FEDERAL COURT OF AUSTRALIA

BOT15 v Minister for Immigration and Border Protection [2018] FCA 654

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 15 June 2017 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 it being quashed, the decision of the second respondent dated 6 July 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 of mandamus directing the second respondent to review, according to law, the decision of a delegate of the first respondent to refuse to grant a protection visa to the applicant; and

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

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Tribunal): BOT15 v Minister for Immigration and Border Protection [2017] FCCA 1266 (BOT15). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Protection (Class XA) visa (Visa).

2    The appellant’s notice of appeal raises a single ground of appeal by which he alleges that the primary judge erred in failing to find that the Tribunal had erred when it addressed the question of whether the appellant faced a real risk or chance of harm in the reasonably foreseeable future. The ground of appeal is particularised by reference to the Tribunal’s treatment of the appellant’s claim that he feared harm because of the withdrawal of foreign troops from his home area as set out at [17] below.

3    For the reasons that follow the appeal should be allowed.

background

4    The appellant is a citizen of Afghanistan. He arrived in Australia by boat on 5 August 2012.

5    On 10 December 2012 the appellant applied for the Visa. The appellant claimed to fear harm due to his Hazara ethnicity and because he is a Shia Muslim. In his statement accompanying his Visa application he claimed that:

(1)    he had not lived in Afghanistan since 1993 and that he grew up in Iran where his immediate family still live;

(2)    his only contact with Afghanistan was when he was deported there in 2012, that he was scared to live there and so he only stayed a short time until he decided to depart for Australia;

(3)    on two occasions, in 2002 and either 2006 or 2007, he was mistreated in Iran because he was from Afghanistan;

(4)    a year prior to making the Visa application the Iranian police grabbed him from the street, took him to a worksite in Bam where he was used as slave labour and after a week took him to the border and threw him into Herat Afghanistan;

(5)    he subsequently travelled to his father’s village in Bamiyan (also referred to as Bamyan). There was a dispute over the ownership of his grandfather’s house which was occupied by a Pashtun. He was beaten up and his hearing was permanently damaged. As he was scared for his safety he travelled to Kabul;

(6)    he felt unsafe in Kabul where there were suicide bombings aimed at killing Hazaras so he made arrangements to escape to a safer country;

(7)    if he returned to Iran he would be seriously harmed and/or killed by the Iranian police; and

(8)    if he returned to Afghanistan he would be targeted by the Taliban because he is a Hazara.

6    On 17 July 2013 a delegate of the Minister refused to grant the Visa.

7    On 23 July 2013 the appellant applied to the Tribunal for review of the delegate’s decision.

8    In February 2014 the appellant’s representatives provided submissions to the Tribunal in support of the application (Pre-hearing Submission) which specified that the appellant feared persecution on the basis of his Hazara race, Shia Muslim faith and membership of particular social groups namely, as a returnee from the West/failed asylum seeker and an individual who had resided outside Afghanistan for a prolonged period of time. The Pre-hearing Submission included numerous references to and extracts from country information which was relied on by the appellant’s representatives to submit that, with the removal of foreign forces, the situation in the appellant’s “area” will deteriorate and the persecution of Shias and Hazaras will continue to escalate.

9    On 16 April 2015 the appellant attended a hearing before the Tribunal.

10    On 23 April 2015 the appellant’s representatives provided the Tribunal with a post hearing submission (Post Hearing Submission). Under the heading “Security Situation in Bamiyan” that submission included (as written):

During the review hearing, the Tribunal put to the Applicant country information indicating that the security situation in Bamiyan was better than it is in other parts of Afghanistan. It was stated that according to most recent reports, "there are no reports of insurgent activities in Bamiyan". Country information indicates that residents of Bamiyan continue to hold grave concerns for the future of the Bamiyan, especially following the withdrawal of the troops.

