FEDERAL COURT OF AUSTRALIA

CNN16 v Minister for Immigration and Border Protection [2018] FCA 1526

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs of the appeal fixed in the amount of $6,000.

3.    The costs of the appeal be assessed on a lump sum basis.

4.    If the parties agree on a lump sum figure in relation to the first respondents costs, they are to file a joint minute of proposed orders on or before 26 October 2018.

5.    In the absence of any joint proposed order pursuant to order 4:

(a)    on or before 2 November 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Courts Costs Practice Note (GPN-COSTS).

(b)    on or before 14 November 2018, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

6.    In the absence of any agreement having been reached on or before 28 November 2018, the matter of an appropriate lump sum figure for the first respondents costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The refusal of the appellant's application for a protection visa by a delegate of the Minister was affirmed by the Administrative Appeals Tribunal on 2 August 2016. An application to the Federal Circuit Court to review the Tribunal's decision on the basis of jurisdictional error was dismissed on 2 March 2018. The appellant brings an appeal to this Court.

2    The sole ground of appeal is that the primary judge erred in failing to conclude that the Tribunal's decision was affected by jurisdictional error because the Tribunal failed to consider the applicant's claim that he feared harm from Islamic State if he was returned to his home region of Parachinar in Pakistan.

3    For the following reasons, the primary judge was not in error and the appeal should be dismissed.

Relevant principles

4    Where a valid application is made to the Tribunal to review a decision to refuse to grant a protection visa, then the Tribunal must undertake a 'review': s 414 of the Migration Act 1958 (Cth).

5    For the Tribunal to make a decision without having considered all of the claims put to it is to fail to complete the exercise of its jurisdiction to undertake a review: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42] (Allsop J (as the Chief Justice then was), Spender J agreeing).

6    The further proposition in Htun that a 'claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration' must be considered in the context of changes introduced by Part 8 of the Migration Act, particularly s 476 and s 476A. The Migration Act previously enumerated grounds of review. It now states that the review jurisdiction is the same as the original jurisdiction of the High Court under s 75(v) of the Constitution, relevantly for present purposes a jurisdiction that requires the demonstration of jurisdictional error. Jurisdictional error may include ignoring relevant material in a way that affects the exercise of power: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [27]. However, as observed by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97]:

… merely to ignore 'relevant material' does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.

7    Recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, Kiefel CJ, Gageler and Keane JJ described jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it: at [24]. Their Honours then described the principle by reference to the analysis by Professor Jaffe in 'Judicial Review: Constitutional and Jurisdictional Fact' (1957) 70 Harvard Law Review 953 and by Selway J in 'The Principle Behind Common Law Judicial Review of Administrative Action - The Search Continues' (2002) 30 Federal Law Review 217 in the following terms:

To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately 'a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised.'

8    It follows that where, as here, the jurisdictional error is said to lie in a failure to consider some aspect of the claims raised before the Tribunal on review, it is necessary to consider whether that which the Tribunal did not consider is something which is of a such a character that a failure to consider it means that the Tribunal has not actually undertaken the review required by the statute. That is to say it has failed to undertake the statutory task at all or has failed to undertake it completely.

9    In the above context, to use the label 'claim', or 'significant or important claim' or 'critical evidence' or 'important material' to describe that which it is said the Tribunal did not consider may direct the inquiry away from one about whether the repository of the power (in this case the Tribunal) has performed the task. It may invite instead an inquiry as to whether the repository has taken a view of the material or the evidence or the contentions advanced which is one with which a court agrees. Where, as here, the correctness of the adjudication of the merits is not a matter going to jurisdiction, there is a risk of characterising that which is not jurisdictional as invalidating the exercise of power. Generally speaking, it is a matter for the Tribunal to evaluate whether material or evidence or submissions are significant, critical or important. Therefore, it is important to focus with some care upon the nature of the statutory task entrusted to the Tribunal.

10    As I have noted, this appeal concerns an application for a protection visa. Whether a protection visa is to be granted under the Migration Act depends upon whether the Minister is 'satisfied' of the requisite matters in s 36 (being the relevant criteria for the purposes of s 65). If a review is sought of the Minister's decision in the Tribunal then Part 7 of the Migration Act applies with the effect that the statutory criterion to be met becomes the satisfaction of the Tribunal: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [29], [37] and [132].

