (Tribunal reasons at [21]). It concluded that the appellant faced a real chance of persecution for a Refugees Convention reason “now or in the reasonably foreseeable future” if he returned to his home region in Pakistan (Tribunal reasons at [23]). The Tribunal found that this risk was occasioned because the appellant is a Pashtun Shia, who faces continuing attacks against Shias in his home region, and because of the failure by State authorities in that region to offer adequate protection (ibid).

10    The Tribunal then turned to consider whether the appellant could relocate to another part of Pakistan. When considering this issue, the Tribunal stated that it had regard to the appellant’s evidence, the submissions provided by his representative, and evidence from the Department of Foreign Affairs (DFAT) and UNHCR Refugees Guidelines (which included extracts from the UNHCR Eligibility Guidelines) (Tribunal reasons at [25]). The appellant claimed that he was unable to live safely anywhere in Pakistan and that there is a real chance he will suffer serious harm. As a consequence, he claimed to fear persecution for a Refugees Convention reason wherever he resides in Pakistan (Tribunal reasons at [26]).

11    Whilst the Department and previously constituted Tribunal had focused on the possibility of the appellant relocating to Karachi, the Tribunal focused at the hearing on whether he could relocate to Islamabad or Rawalpindi or, to a lesser extent, Lahore (Tribunal reasons at [26]). The previously constituted Tribunal had found that relocation was not reasonable for a Shia Muslim due to the level of violence against Shias in Pakistan (Tribunal reasons at [33]). The appellant’s representative submitted that this finding was directly relevant to the second Tribunal’s consideration of the relocation issue.

12    First, the Tribunal found that it was not satisfied that there is a real chance that the appellant would suffer serious harm if he relocated to Islamabad or Rawalpindi by reason of his Shia religion. In so finding, the Tribunal accepted that:

35. …like elsewhere in Pakistan, there continue to be specific attacks against Shia mosques, shrines and gatherings of Shias in Rawalpindi and Islamabad. The Tribunal also accepts that there remains a risk of harm for Shias throughout Pakistan, including cities such as Islamabad and Rawalpindi and there is evidence indicating that the Taliban, Lashkar-e-Jhangvi and other extremist groups have based themselves not only in the Northwestern areas but also in large urban areas.…

13    The Tribunal then found that:

36. The independent evidence before the Tribunal, discussed with the applicant during the hearing, indicates that the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence, particularly outside of FATA, Khyber Pakhtunkwha and Balochistan… The Tribunal accepts that sectarian violence has contributed to hundreds of deaths in Pakistan each year and Shias have been targeted throughout Pakistan. The Tribunal also accepts that the fact that some places are safer than other parts of Pakistan does not mean that there is no threat to Shia Muslims in those places. The Tribunal accepts that both Islamabad and Rawalpindi are certainly not free of the violence that has plagued most areas of Pakistan, and also accepts that the frequency of the attacks does appear to be increasing at least in some parts of Pakistan.[1] However, the Tribunal considers that when compared against the size of the Shia population, which accounts for some 40 million people throughout Pakistan and includes large Shia communities in Rawalpindi and Islamabad, that the extent of the attacks are infrequent and account for only a very small number of the overall population of those cities. Some reports also indicate that some 85 per cent of the recorded incidents of terrorist attacks and sectarian violence occurred in Kurram Agency in FATA, Karachi, Quetta and Gilgit. The DFAT Country Information Report on Pakistan describes Punjab, (in which Islamabad and Rawlapindi [sic] are based) as having lower levels of generalised and sectarian violence relative to the rest of Pakistan. The DFAT report also indicates that Punjab is Pakistan's most populous province and Shias are located all over the province, including in places such as Rawalpindi and Islamabad. It has also stated that Shias have migrated and settled in Islamabad where they are relatively safe. The Tribunal accepts that there are evidence of attacks in Rawalpindi and Islamabad, and there appears to have been a spate of such attacks in late 2014 and early 2015, primarily on mosques. However, the frequency of the attacks prior to late 2014 and early 2015 is limited and the most serious attack prior to that time occurred in late 2013, again being an attack on a Shia mosque.

(emphasis added)

14    Before this Court the Minister agreed with the appellant that it was fair to infer from the reference to a “spate” of attacks in Rawalpindi and Islamabad (the increasing attacks finding) that, in the sentence marked [1] above, the Tribunal was referring to Islamabad or Rawalpindi, when it stated that there were places where the frequency of the attacks appears to be increasing, albeit these were not the only places where that was occurring in Pakistan. The Minister submitted that, while awkwardly expressed, the Tribunal responded to the evidence regarding the “spate” of attacks in late 2014 and early 2015, by stating in the final sentence of the passage quoted above that the frequency of attacks before 2014 and early 2015 was “limited”. It was the Minister’s submission that by this the Tribunal meant limited numerically, and that, in so finding, the Tribunal was referring back to the DFAT Country Information Report on Pakistan (DFAT Country Information Report). With respect to that report, the Tribunal noted that it described Punjab in which Islamabad and Rawalpindi are located, as having “lower levels of generalised and sectarian violence relative to the rest of Pakistan.” The DFAT Country Information Report was published in November 2013: see footnote 24 of the Tribunal’s reasons. The Tribunal also relied in making these findings upon a DFAT Thematic Report dated 18 December 2013.