Many reports express local skepticism over the Afghan Government's ability to maintain Bamiyan's reputation as being a 'safe area'. Local residents and reporters have raised concerns over the ability of the Taliban to once again exercise control over Bamiyan following the withdrawal of the troops. It is important to note that it is not reasonable to suggest that Bamiyan will be able to continue to maintain a level of safety particularly given that surrounding Provinces are riddled with dangerous and insurgent activity. Bamiyan is over 200km from violence riddle capital of Kabul.

…

The Tribunal also made reference to the recent DFAT Thematic Report ('DFAT report') published 26 March 2014. The Tribunal stated that DFAT assessed there was a low risk of violence for Hazaras in Bamiyan and also that there was a number of factors making Bamiyan safe, such as the fact that the majority of the population in Bamiyan is made up of Hazaras which means that ethnic tensions remain low. The second factor making Bamiyan safe according to DFAT is that non-Hazaras may find it difficult to infiltrated Bamiyan without detection because of Bamiyans strong Hazara presence.

Whilst we acknowledge the contents of the report, we respectfully submit that the DFAT report does not take into consideration the future security outlook of Bamiyan which many articles say is uncertain due to growing Taliban activity and the withdrawal of the troops. We further advise that the Applicant cannot be expected to remain within Bamiyan his entire life. In a practical sense, given limited facilities in Bamiyan, the Applicant will no doubt be required to travel to other areas of Afghanistan and more important, use the major roads leading out of Bamiyan which are widely reported to be insecure.

11    On 6 July 2015 the Tribunal affirmed the decision under review.

the tribunal decision

12    The Tribunal rejected all of the appellant’s claims. It concluded that the appellant did not face a real chance of serious harm and that there would not be a real risk that he would suffer significant harm if he returned to Afghanistan.

13    Relevant to the appellant’s ground of appeal, the Tribunal in its reasons:

(1)    assessed the appellant’s claims on the basis that his home region was Bamiyan;

(2)    put country information to the appellant concerning the security situation in Bamiyan generally and travel from Kabul to Bamiyan and discussed information with the appellant that indicated that “Bamyan appeared to be one of the most secure locations within Afghanistan for Hazaras”;

(3)    found that there was no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras were being persecuted on a consistent basis;

(4)    having considered the country information, did not accept that the appellant had a real chance of serious harm arising out of his Hazara ethnicity or his Shia religious belief in Afghanistan, now or in the reasonably foreseeable future;

(5)    found that there was a relatively secure route from Kabul to Bamiyan and that the appellant did not have a real chance of serious harm on the road between Bamiyan and Kabul as a Hazara, a Shia or as a returnee from a western country;

(6)    found that Bamiyan is under control of the Afghan authorities;

(7)    considered that there is a violent situation in Afghanistan and that the withdrawal of foreign troops had led to an increase in violence, however, did not accept that the withdrawal of foreign troops had led to the deterioration of security to such an extent that the government had lost control of significant locations in Afghanistan and, relevantly for the appellant, locations such as Kabul;

(8)    did not accept that the appellant has a real chance of serious harm or a real risk of significant harm arising from the withdrawal of foreign troops from Afghanistan, now or in the reasonably foreseeable future; and

(9)    found that the appellant’s claim that he would not be able to support himself in Bamiyan without family support was not made out.

proceeding in the federal circuit court

14    Only the second of the five grounds raised by the appellant in his amended application filed in the Federal Circuit Court seeking judicial review of the Tribunal’s decision is relevant to this appeal. By that ground the appellant alleged that the Tribunal erred by misconstruing or misapplying the test for whether the appellant faced harm in the reasonably foreseeable future as a result of the withdrawal of foreign troops from Afghanistan, or otherwise failed to consider the totality of the appellant’s claims to fear harm as a result of the withdrawal of foreign troops. The ground was particularised first, by reference to parts of the Tribunal’s decision and then, at particular (e), the appellant alleged:

e.     In taking this approach, the Tribunal erred as:

i.    the Tribunal considered what effect the troop withdrawal had had up until February 2015, or up until the time of the Tribunal’s Decision, but failed to consider what effect the withdrawal might have when it was completed (which the Tribunal acknowledged was yet to occur);

ii.     the Tribunal’s failure in this respect meant that it failed to consider the totality of the applicant’s claims, which include a claim, made in April 2015, to fear harm because of the uncertain future security outlook in Bamiyan due to “growing Taliban activity and the withdrawal of the troops”…

iii.     the Tribunal focused on the risks that the withdrawal of troops had created in locations such as Kabul, but Kabul was not the applicant’s home region… The Tribunal needed to, but failed to, focus on the risk that the withdrawal of troops would create in Bamiyan.

15    The primary judge considered this ground at [25]-[27] of BOT15. His Honour referred to various aspects of the Tribunal’s decision noting that the Tribunal:

    considered recent country information concerning the effect of the withdrawal of international forces (at [89]-[96]);

    concluded that Bamiyan was under the control of Afghan authorities (at [86]);

    referred to the appellant’s claim that the withdrawal of western forces from Afghanistan would lead to a significant rise in violence (at [89]); and

    canvased the then current information and concluded (at [95]) that the withdrawal of troops had led to an increase in violence but that it did not accept that the withdrawal had led to the deterioration of security to such an extent that the government had lost control of significant locations in Afghanistan, most relevantly for the appellant, locations such as Kabul: BOT15 at [26] quoting the Tribunal’s decision at [95].

16    At [27] the primary judge concluded that:

The Tribunal gave that consideration in circumstances where it had considered information and made findings that Bamiyan appeared to be one of the more secure locations within Afghanistan for Hazaras. That conclusion also has to be read with the earlier finding that Bamiyan was in the control of the authorities. There is no failure to give consideration the (sic) applicant’s claims and this ground fails for that reason.

(footnote omitted)

the appeal

17    As noted at [2] above, the appellant’s notice of appeal raises a single ground of appeal. At the heart of the appeal is the issue of the withdrawal of foreign forces from Afghanistan. That is reflected in the particulars to the ground of appeal which are as follows:

a.    The Tribunal found that Bamiyan was the appellant’s home region: Tribunal’s decision at [101].

b.    The appellant claimed to fear harm in the future in Bamiyan on the basis of the security situation deteriorating following the withdrawal of international troops (the Future Risk Claim).

c.    The Tribunal erred in addressing the Future Risk Claim by either or both (Tribunal’s decision at [89]-[96], and especially at [95]):

i.    focusing too greatly on the present situation rather than the risk of deterioration in the future; and

ii.    focusing on Kabul, which was not the appellant’s home region.

d.    In failing to find that the Tribunal had erred, the [Federal Circuit Court] erred by one or more of:

i.    not addressing the fact that the Tribunal had focused on Kabul rather than Bamiyan ([BOT15] at [25]-[27]);

ii.    placing undue weight on statements made by the Tribunal regarding the security situation in Bamiyan when in those statements the Tribunal was not:

A.    assessing the Future Risk Claim; and

B.    considering the risk that the appellant might face in Bamiyan in the future: BOT15 [26] (referring to the Tribunal’s decision at [86]), and BOT15 at [27] (referring to Tribunal’s decision at [56]);

iii.    not finding that the Tribunal’s reasoning at [89]-[96] of the Tribunal’s decision focused too greatly on the present situation rather than the risk of deterioration in the future.

Appellant’s submissions

18    The appellant’s submissions addressed first how he alleged the Tribunal erred and secondly how he alleged the primary judge erred.