11    So, when reference is made to an obligation on the part of the Tribunal to consider 'claims' the reference is to the claims made as to why the Tribunal should be satisfied that the applicant for a protection visa should be granted a visa having regard to the terms of s 36.

12    However, it is the Tribunal that is entrusted with the task of forming the required state of satisfaction, not the court on review. Further, it is not for the court, under the guise of considering whether the required review has been undertaken, to reach a view that the jurisdiction has not been exercised because the Tribunal has not dealt with a claim by adopting a process of reasoning that a court might adopt in resolving competing contentions advanced as part of an adversarial process where the court is adjudicating legal rights and obligations: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at [71]-[73]. Provided the Tribunal consciously engages with the task of considering whether it has reached the required state of satisfaction in respect of each way the applicant formulates his or her claim to a protection visa then the statutory responsibility is performed.

13    There may be a separate question as to whether procedural fairness has been afforded or whether the decision is outside the bounds of an applicable standard of reasonableness or the statutory requirement to provided reasons has been discharged if a particular argument supporting a claim has not been addressed in the reasons given by the Tribunal on review or a particular part of the evidence is not addressed expressly in the reasons. So, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, Gummow and Callinan JJ (Hayne J agreeing) held that 'to fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord … natural justice': at [24].

14    However, when it comes to alleged jurisdictional error by reason of a failure to consider a claim it must be shown that the failure to consider the claim was of a kind that meant that the review required by the Migration Act was not undertaken. If the review does not extend to a particular way that the claim to a protection visa was formulated then the statutory task will not have been discharged and there will be jurisdictional error, in effect a failure to exercise the jurisdiction entrusted to the Tribunal.

15    In making an assessment as to whether the review task has been undertaken, it must be kept in mind that the statutory task for the Tribunal is not confined to claims as articulated by the applicant. If the evidence and material presented to, and not rejected by, the Tribunal raises a matter for consideration as part of a review of the decision then that matter must also be considered in order for the Tribunal to perform its statutory task: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]-[62] and Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70]. However, a judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made: NABE at [68]. That is because the review to be undertaken by the Tribunal will depend to some extent upon the framework set by the claims made by the applicant: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 at [27].

16    These principles require an inquiry that focusses upon the particular circumstances of each case. Reference to the evidence for the applicant and the submissions advanced will assist in identifying the claims made by the applicant. Reference to the reasons in the context of the evidence and material advanced will assist in considering whether there has been a review in respect of each claim advanced.

17    However, in considering what may be indicated by the reasons of the Tribunal, the following statement by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] should be noted:

When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material.

18    The Tribunal is only required to set out its findings on what it considers to be material and the failure to refer to a matter in the reasons is to be evaluated in that context: Yusuf at [33]-[36] (Gaudron J); at [68]-[69] (McHugh, Gummow and Hayne JJ); and contra at [133]-[138] (Kirby J).

19    Finally, in referring to the evidence, submissions and reasons, care must be taken to ensure that the court does not usurp the statutory requirement by appropriating to itself the review task. If the Tribunal has engaged in a review that extends to include the claims made, then the court must respect the fact that it is the Tribunal that is the repository of the statutory power to conduct the review and assess the merits. It is not for the court to construct a failure to undertake a review out of the manner in which the Tribunal has dealt with the merits of particular claims. If the Tribunal has dealt with the claims made then there may be other reasons why there is jurisdictional error (such as unreasonableness), but there will not be an error of the kind alleged in this appeal. Of course, questions of degree are involved. In each case the question is whether the circumstances of the particular case demonstrate that there has been a performance of the statutory task of conducting a review, recognising that the judgments and assessment to be made in undertaking that review are matters entrusted to the Tribunal.

20    Various descriptions have been used in the decided cases to describe particular circumstances which may amount to jurisdictional error by reason of a failure by the Tribunal to undertake the required review.

21    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Court summarised the required approach in the following way at [44]-[46]:

It is central to the exercise of the dispositive powers conferred by s 415 that the Tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself …

In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa … The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court ...