15    The Tribunal continued at [36] of its reasons to find that there was limited evidence indicating that the Taliban or extremist groups are specifically targeting individual Shias, but rather “[a]s indicated above, the attacks in Rawalpindi and Islamabad are largely on mosques and religious processions”. In this regard, the Tribunal accepted that the appellant would be most at risk when attending mosques and participating in religious processions. Specifically, at [40] the Tribunal found that:

The Tribunal has accepted that there have been attacks against Shia religious processions and places where large numbers of Shias are likely to gather in Rawalapindi and Islamabad, and there is evidence that terrorist groups operate throughout Pakistan, including in urban areas, and evidence that the Taliban and its associated groups have a presence in Islamabad in particular. The Tribunal has had regard to the applicant's claims at the hearing that he will have to attend mosques and religious processions and there is a real chance that he will be subject to harm during that time. The Tribunal accepts that where the applicant is most likely at risk because he is a Shia is when he attends religious processions or is at a location where large numbers of Shias gather. However, the attacks that have taken place on those occasions are sporadic, and considered in the context of the size of the Shia population, the Tribunal regards the risk of the applicant suffering serious harm on that ground to be remote. Thus, given the relatively low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant's lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, including Islamabad and Rawalpindi, the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Rawalpindi or Islamabad is remote. The Tribunal is also not satisfied that the applicant will have to modify his religious practise in either of these places in order to avoid the harm he fears …

(emphasis added)

16    Having reached that view, the Tribunal then considered whether it was reasonable, in the sense of practicable, for the appellant to relocate to another part of Pakistan, namely, Islamabad or Rawalpindi.

17    Relevantly, on this issue, the Tribunal found that:

53. The Tribunal accepts that there is generalised violence throughout Pakistan, and that there have been terrorist attacks in Islamabad, in particular. The Tribunal has also accepted, as stated above, that there have been attacks against Shia mosques and other attacks in Islamabad and Rawalpindi. However, DFAT has reported that the levels of generalised violence are lower in Punjab and the terrorist attacks have largely been on government buildings, as well as Shia mosques and Shia religious processions, as stated above. The Tribunal accepts there is some level of risk to the applicant in the context of terrorist attacks in the twin cities of lslamabad and Rawalpindi, as referred to in the DFAT's Travel Advice, which was cited by the representative. The Tribunal also accepts that it will be concerning for the applicant to live in a city which has experienced such attacks, given that there is evidence of bomb blasts, kidnappings, there is a Taliban extremist groups presence in Rawalpindi and Islamabad, and there has been limited action by the authorities to counteract the threat of terrorism. However, as stated above, given the level at which these attacks occur, the Tribunal is satisfied the risk of the applicant being harmed in the context of these attacks is remote. The Tribunal does not accept that the fact that the applicant may be concerned for his safety as a result of such factors is such that he will have to modify his conduct or that it will affect his ability to obtain employment or accommodation in these cities. The Tribunal is not satisfied that such factors make it unreasonable for the applicant to live and work in Rawalpindi or Islamabad.

18    The Tribunal concluded at [55] that:

…there is not a real chance that the applicant will be persecuted, for reasons of his religion, or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in another part of Pakistan, such as Islamabad or Rawalpindi. Accordingly, the Tribunal finds that the applicant does not have a well founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.

19    The Tribunal then considered in the alternative whether Australia owed the applicant complementary protection obligations under s 36(2)(aa) of the Act. Referring back to its findings with respect to the appellant’s Refugees Convention claims, the Tribunal found that for the same reasons there was a real risk that the appellant would suffer significant harm if returned to his home region but that it was reasonable for him to relocate to an area such as Islamabad and Rawalpindi where there was not a real risk of significant harm (Tribunal reasons at [57]-[59]). As such, the Tribunal found that the appellant did not satisfy the complementary protection criterion.