19    In relation to the Tribunal the appellant submitted that it had erred in two ways.

20    First, the appellant submitted that the Tribunal focused on the effect of the withdrawal of foreign troops on the situation in Kabul as is made plain by [95] of its decision record which appeared shortly after it set out country information to the effect that large cities like Kabul were not becoming more violent. The appellant noted that Bamiyan was not listed as one of the “country’s largest cities” referred to in that country information. The appellant contended that the material before the Tribunal suggested that Bamiyan was a remote location far from Kabul.

21    The appellant submitted that, while it was unclear why the Tribunal focused on Kabul when assessing whether the withdrawal of international troops gave rise to a risk of harm in the foreseeable future given that the Tribunal found Bamiyan to be the appellant’s home area, its reason for doing so did not matter. By doing so, the appellant contended that the Tribunal erred in failing to determine whether he faced a real risk of serious harm or a real chance of significant harm in the reasonably foreseeable future in his home area as a result of the upcoming completion of the withdrawal of foreign troops.

22    Secondly, the appellant submitted that the Tribunal focused on the past and present rather than the future. The appellant said that the Tribunal acknowledged that the security situation had deteriorated as international forces were drawn down and that its reasons at [95] of its decision record show that the Tribunal focused on the situation that the withdrawal of troops had led to and, in particular, whether the Afghan government had lost control of certain locations in Afghanistan. The appellant contended that whether the government had done so did not answer the question of the future risk faced by him once the withdrawal of foreign troops was complete, a question that required an assessment of the future, not just the past and present or even immediate future.

23    The appellant submitted that the Tribunal’s statement at [96] of its reasons could not save the decision as it was merely a conclusion based on the reasons that preceded it and that where, as here, the reasons are flawed, the flaw cannot be cured by a boilerplate statement.

24    Turning to the decision of the primary judge, the appellant identified three errors insofar as it addressed the second ground of the application.

25    First, the appellant submitted that the primary judge did not address the fact that the Tribunal focused on Kabul rather than Bamiyan and that there is no discussion in the primary judge’s reasons of why the Tribunal at [95] stated its ultimate conclusion on this issue with regard to “most relevantly for the [appellant], locations such as Kabul”. The appellant contended that that statement gives the clearest possible indication that the Tribunal misplaced its focus in respect of the risk of harm posed by the troop withdrawal yet the primary judge did not engage with this problem in the Tribunal’s reasoning which was clearly pleaded.

26    Secondly, the appellant submitted that the primary judge placed undue weight on statements made by the Tribunal regarding the security situation in Bamiyan when, in those statements, the Tribunal did not even purport to deal with future risk, particularly the future risk posed by the withdrawal of foreign forces. The appellant contended that the statement at [86] of the Tribunal’s decision that “Bamiyan is under the control of the Afghan authorities” was made in the context of the Tribunal assessing whether the appellant was entitled to protection on the basis that he was a returnee from the West and did not purport to be focused on the future. The appellant argued that, in context, the statement was plainly not an answer to the question regarding the risk of future harm as a result of the withdrawal of troops.

27    Insofar as the primary judge relied on [56] of the Tribunal’s decision, the appellant submitted that there the Tribunal did not make the holding stated by the primary judge but merely recited that it had discussed with the appellant information that Bamiyan “appeared to be one of the most secure locations within Afghanistan for Hazaras”. The appellant further submitted that the statement by the Tribunal at [56] of its decision record did not purport to be focused on the future and that the section of the Tribunal’s reasons in which [56] appears clearly does not deal with the risk of harm associated with the future withdrawal of troops, especially given the way the Tribunal’s reasons are structured.