22    Ultimately, in Applicant WAEE the Court concluded from a review of the material put before the Tribunal and the failure by the Tribunal to consider particular evidence and the contentions based on that evidence that there had been 'a failure to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. Therefore, the Tribunal 'failed to discharge its duty of review and made a jurisdictional error': at [50]

23    I have already made reference to Dranichnikov v Minister for Immigration and Multicultural Affairs in distinguishing review based upon breach of the obligation to afford natural justice from a failure to undertake the statutory task. In that case, after referring to a failure to respond to a 'substantial, clearly articulated argument' as a failure to afford natural justice, Gummow and Callinan JJ then posed the relevant question concerning the significance of such a failure as including whether what had occurred could be characterised as a 'constructive failure to exercise jurisdiction' of a kind that established an entitlement to relief under s 75(v) of the Constitution: at [25]. Their Honours then found that the Tribunal had failed to undertake the first step in its statutory task which was to consider whether the group or class to which the applicant claimed to belong could be a social group for the purposes of the Convention based refugee claim (being a criterion then applicable for a claim to a protection visa): at [26]. On that basis the claim had been made out: at [33].

24    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) it was observed at [63] that:

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances.

25    In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431, the Court found that the Convention basis for a protection visa articulated by the applicant was that at the time of the hearing before the Tribunal and for the foreseeable future there were growing risks of politically-motivated violence for people like him in Zimbabwe if he was to be returned there: at [37]. The Court then reasoned that the task of evaluating that claim could not be undertaken without 'a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe': at [38]. The Court considered the reasons and concluded they did not disclose that the Tribunal understood and undertook that task: at [39]. It was concluded that there was 'a failure to form the state of satisfaction (one way or the other) required for the purposes of the review': at [46]. The failure was jurisdictional because the Tribunal had 'failed substantively to perform its statutory task': at [63].

26    In Minister for Immigration and Citizenship v SZRKT, Robertson J carefully reviewed the authorities concerning when a failure to consider a matter may amount to jurisdictional error and concluded, as noted above, that merely to ignore relevant material does not amount to jurisdictional error: at [122]. Rather, a court on review 'is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation': at [97].

27    In AHK16 v Minister for Immigration and Border Protection, the Court summarised the submission advanced by the appellant as being 'the failure to consider each objection put by a visa applicant would be a jurisdictional error'. The submission was said to rely, by analogy, on 'authorities about the failure of a decision-maker to undertake the statutory task if the decision-maker fails to consider an integer of a claim to fear persecution, fails to consider a claim to fear persecution, or fails to consider a critical fact in a claim to fear persecution': at [28]. Reference was made to Htun, Dranichnikov, NABE and MZYTS. Formulation of the contention by reference to each 'objection' was questioned: at [29].

28    In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28] Rangiah J (Reeves J agreeing) summarised the cases in the following terms:

In the context of an application for a protection visa, it has been held that whether a tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant's claims …

29    Those principles were then applied in the context of the review of a decision in the performance of the statutory power under s 501CA(4)(b)(ii) to consider whether to decline to revoke the cancellation of a visa. In Viane, I took the view that the nature of the statutory power conferred by s 501CA(4)(b)(ii) read in its context meant that the Minister was obliged to form a view as to whether to revoke the cancellation and to do so by considering each matter made manifest as a significant matter in the representation advanced to the Minister: at [64]-[75]. If the Minister did not do so then the statutory obligation would not be satisfied and there would not be a valid exercise of the power to decide whether to revoke. Ultimately, the argument advanced in that case was of a denial of procedural fairness by reason of a failure to consider a matter that the Minister was required to consider.

30    In ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141 it was held that '[a] failure to consider an important or significant claim upon which an application for a visa was based may amount to a failure to undertake the statutory review function and therefore be a jurisdictional error': at [26].

31    I do not understand any of the above formulations to express a view that diverges from the matters I stated at the outset of these reasons. Whatever description be applied, the question is whether there has been a failure to consider a matter that is of a character that means that the statutory review function entrusted to the Tribunal has not been performed in whole or in part.