2.3    The decision of the Federal Circuit Court

20    The primary judge dismissed the application for judicial review. Relevantly, with respect to Particular 1 of Ground 3 (which equates to Ground 1 of the notice of appeal), the primary judge found that the approach to the Tribunal’s reasons inherent in this ground “is a nit-picking one which is inconsistent with that required upon judicial review” (primary judge at [10]). In rejecting this ground, the primary judge first considered that the Tribunal’s use of the phrase “now or in the reasonably foreseeable future” on two occasions was “telling”, particularly where the phrase was used in the course of finding at [23] of the Tribunal’s reasons that was a real chance of persecution in the appellant’s home district in Pakistan immediately before consideration of the question of relocation. The second use of the phrase was in the Tribunal’s conclusion as to whether the appellant has a well-founded fear of persecution for Convention reasons (Tribunal reasons at [55]). Secondly, the Tribunal consistently used the future tense in an unconfined way in making findings about what might occur to the appellant on returning to Pakistan. Thirdly, the Tribunal did not simply find that there was an increase in violence in Pakistan but at [36] of its reasons adopted a more nuanced approach based on an analysis of the location, frequency, and nature of the attacks.

21    The primary judge also dismissed Particulars 2 and 3 of Ground 3 (which equate to Ground 2 of the notice of appeal). The primary judge found that the Tribunal dealt with the claim that there was an increase in violence in Pakistan for the reasons already given at [16]-[17] of his reasons: primary judge at [19]-[22].

3.    FAILURE TO CONSIDER “REASONABLY FORESEEABLE FUTURE” AND IMPLICATIONS OF FINDINGS (GROUNDS 1 AND 2)

3.1    The issues

22    Critical to the appellant’s argument on Grounds 1 and 2 of the notice of appeal are the Tribunal’s findings at [36] that the “frequency of the attacks does appear to be increasing at least in some parts of Pakistan” and that “[t]he Tribunal accepts that there are evidence of attacks in Rawalpindi and Islamabad, and there appears to have been a spate of such attacks in late 2014 and early 2015, primarily on mosques”. As earlier mentioned, it was not in issue that the reference to attacks increasing “at least in some parts of Pakistan” included the spate of attacks in Rawalpindi and Islamabad, being the very places to which the Tribunal found that the appellant could safely relocate.

23    By the first ground of appeal, the appellant submits that the FCC ought to have held that the Tribunal assessed only whether the appellant’s fear of persecution was well-founded with reference to the past and the immediate future. In the appellant’s submission, the Tribunal failed to extend its analysis into the reasonably foreseeable future by considering whether the increasing attacks were part of a continuing trend.

24    By the second ground of appeal the appellant alleges that, given the Tribunal’s increasing attacks finding, the FCC ought to have found that the Tribunal then failed to consider the implications of that finding, namely: how the apparent trend of increasing attacks might bear on the question of whether there was a chance of the appellant suffering serious harm in the reasonably foreseeable future.

25    It is convenient to deal with these grounds together given that they are substantially interrelated, as the parties accepted at hearing.

3.2    Relevant principles

26    As to the first ground of appeal, it is not in issue that the Tribunal is required to assess an applicant’s claims to have a well-founded fear of persecution by reference to the reasonably foreseeable future and not merely the immediate future or the present situation: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 (SZGHS) at [2] (Allsop J (as his Honour then was)); Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 (SZQKB) at [41] (Yates J). For example, in SZGHS the appellant relied upon three serious assaults in the past which the Tribunal accepted had occurred and were at least in part motivated by the applicant’s perceived sympathy for Indo-Fijians and his perceived political opinion. However, the Tribunal found that there was no evidence to suggest that there was a real chance of persecution because there were “changed circumstances”, namely, there were “no elections looming” and “a pro-Fijian government… is in power”: SZGHS at [20]. In so finding, Allsop J held that the Tribunal had fallen into error for the following reasons:

28. Critically, however, looking at all of the reasons of the Tribunal, there was a failure to address the reasonably foreseeable future in the context of the claims made. The dealing with the three incidents was based on immediate facts – no elections looming and the character of the present government. This reflected a focus on immediacy which was no real assessment of whether in the future, with elections looming, with the first appellant campaigning for the FLP, he would not face a similar beating for the same reasons, or threats from elements of the Taukei Movement who had already targeted him. The Tribunal’s paragraph dealing with the three incidents was not just a body of introductory remarks; they were the encapsulated rejection of one body of the appellants’ claims. The Tribunal failed, it seems to me, to deal with the fears of the first appellant based on the beating in April/May 1999 by reference to the reasonably foreseeable future and on the assumption that the first appellant will continue to support the FLP.

(emphasis added)

27    The approach taken in these decisions does not, of course, deny that past events may assist and are relevant in assessing what is likely to occur in the future. As the joint judgment held in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 575:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

See also Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [33]-[35] (the Court).

28    However, as the joint judgment also held in Guo at 574, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence.”: see also S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [74] (Gummow and Hayne JJ).