28    In light of the above, the appellant submitted that the primary judge erred in relying on the statements at [56] and [86] of the Tribunal’s decision to conclude that the Tribunal had not erred in failing to consider the future risk of harm posed by the troop withdrawal with respect to Bamiyan. He further submitted, relying on Shrestha v Minister for Immigration and Border Protection (2017) 251 FCR 143 (Shrestha) at [106]-[107], that the structure of the Tribunal’s decision clearly delineates “between discrete aspects of [the] decision-maker’s mental processes” and thus, [89]-[96] of the Tribunal’s decision under the heading “Withdrawal of Western forces from Afghanistan” shows that the Tribunal’s reasons in respect of the risk of harm associated with troop withdrawal appear in that part of the decision not elsewhere. The appellant contended that the primary judge had “patched up” the Tribunal’s reasoning at [89]-[96], which was the only section of the Tribunal’s decision that focused on (or purported to focus on) the future risk of harm associated with troop withdrawal, however, this section did not focus on Bamiyan. The appellant said it was not a fair reading of the Tribunal’s decision to find otherwise.

29    Thirdly, the appellant submitted that the primary judge erred in not finding that [89]-[96] of the Tribunal’s decision focused on the present rather than the future for the reasons set out at [22]-[23] above. In light of the Tribunal’s focus on whether the Afghan government had lost control of certain locations in Afghanistan, the appellant submitted that the primary judge’s reasons did not say much as to why the Tribunal had not erred in focusing on the present at the expense of the future. The appellant contended that the fact the government had not yet lost control of certain locations did not answer the questions of whether the government might lose control in the reasonably foreseeable future once the international troop withdrawal was finalised or whether a risk of harm might manifest after the withdrawal of the troops, even if government control was not completely lost.

Consideration

30    The appellant’s ground of appeal essentially raises two issues in relation to the claim to fear harm in Bamiyan following the withdrawal of foreign troops. The first concerns whether the Tribunal failed to consider Bamiyan and the second concerns whether the Tribunal failed to consider the risk of deterioration of the security situation following the withdrawal of foreign troops in the reasonably foreseeable future. It is in relation to the second aspect of the ground of appeal that the appellant has succeeded.

31    In order to consider the first aspect of the appellant’s ground of appeal it is necessary to consider the detail of the Tribunal’s decision.

32    At [46] of its decision record, because of evidence given by the appellant at his entry interview, the Tribunal rejected the appellant’s claim that he was harmed on his return to Bamiyan and thus rejected the appellant’s claim that he had damaged hearing as a result of beatings that occurred in Afghanistan. The Tribunal considered that the appellant had not been subjected to any personal harm when he resided in Afghanistan in 2012.

33    At [47]-[66] of its decision record under the heading “Claims” the Tribunal then turned to consider what it described as “a number of claims” made by the appellant as to why he believed he could not return to Afghanistan, including because he claimed to fear harm as a Hazara Shia and because of his extended departure from Afghanistan while living in Iran (1993–2012) and more recently Australia (August 2012 onwards). The Tribunal also noted that the appellant feared harm “because of his extended period of time in Australia, which could provide him with a pro-West imputed political opinion and that he could be a spy”: at [47].

34    The Tribunal addressed the appellant’s home area – Bamiyan. At [53] of its decision record the Tribunal set out country information about the security situation in Bamiyan, which it had discussed with the appellant, and at [54] it referred to a European Asylum Support Office (EASO) report of February 2015 (February EASO Report), a more recent report to that referred to in the Pre-hearing Submission. Among other things, the February EASO Report stated:

Bamyan is among the peaceful provinces in central Afghanistan where insurgent groups do not operate in any of its districts. Bamyan enjoys bolstered security. However, the province occasionally faces security challenges from the side of the province of Baghlan in the districts of Kihmard, Sayghan, and Shaiber, despite tight security.

35    At [55] the Tribunal referred to the Post Hearing Submission which referenced a different part of the February EASO Report and which noted that, while there have been some insurgents who had joined the government, an additional 30 people had joined the insurgents and some voters had complained about the presence of illegal gunmen in the area, fearing they may not be able to vote in April 2014. For completeness the Tribunal referred to the next sentence of the report, not included in the Post Hearing Submission, which stated that “officials rejected the complaint as being exaggerated, insisting that no significant armed groups operated in the district”.