The claim made by the appellant before the Tribunal

32    Before the Tribunal, the appellant (then applicant) was assisted by Victoria Legal Aid. Prior to the hearing, a statutory declaration by the appellant was forwarded to the Tribunal by Victoria Legal Aid (2016 Declaration). It began by saying that the appellant continued to rely upon information that had been given in an earlier statutory declaration dated 14 November 2012.

33    The earlier declaration described events in 2007 when conflict broke out in Parachinar between the Taliban and members of the tribe to which the appellant belongs, the Turis. The declaration referred to the Taliban influencing Sunni Muslims in nearby areas to carry out attacks in Parachinar. It described involvement by the appellant in assisting those involved in the fighting. The declaration also described how the appellant came to Australia in 2012.

34    In the earlier declaration, the appellant identified fears of serious harm arising from the conflict between the Taliban and members of his tribe which he said had continued to become worse. He stated his belief that if he returned there would eventually become no other option but to try and defend himself against the Taliban. He described the Taliban as continuing to carry out attacks against members of his tribe and religion. He described beliefs about links between the Pakistani government and the Taliban. He said that Sunni Muslims had left Parachinar as a result of the conflict and that they were spread out through parts of Pakistan.

35    The claims made in the earlier declaration were about fears of harm from conflict with the Taliban and Sunni Muslims attempting to attack Shia Muslims of the Turi tribe in Parachinar and the risk to the appellant of harm from Sunni Muslims in other parts of Pakistan if he was to relocate to another place in Pakistan.

36    After referring to the earlier declaration, the 2016 Declaration dealt with further information about the appellant's involvement with the Abbas Trust a small group doing charitable works including assisting those who were fighting to resist the Taliban. The statement about those matters occupied about 30 paragraphs. The evident significance of these matters was to support a claim that by reason of his involvement in the Abbas Trust the appellant had a risk of being targeted by the Taliban (or those who had been fighting for the Taliban).

37    The 2016 Declaration then stated:

I left Pakistan because there was nothing to live for there. The intense war with the Taliban had quietened but the threat posed to Turi Shia by the Taliban and local Sunnis had not gone away. The Taliban continued to change its face as the conflict deepened and they attracted a lot of support from Sunnis in different areas. Their violence was opportunistic and frightening. Whenever they were given a chance to attack people who were undefended they would do so. My cousin, who was working as a nurse during the war, lost her life in 2008 when the ambulance she was travelling in was stopped by Taliban. She was executed on the road. Incidents of executions and suicide bomb blasts continued, and still do. The risk to my life and that of my family just continued except that we were no longer fighting a front line battle to save our town. We all understand that Parachinar has a long repeating history of war. Every 10 years there is war. It seemed that I was trapped in something that wasn't going to change. Even within days of me making this statement, I have read of the group calling itself Islamic State making threats on Facebook to take on Parachinar.

38    It is to be noted that the statement does not refer to a fear of harm from Islamic State. Nor does it identify any activities of Islamic State in Parachinar. Further, the reference to Islamic State appears at the end of a paragraph dealing with violence by the Taliban. The reference to Islamic State does not rise above a hearsay statement concerning things that the appellant has heard in the last few days. It does not produce a copy of any Facebook posts or any details of the content of those posts. It is made in the context of detailed material of many paragraphs describing concerns about the Taliban and the activities of the appellant in supporting those who were fighting the Taliban.

39    There is then a further paragraph in the 2016 Declaration about options to live elsewhere in Pakistan. It is expressed as follows:

When I left I did not feel that it was an option to live in Islamabad or anywhere else in Pakistan. I believe the same now. I told the Immigration officer on Christmas Island that I believed the Taliban and the Sunni extremists would make me mincemeat if I returned there. I believe that statement is even more true now. The Taliban and the Sunni extremists consider Muslims who have lived in the West to be totally 'kafir'. Especially Shia Muslims. 'Kafir' means 'non-Muslim'. It·is a term used as an insult by Muslim people who believe they are righteous. The fact that I have lived in the West will put me at more risk if I return to Pakistan. Parachinar people were already known as kafir by the Taliban because we resisted them and because we were helped by NATO forces and Red Cross during the war. It would be known within the Parachinar community that I have been living in the West and seeking asylum in Australia. Just as it is known that my brother lives here. I believe that what is known in Parachinar can be made known to Taliban and other Sunni groups very easily. These groups don't any longer have an active face in Parachinar but there are threats now being made by Islamic State towards Parachinar. The people who are allied with Islamic State are the same people who were previously the Sunni Muslim from Parachinar who made war with us through the Taliban and Mujahideen. My family tell me that Parachinar has always an atmosphere of doom.