29    As to the second ground of appeal, it is well established that, in discharging its duty to consider the appellant’s claims and the integers of those claims, the Tribunal was obliged to consider the implications of its own findings. As Young J held in MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 (MZWDG) in holding that the Tribunal had failed to consider a claim arising from its findings as to the extent to which the applicant’s past behaviour gave guidance as to his future behaviour:

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

30    The decision in MZWDG was followed by Jagot J in SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 (SZSSY). In that case, her Honour inferred that the Tribunal had not considered its findings as to the practical realities if the appellant relocated in determining whether he could reasonably relocate, but only the potential impacts in terms of the risk of the appellant suffering physical harm: SZSSY at [24]-[29].

31    The Minister rightly submits that the statement by Young J in MZWDG must be read subject to the caveat that the Tribunal is not obliged to deal with hypotheses that are not expressly raised or do not arise squarely on the material before it (citing Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [47]; see also e.g. NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15] (Allsop CJ) (affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124). However, with respect, that caveat does not address a case where the issue concerns the implications of the Tribunal’s own findings based upon an express claim. In this regard, it was not in issue here that the appellant expressly claimed that there was an increase in violence in Pakistan and that he feared persecution as a result in the future; nor was it in issue that the Tribunal made certain findings to that effect.

3.3    Grounds 1 and 2 are established

32    Applying these principles, the appeal should be allowed on Grounds 1 and 2.

33    First, as the Court below found, the Tribunal correctly identified the need to assess whether the appellant faces a real chance of persecution “now or in the reasonably foreseeable future” at two points in its reasons, namely: in the context of assessing whether the appellant was at risk of persecution if returned to his home region in Pakistan; and in its conclusion regarding the real chance of persecution for Convention reasons. Moreover, as the Court below also observed, those references did not merely appear in a template description of the law but in the body of the Tribunal’s reasons, including its conclusions on the relocation issue. It is true that in such a case, greater weight might be given to such statements as indicating that the Tribunal properly understood its statutory task. However, that does not immunise the Tribunal’s reasons from a conclusion that it nonetheless failed to apply the correct approach in the operative part of its reasons on the relocation issue: see by analogy SZGHS at [3] (Allsop J). The question whether such an error has occurred must be determined by a proper analysis of the Tribunal’s reasons. While it is often said that the reasons of the Tribunal are not to be construed in an overzealous manner designed to discern whether any inadequacy can be gleaned from the way in which they are expressed, “[t]hese general words of caution … do not relieve a reviewing court of carefully scrutinising the reasons of an administrative decision-maker”: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 229 FCR 290 at [20] (Flick J (with whose reasons Katzmann and Wigney JJ agreed)).

34    Secondly, this is not a case, as the appellant submitted, where it could be assumed that the past was a reliable basis for determining what might occur in the future, given the Tribunal’s increasing attacks findings with respect to the proposed areas of relocation. Rather, having found that the frequency of attacks appeared to be increasing, the Tribunal failed to consider whether the risk of attacks may continue to escalate in the foreseeable future, that is, was this a continuing trend, and how might that impact on the risk of persecution or significant harm to the appellant? To the contrary, the Tribunal’s reasoning was that, despite the spate of attacks in late 2014 and early 2015, the frequency of attacks before that time was limited numerically and for this reason the Tribunal discounted the risk of persecution or significant harm to the appellant (Tribunal reasons at [36]). As such, as the appellant submits, the Tribunal appeared to dismiss the increasing attacks finding by reference to the historical frequency of attacks occurring before the recent increase in attacks. Nor is the error remedied by the Tribunal’s reasoning that, when compared to the size of the Shia population including in Islamabad and Rawalpindi, the extent of attacks are infrequent (Tribunal reasons at [36]). Again nothing in that reasoning reveals a consideration of how the increasing frequency of attacks might impact on the risk of persecution or significant harm in the foreseeable future. That being so, the FCC with respect ought to have held that the Tribunal fell into error in failing to assess what might occur in the reasonably foreseeable future and in failing to consider the implications of its increasing attacks findings.

35    Thirdly, the Minister submitted at hearing that the appellant’s concerns with respect to the Tribunal’s reasons at [36] are met when regard is had to [40] of the Tribunal’s reasons. I do not agree. The Tribunal at [40] accepts there have been attacks against Shia religious processions and attacks in places where large number of Shias are likely to gather in Rawalapindi and Islamabad, and that “the [appellant] is most likely at risk” at such processions and places because he is a Shia. In the same paragraph, it also accepted evidence of the presence of terrorist groups throughout Pakistan, and that the Taliban in particular has a presence in Islamabad. However, the Tribunal then found at [40] that the chances of harm were remote without again factoring in its earlier findings as to the increasing nature of such attacks. As such, the Tribunal at this point also failed to address the risk of persecution and harm in the reasonably foreseeable future and to have regard to the implications of its earlier findings.

4.    CONCLUSION

36    For these reasons the appeal should be allowed with costs. An order should also be made allowing the appellant his costs in the Federal Circuit Court.

Associate:

Dated:    4 May 2018