36    At [56] the Tribunal said that it discussed this information with the appellant, that in terms of locations within Afghanistan, Bamiyan “appeared to be one of the most secure locations within Afghanistan for Hazaras” and that the high concentration of Hazaras in the area provides a level of security and protection of which the appellant could take advantage. The Tribunal concluded that, based on the country information, the appellant “would be in a position to reside in Bamiyan without being subjected to harm” and that the appellant “does not have a real chance of serious harm or a real risk of significant harm arising from his Hazara ethnicity”.

37    The Tribunal then considered the appellant’s claim that Hazaras and Shias were being targeted across Afghanistan, a claim which it questioned based on the information about Bamiyan and more broadly, country information about Afghanistan. The Tribunal noted that the link between the appellant’s Hazara ethnicity and Shia religion was very strong and referred to a January 2015 EASO report which said, among other things, that Bamiyan was predominantly inhabited by Hazara Shias and that 90% of its inhabitants belong to the Shia sect. The Tribunal noted that it had sought, but was unable to locate, any information that stated that Shias have been targeted in Bamiyan in the last 15 years: at [57]-[58].

38    At [59]-[61] the Tribunal considered an attack which had taken place in Kabul in 2011 that had targeted a mosque attended by Hazara Shias and which had been referred to in the appellant’s Pre-hearing Submission.

39    At [63] the Tribunal considered the circumstances of Hazara Shias generally in Afghanistan noting that the overall weight of the country information indicated that there was no evidence of a general campaign by the Taliban insurgency to target Hazara Shias or that Hazaras are being persecuted on a consistent basis.

40    The Tribunal concluded that it did not accept that the appellant had a real chance of serious harm arising out of his Hazara ethnicity or his Shia religion in Afghanistan now or in the reasonably foreseeable future and that the appellant did not have a well founded fear of persecution for that reason nor did he face a real risk of significant harm: at [65]-[66].

41    As the Minister submitted the Tribunal’s reasoning summarised in the preceding paragraph is dispositive of the appellant’s claims to fear harm because of his Hazara Shia background as set out in his application for the Visa and the Pre-hearing Submission.

42    The Tribunal then went on to consider the other submissions made on behalf of the appellant, namely that: there had been reports of Islamic State in Afghanistan; the appellant claimed to fear harm travelling on the roads, particularly on the route between Kabul and Bamiyan; he claimed to fear harm as a returnee from the West; he claimed that the withdrawal of western forces from Afghanistan would lead to a significant rise in violence; and finally, it would be very difficult to return to and live in Bamiyan.

43    The Tribunal addressed the effect of the withdrawal of western forces at [89]-[96]. That part of its decision, which appears under the heading “Withdrawal of Western forces from Afghanistan”, commences after its finding at [86] that Bamiyan is under the control of Afghan authorities. In considering the issue the Tribunal, noting that the process is almost complete, referred to country information which considered the effect of troop withdrawal and which necessarily focused on those areas which were affected by that process. For example at [92] the Tribunal noted that the United Nations Assistance Mission in Afghanistan had said that:

… as the withdrawal of international military forces and combat air support had continued in 2014, it had observed more frequent and larger ground operations by both the Afghan National Security Forces and Anti-Government Elements, notably in Helmand, Kunar and Faryab provinces, with fighting often occurring near district centres.

And at [94]:

The UN Secretary-General said that the most significant attacks had been in Helmand and Kandahar provinces in the south, Ghazni, Paktia and Paktika in the south-east, Nangarhar in the east, Kunduz in the north-east, Faryab in the north and Herat, Farah and Ghor in the west.