40    The paragraph quoted above begins by referring to 'the Taliban and Sunni extremists'. The reference in the concluding words to 'threats now being made by Islamic State' are to be read in that context. Significantly, the people allied with Islamic State are said to be 'the same people who were previously the Sunni Muslim from Parachinar who made war with us through the Taliban and Mujahideen'. This is not the identification of a new threat. Rather, it is a claim that the threats by Islamic State (which must be a reference to the earlier statements about what the appellant had heard concerning threats on Facebook) will motivate 'Taliban and other Sunni groups' to start to engage in violence again. Implicit in the statement is a recognition that the violence that had been occurring when the appellant was in Parachinar in 2007 and 2008 had not continued.

41    Then, the next paragraph in the 2016 Declaration begins 'I don't believe the authorities in Pakistan are willing or able to protect Turi from Sunni extremist violence wherever it happens. I believe the Pakistani government is helpless to prevent this spread of violence'. A list of names of 'Sunni extremist groups' that the appellant is aware of operating in Pakistan is then set out. It does not include Islamic State.

42    Therefore, any fair reader of the 2016 Declaration would consider the claim being raised was not one that there would be new actors that might expose those in Parachinar to violence. Rather, the claim is that based upon a concern arising from an unfounded source about threats from Islamic State, new violence may be inspired from 'the same people' who had been violent towards Shia Muslims of the Turi tribe in Parachinar in the past.

43    At the hearing, the Tribunal member observed that the events the appellant had referred to occurred quite some time ago and that the Tribunal may not think that those incidents supported a conclusion about a real chance of being seriously harmed 'by the Taliban or any other sort of Sunni group upon return'. The appellant was invited to comment. He responded:

Like, recently we got a threat in - multimedia threat from ISIL. This means the same - now, the same people change into ISIS, and now - they are now, like, you know, my family - last week I talked to my family and they were scared from - it was first from Afghanistan side that they are going to fight again against Parachinar. We are having a history of wars. Like in 1987, 1996, 2007. Now this is the 10 year completed, now something else is going to happen again.

44    This was not a claim of any specific risk. It was, in effect, an assertion that something else is going to happen based upon a claimed 10 year pattern and what appears to be a reference to the claim about Facebook threats. It is not a claim that there was, at the time that the evidence was given, violence being perpetrated in the same way that had been the case in the earlier period dealt with in the appellant's statement (being before the appellant came to Australia). It is a claim that what has happened in the past in Parachinar involving Sunni extremists in the area will happen again.

45    The Tribunal member then described the appellant's main claim as a fear from being a Turi Shia. The appellant agreed. He then took the appellant through matters in a country information report by the Department of Foreign Affairs and Trade (DFAT Report). The hearing was on 5 May 2016 and the DFAT Report had been prepared in January 2016. The 2016 Declaration was dated 21 April 2016.

46    The Tribunal member then put the following question to the appellant:

So I mean, I may think that, you know - that the chance of you being seriously harmed or significantly harmed by the Taliban or Isis, or other sort of Sunni extremist groups, or Sunnis in general, in your home area is remote, and not a real chance. So I'm interested if you have any comments about the relation.

47    The appellant responded that 'the family have returned back to Parachinar'. He referred to 'the Sunnis family which we have removed from there'. He then said 'Now they're again bringing these [Sunnis] family inside and what is the guarantee tomorrow they will [not] bring IS with them?'.

48    The Tribunal member responded:

Well I haven't seen any reports that ISIS, or Daesh, are actually operating there, and attacking - and launching attacks.

49    The proposition being put directly by the Tribunal member was that there was no evidence that ISIS was actually operating in Parachinar. The appellant responded by saying there have been warnings that the government is going to close electronic communication in the area because information will be shared with ISIS.

50    The Tribunal member then put to the appellant information that people who live abroad return to Pakistan frequently to visit relatives and they are not subject to discrimination or violence on the basis of having spent time in the West.

51    The appellant responded by beginning with the following:

First of all, we have heard about IS, IS which - they hate Shia Muslim and especially Christianity, like Western people, and there in their sharia it is to kill them.

52    The appellant then referred to the preaching of a Mullah is Islamabad who supported IS and statements about hate for Western people. He then said:

If we are killed by them, that much hate they are having, and especially from Paris, you know, like people know that I have came here, or I didn't came by study reason, or out because of helping, and they will definitely say "You have called help for western, and you came back". They will not give me a single chance.

53    After the hearing, Victoria Legal Aid filed submissions in support of the review application pursuant to leave given by the Tribunal for legal submissions to be filed. The submissions provided an 'overview of protection claims' expressed in the following terms:

It is submitted that the applicant has a well-founded fear of persecution in Pakistan in the following ways:

1.    Direct and targeted violence from Sunni extremist groups including Tehrik-e Taliban; and/or

2.    Violence by non-state actors (Sunni extremist groups) in circumstances where the state authorities are unwilling or unable to protect him on the basis of his Shia Turi identity.

54    The submissions also referred to a question whether there could be relocation to another part of Pakistan. The submissions then described the factual matters supporting the appellant's claim, referring to fighting 'between the Shia minority against the Taliban Tehrik-e Taliban (TTP) and other Sunni militants in areas in and surrounding Parachinar'. It said:

The applicant has given evidence that his fighting continued until at least 2011 and that he regarded the Sunni militant forces of Pakistan and Afghanistan as a continuing and real threat.

55    The submissions as to the protection claims concluded:

In summary, the applicant claims that his work with the Abbas Trust in and around Parachinar between 2005 and 2011, the relationship established between Abbas Trust and Thareek e Husseini in the years of war between 2007 and 2011, his shooting by a Taliban sniper in 2007, and his familial connection to his posthumously awarded cousin have all contributed to his profile in Parachinar. He claims that notwithstanding the passing of time, his profile continues in his home area.

As a result of these factors, separately and in combination, he has a continuing and well-founded fear of persecution in the form of directly targeted harm by TTO and other Sunni extremists in the Parachinar / FATA area. This is harm from which the applicant believes the Pakistani authorities to be incapable and/or unwilling to protect him. It is submitted on behalf of the applicant that if he returned to the Parachinar / FATA area he would be unable to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

56    The submissions then dealt with country information, complementary protection and relocation in some detail. At no point did they refer to Islamic State or ISIS.

The relevant claim made by the appellant before the Tribunal

57    Reading the submissions as a whole, the claim to protection described in those submissions is a claim based upon the appellant's Shia Muslim faith and his Turi ethnicity. The claim is of a well-founded fear of persecution in the form of being targeted by the Taliban and other Sunni extremists in the Parachinar area. There is no claim of a fear of persecution carried out by Islamic State. The agents by which persecution will be inflicted are said to be the Taliban and other Sunni extremists.

58    The submissions by Victoria Legal Aid on behalf of the appellant reflect the content of the statutory declarations of the appellant provided to the Tribunal and the evidence that he gave at the Tribunal. The appellant did not advance any concern or claim that Islamic State would itself intervene in Parachinar as a new source of risk of harm. At its highest, the claim made was that Islamic State or ISIS might inspire those who had been involved in fighting for the Taliban or other Sunni extremist groups to resume the fighting that occurred in the past (before the appellant came to Australia). Apart from the hearsay reference to Facebook posts and the statement (in response to a question as to why there had been no reports that ISIS was actually operating in Parachinar) that there was a warning that the government was going to close down the mobile phone and internet network in the area there was no evidence of any fighting or other activities that had been inspired by Islamic State or ISIS.

59    Submissions were advanced for the appellant on the basis that the Tribunal had failed to deal with an 'integer' of his claim which was that he feared significant harm in Parachinar from Islamic State. However, expressed in that general way, the submission does not reflect the manner in which the claim by the appellant was expressed (taking account of his statutory declarations, his oral evidence and the submissions on his behalf by Victoria Legal Aid).