(footnote omitted)

44    The country information referred to by the Tribunal also considered the effect of the troop withdrawal on Kabul. An article from the Wall Street Journal referred to by the Tribunal at [94] of its decision record included:

Most major cities remain safer for Afghan citizens than they were even four or five years ago. There has been some worsening on balance over the past one to two years, in Kabul particularly, and some smaller cities in the south and northeast. But on balance the country’s largest cities after Kabul – Kandahar, Herat, Mazar-e-Sharif – are not becoming more violent or anarchic. Kandahar, where the Taliban movement originated, is probably safer than at any time in the past seven or eight years. Of the country’s 34 provinces, no capital cities are inaccessible to the government.

45    The Tribunal concluded at [95] that:

The Tribunal considers that there is a violent situation in Afghanistan, and the withdrawal of troops has led to an increase in violence. However the Tribunal does not accept that the withdrawal has led to the deterioration of security to such an extent that the government has lost control of significant locations in Afghanistan, and most relevantly for the applicant, locations such as Kabul.

46    That conclusion follows from the consideration of country information of the nature set out above which, in turn, followed a finding that Bamiyan was under the control of Afghan authorities. The country information identified areas where there was an issue arising from the withdrawal of foreign troops which it seems, consistent with the Tribunal’s finding at [86], did not include Bamiyan. The Tribunal’s conclusion at [95] identified Kabul as the most relevant location for the appellant in the context of considering the issue of withdrawal of foreign troops because, of the places in which there was an issue, that was the only one of relevance to the appellant. That can be deduced from the Tribunal’s earlier consideration of the route that the appellant would travel between Kabul and Bamiyan.

47    The appellant relies on dicta in Shrestha at [106]-[107] where Charlesworth J said:

106    There may be instances in which the reasons of an administrative decision-maker do not clearly delineate (whether by words or structure) between discrete aspects of a decision-maker’s mental processes. In such cases, a particular part of the reasons may not be fairly read as being confined to one particular aspect of the decision-maker’s task or another.

107     But that is not this case. The Tribunal’s mental processes in identifying the existence of a ground for cancellation are clearly those set out in the Reasons under the heading “Does the ground for cancellation exist?” The question of whether the Tribunal erred in determining that discrete issue may be answered primarily by reference to that part of the Reasons. That part of the Reasons is, of course, to be read in the context of the Tribunal’s decision as a whole and having regard to the cautionary principle that the reasons of an administrative decision-maker are not to be scrutinised with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

48    Here the Tribunal did not segment its findings in the way that appears to be the case in Shrestha. The headings adopted by the Tribunal in this case were a convenient way of organising a relatively lengthy decision, comprising 28 pages, and no doubt a way of delineating the issues that the Tribunal considered. However, the Tribunal’s reasons need to be considered as a whole. They cannot be read in the segmented way urged by the appellant. That this is so is reinforced by the Tribunal’s conclusions at [100]-[101] where it made its “cumulative findings” drawing its relevant findings together.

49    As is well accepted and referred to in Shrestha in the passages relied on by the appellant, the reasons of an administrative decision-maker are not to be construed minutely or with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. A fair reading of the Tribunal’s decision does not lead to the conclusion propounded by the appellant. The Tribunal did not err because it focused on Kabul rather than Bamiyan. As I have already observed, it considered the appellant’s claim to fear harm because of the withdrawal of troops from Afghanistan and logically did so in light of its finding at [86] concerning the situation in Bamiyan, the appellant’s own circumstances, the country information and its relevance to the appellant.

50    The second aspect to the appellant’s ground of appeal is the allegation that the Tribunal focused on the past and present rather than the future in making its findings concerning his claim to fear harm as a result of the withdrawal of foreign troops. The appellant submitted that the Tribunal’s findings at [95] focused only on the present yet his claim was about the withdrawal of troops which was not yet complete. The appellant contended that the Tribunal did not make a finding as to the future risk of harm he would face when the withdrawal of troops completed. As the appellant submitted, the primary judge's reasons do not address this aspect of ground two of the amended application filed in the Federal Circuit Court.