60    The term integer is sometimes used when describing the extent of the statutory task to be undertaken by the Tribunal on review: see, for example, Htun at [42] and AHK16 v Minister for Immigration and Border Protection at [28]. The term integer refers to a complete entity, a thing complete in itself or a whole unit. Its use emphasises the focus on whether the overall point has been considered not whether a particular component of the evidence or argument has been specifically addressed. Likewise, as I have noted, some decisions refer to a failure to consider part of the material relied upon that is 'critical'. Others indicate that review in such cases is confined to instances where the claim is 'important or significant'. These observations must be considered in the context of the language used in the statute which requires the Tribunal to undertake a 'review'. Whether matters are described as claims or integers or critical or important or significant, the question in all cases is whether the statutory review task has been performed in the particular circumstances.

61    I do not accept that the appellant advanced an overall point that he feared serious harm from Islamic State. Rather, the claim he made was that he feared harm from those actors who had fought for the Taliban and other extremist groups in Parachinar and that there was a risk that those same people would be inspired or motivated by Islamic State to commence attacks of the kind that had occurred in the region in the past. The claim made was that there was a risk of attacks that would reflect the same religious and ethnic divides that had been behind historic fighting in the area.

62    I also do not accept that there was a claim made by the appellant to the Tribunal that there was some additional risk to him as a person returning from the West by reason of the hatred directed by Islamic State of Shia Muslims. Again the claim made was that the views of Islamic State might motivate Sunni extremists in Pakistan to cause harm to the appellant on his return. It was a point made in response to a single question. It was not referred to in the statements, declarations or other submissions. It was not supported by any evidence, in particular no country information was advanced to support the claim.

63    Significantly, the claims described were to the effect that harm would be inflicted by the Taliban and Sunni extremists. The references to Islamic State and ISIS were incidental to those claims to explain why harm may be expected to come from the Taliban and Sunni extremists (as it had in the past) even though the information was to the effect that harm of that kind had not occurred for some time and members of the appellant's family had returned to Parachinar.

64    It is those claims that were the subject of the review that the Tribunal was required to undertake.

The reasons of the Tribunal

65    The Tribunal dealt with the appellant's claims by first making findings concerning factual matters. In those findings, no reference was made to the evidence about Islamic State or ISIS. Then the Tribunal's reasons used the heading 'Turi Shia claims'. The section began by stating that careful consideration had been given to the country information 'referred to in the agent's submissions' (being those from Victoria Legal Aid). The reasons expressed the conclusion that the Tribunal member was of the opinion that risk of harm to the appellant in his home area on account of being a Turi Shia is remote (para 35). The reasons then quoted in detail from the DFAT Report. The reasons then considered aspects of the evidence and particular past occurrences and then said that those matters did not mean the risk of serious harm to the appellant 'by the Taliban or anyone else is more than remote' (para 37). Later, the reasons again referred to the risk of harm to the appellant 'by the Taliban or anyone else'. They made no specific reference to Islamic State or ISIS.

66    Having regard to the way in which the claims were expressed by the appellant, the very limited evidence advanced concerning Islamic State or ISIS, the lack of any real content to that evidence and the fact that the evidence was to support a claim of risk of future harm from those who had fought for the Taliban or other Sunni extremists in Parachinar in the past, the Tribunal's reasons do not demonstrate a failure to undertake the statutory task in considering the claims to harm by reason of the appellant's religion and ethnicity that were raised on the review. The Tribunal addressed those claims as advanced by the appellant.

67    The Tribunal then dealt with claims under the heading 'Returnee from a Western country'. The reasons quoted from the DFAT Report to the effect that those living abroad return to Pakistan frequently to visit relatives and 'DFAT assess that individuals are not subject to discrimination or violence on the basis of having spent time in the West' (para 41). There was then a finding based upon that information that the chance of the appellant being seriously harmed on the basis that he was a returnee from a western English speaking country is remote.