51    The Minister submitted that the Tribunal expressly considered the future when it said “now or in the reasonably foreseeable future”, for example, at [65] and [95] of its decision record (although I assume the reference to [95] was intended to be a reference to [96]). It further submitted that these statements were not boilerplate as alleged by the appellant.

52    The Minister submitted that the Tribunal could only deal with facts up to the present before it then had to (and was permitted to) speculate about the future based on past events. The Minister argued that the Tribunal’s reasoning about the withdrawal of foreign troops looked at trends and what has happened; that at [95] of its decision record, it said that the withdrawal of foreign troops had not resulted in a trend of deteriorating security to such an extent that the government had lost control of significant locations; and at [96], in reaching its conclusion about the future, the Tribunal correctly set out the test it was required to apply.

53    The Minister contended that the appellant was inviting the Court, despite the flow of the relevant part of the Tribunal’s decision and the invoking of the right test, to find that the Tribunal did not do what it expressly said it did and what it looks like it did. The Minister submitted that this is clearly a case where the Tribunal has applied the correct test.

54    The appellant relies on SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 (SZGHS) at [2] where Allsop J (as his Honour then was) held that the reasons of the tribunal in that case demonstrated:

… a failure to assess the first appellant’s claims to have a well-founded fear of persecution by reference to his claims, to the possibilities of future persecution, and to the reasonably foreseeable and not merely the immediate future.

55    Relevantly at [3] his Honour also said:

The Tribunal may be taken to have directed itself in respect of these matters uncontroversially in its template introduction. That does not, however, immunise its reasons from scrutiny or from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach (which it has otherwise correctly stated to bind it).

56    In my opinion the same can be said about the Tribunal’s conclusion at [96] of its decision record in this case.

57    In SZGHS the first appellant claimed to fear harm from extremists in Fiji due to his support of the Fiji Labour Party and of Indian Fijians. Before the Tribunal the first appellant described three incidents which gave rise to his claim including, among others, being abused and beaten to unconsciousness and being threatened. Allsop J considered particular parts of the Tribunal’s decision and at [28] concluded that:

… 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 [Fiji Labour Party], he would not face a similar beating for the same reasons, or threats from elements of the Taukei Movement who had already targeted him…

58    In the present case, in addressing the issue of the appellant’s claim to fear harm because of the withdrawal of foreign troops, the Tribunal considered a range of country information, in part described at [34]-[44] above. The information referred to by the Tribunal in turn considered the impact and effect of foreign troop withdrawal up to the date of the relevant reports and seems to be forward looking in one case only – that is, in the opinion piece from the Wall Street Journal extracted at [94] of the Tribunal’s decision record where it notes that “[t]his political reconciliation makes it likely that the security forces will continue to respect central-government authority”. I accept the Minister’s submission that it is permissible for the Tribunal to speculate about the future based on past events and present circumstances. But the vice in the Tribunal’s decision is that it did not, in my opinion, undertake any such speculation. Its findings at [95] were limited only to the present. They cannot be construed as addressing the future. The Minister relies on [96] as the finding as to the future where the Tribunal stated:

The Tribunal does not accept that the [appellant] has a real chance of serious harm or a real risk of significant harm arising from the withdrawal of foreign troops from Afghanistan, now or in the reasonably foreseeable future.

59    That conclusory statement does no more than set out the test. It is a bare assertion that is insufficiently explained and lacks logical connection to the material and analysis that precedes it. There is no consideration by the Tribunal of what may happen after the completion of the withdrawal of foreign troops and of how the country information demonstrates that the appellant does not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. Its focus on the near completion of the withdrawal of foreign troops looks to the past and present and, possibly, to the near future, and not to the reasonably foreseeable future.

conclusion

60    The appeal should be allowed. I will make orders setting aside the decisions of the Federal Circuit Court and the Tribunal and remitting the matter to the Tribunal for rehearing. The Minister should pay the appellant’s costs of the appeal and of the proceeding in the Federal Circuit Court.

Associate:

Dated:    11 May 2018