68    As I have described, there was no separate claim that there would be harm to the appellant by Islamic State. The oral evidence given by the appellant was to the effect that there was support for the views of Islamic State expressed by a particular Mullah and that exposed him to a risk of harm as a person returning from the West. The Tribunal dealt with that claim in a general way by referring to material in the DFAT Report that addressed the risk to those returning from the West in a general way. The DFAT Report was recent. It could not be said that there was a failure to carry out the statutory task by reason of a failure to refer specifically to the oral evidence given about ISIS hating those from the West. The issue for the Tribunal was whether there was a risk to the appellant as a person returning after being in Australia. The Tribunal dealt with that claim.

The decision of the primary judge

69    The Federal Circuit Court found that the way in which the appellant had put his claim, in effect, subsumed Islamic State into the general category of other Sunni extremist groups and did so in a context where the appellant alleged that Sunni extremists were collectively a threat to his safety: CNN16 v Minister for Immigration and Border Protection [2018] FCCA 480 at [58]. The primary judge rejected the argument that the Tribunal had failed to consider 'a core integer' of the appellant's claims before the Tribunal: [65]. His Honour found that the references to 'sectarian violence', 'Sunnis' or 'Sunni groups' included Islamic State and that the Tribunal had considered the claim of risk of harm from 'sectarian violence, the Taliban, Sunnis or Sunni groups in…Parachinar' and the claim made had been dealt with at that level of generality which also dealt with the claims made to the extent that they referred to Islamic State.

70    For reasons I have given, the primary judge was correct to reach these conclusions.

The Minister's alternative contention

71    The Minister submitted, in the alternative, that the appellant's case as to the fear of harm from Islamic State was not based upon established facts or probative material or was not a submission of substance such as to give rise to an obligation to independently consider those matters. To the extent that this was a submission that there was no separate claim made that there was a risk of harm to the appellant from a source that might be described as Islamic State that could be differentiated from the overall claim that there was a risk of harm from Sunni extremists, then I accept the submission for reasons I have given.

72    However, beyond that I doubt that it is meaningful to categorise claims into those that are considered to be claims of substance or supported by probative material when compared to other claims or to apply some notional standard as to the level of merit that a claim must have before the Tribunal is obliged to consider it in order to perform its statutory function. It is a matter for the Tribunal to evaluate the merit of a claim. As I have noted, the question for a court upon an application for relief on the basis alleged in these proceedings is best framed as an inquiry as to whether the Tribunal has performed the review function entrusted to it by the Migration Act. To undertake a review of a decision whether to grant a protection visa, the Tribunal must form the required state of satisfaction having regard to the applicable statutory criteria. The statutory task cannot be performed unless the Tribunal properly understands the claims made and consciously engages with those claims. Categorising those claims according to the strength of the material that may be said to support them for the purpose of determining whether the Tribunal has undertaken a review is to evaluate whether the statutory task has been performed by reference to the court's own assessment of the merits. The fact that a claim might be said to lack substance does not mean that the Tribunal's task does not require a consideration of the claim. A failure to consider a claim that might be said to be minor or incidental or peripheral may not be a failure to undertake the statutory task of review. Further, at the other end of the spectrum, the review task certainly encompasses a requirement to address an important or significant claim. However, these are terms that direct attention to the prominence given to a claim rather than its merit.

73    It may be that where there has been a failure to consider a claim that is considered to lack merit that may be a matter that goes to the discretion whether to grant relief. However, I am not persuaded that it would be an answer to a claim brought in the statutory context here under consideration that there had been jurisdictional error because the review task was not undertaken that the task did not extend to considering claims that did not meet some standard of merit as adjudicated by the court.

74    Therefore, I would not uphold the alternative contention on which the Minister opposed the appeal. In doing so, I note that this is not a matter that bears upon costs because very little time was taken in addressing the alternative contention and no additional material was required to be considered in order to deal with the point.

Costs

75    The appeal having been unsuccessful and no particular matters having been raised as being relevant to the discretion as to costs, there should be an order for costs in favour of the Minister. I propose to adopt the same course as to lump sum assessment of those costs as was taken in AHK16 v Minister for Immigration and Border Protection at [58] and will make orders accordingly.

76    I note that at the time of delivery of these reasons I was informed by the parties that the quantum of costs had been agreed at $6,000 and I made final orders on that basis.

Associate:

Dated:    12 October 2018