FEDERAL COURT OF AUSTRALIA

MZAGN v Minister for Home Affairs [2019] FCA 146

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs in a sum to be fixed.

THE COURT DIRECTS THAT:

3.    The first respondent inform the appellant and the Associate to Justice Rares of the amount claimed in respect of costs of the appeal in a sum not more than $5,000, on or before 5 February 2019.

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

ORDERS

THE COURT ORDERS THAT:

1.    The fixed sum referred to in order 2 made on 4 February 2019 is $4,000.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal against the decision of the Federal Circuit Court refusing to grant Constitutional writ relief against the decision of the Administrative Appeals Tribunal given on 24 February 2016 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa: MZAGN v Minister for Immigration [2018] FCCA 1996.

The issue

2    The sole ground of appeal is that the trial judge erred by failing to find that the Tribunal had not considered a clearly articulated argument based on established facts (cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22 [68], per Black CJ, French and Selway JJ), namely that, were he to return to Pakistan, the appellant may be collaterally harmed as a result of his political profile and or activities as a member of the Awami National Party or ANP (the collateral harm argument).

Background

3    The appellant is a citizen of Pakistan who came to Australia as a member of a ship’s crew that arrived in Fremantle on 10 June 2012. He deserted the ship on 14 June 2012 and applied for a protection visa on 9 July 2012.

4    On 19 October 2012, the delegate refused to grant the visa.

5    The appellant then sought review in the Tribunal. The appellant put a very large number of claims to the Tribunal for its consideration. In his written submissions, the appellant expressly abandoned two other grounds of appeal and the argument before me dealt only with the above ground. Thus, as was common ground before the trial judge and in the appeal, the facts relating to the resolution of the sole issue fall within a narrow compass.

The proceeding in the Tribunal

6    The Federal Circuit Court had set aside an earlier decision of the previous Refugee Review Tribunal and remitted the matter to the Tribunal for reconsideration according to law, leading to its decision the subject of the proceedings before the trial judge.

7    The appellant came from an area in Pakistan in the Swat Valley in Khyber Pakhtunkhwa Province or KPK province, where most of his family still reside. The Tribunal accepted that the appellant and his family were either members or supporters of the ANP. It found that, in the Swat Valley, the Taliban targeted and harmed, among others, ANP members and supporters. It found that high ranking members of the ANP were the primary targets of attacks against ANP members, but that it was plausible, based on evidence before it, that other party members might have been harmed in the commission of those attacks. It held that there was sufficient evidence to demonstrate that members of the ANP had been targeted for harm in the Swat Valley and that the victims were usually persons who were high ranking or in the leadership of the party. However, the Tribunal accepted that the level of violence in that area of Pakistan also had affected lower profile individuals. It found at [91]:

… However as some of the information demonstrates, and the evidence of the killing of the [appellant’s] brother confirms, the chance of serious harm cannot be said to be negligible or not real. The Tribunal considers that the chance that the [appellant] could be seriously harmed because of his and his family’s involvement with the ANP and Peace Committees, which can be also described as being in opposition to the Taliban, is real.

8    The Tribunal found (and it was not an issue before his Honour or in the appeal) that peace committees’ activities and threats to, and acts of the Taliban against, persons who were members of peace committees were localised within the Swat Valley. Accordingly, its findings about members of peace committees did not relate to its findings the subject of the present appeal, namely that it was safe for the appellant to relocate specifically to Lahore. That was because the peace committees did not operate outside their local areas in the Swat Valley and, so, there was no risk of harm to members of peace committees in their capacity as members, outside their local areas.

9    The Tribunal found, in the context of the longstanding nature and seriousness of the violence in the Swat Valley, that State protection was not available to the appellant in the Swat Valley because the Taliban was continuing to engage in terrorist attacks.

10    In that scenario, the Tribunal turned to examine whether it was reasonable for the appellant to relocate to another place in Pakistan were he to return there. The appellant had claimed that he would not be safe from the Taliban anywhere in Pakistan because it had a network throughout the country that would seek to harm him and search for him everywhere. The Tribunal rejected that claim and found that country information indicated that the security situation varied greatly within different parts of Pakistan and there were areas within the country that remained relatively free from the threat of militant, sectarian and politically motivated violence, particularly outside of the Federally Administered Territory Areas (FATA), KPK Province and another province. The Tribunal noted that a report of the Department of Foreign Affairs and Trade (DFAT) indicated that the Taliban was a loose network of militant Sunni groups that was most active in KPK Province and the FATA.

11    The Tribunal found that country information indicated that the Taliban was most active in KPK Province and the FATA, that it had attacked relatively few targets in urban areas in other parts of Pakistan, and that those attacks were:

targeted against military or other authorities or minorities, none of which the Tribunal considered the [appellant] to be or would be considered to be. [sic]

12    The Tribunal considered the appellant’s circumstances, noting that it had accepted that there was a real chance and real risk of him coming to serious and significant harm (within the meaning of ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth)) arising from his and his family’s involvement with the ANP and the peace committee in his home region. But, it did not accept that such real chance or risk existed across Pakistan generally. It did not accept that the appellant or his family had such prominence in the ANP or local peace committees that the Taliban would seek to harm him in other locations within Pakistan because of his and his family’s activities within the ANP and peace committees in the Swat Valley region or KPK Province more generally. Next it turned to consider the reality of the risks to the appellant based on his membership or support of the ANP. The Tribunal found at [100]:

The Tribunal has further not identified or been provided with country information that shows that ANP members from the Swat Valley region, like the [appellant] or his family, are being harmed across Pakistan because of their activities for the ANP. The [appellant] provided an article where an ANP village president of Dokada, in the Buner district of KPK was killed in Karachi. The Tribunal notes that person held a position of responsibility within the ANP, unlike the [appellant] or his family. The Tribunal does not consider that the responsibilities or activities of the [appellant] or his family for the ANP in the Sway Valley would be a reason for the Taliban to seek and harm the [appellant] outside of this region of Pakistan. While the family may have been longstanding supporters of the ANP, the Tribunal does not accept that such involvement and support would lead the Taliban to seek to harm the [appellant] in locations other than in his home region. (footnotes omitted, emphasis added)

13    The Tribunal found that, based on country information, the position of most political parties in Pakistan was against the Taliban and their violent activities, although opinions differed as to whether to fight or negotiate with the Taliban. It found that the ANP had been one of the strongest parties in declaring its anti-Taliban opinion and that the then government of Pakistan also opposed the Taliban and was waging an operation against its activities in its western regions. It found that the appellant’s actual and imputed political opinion was the predominant opinion of the broader population of Pakistan. It accepted that the appellant would be seen by the Taliban to be against it and that his actual activities within the ANP and peace committee had demonstrated that he was. But, the Tribunal did not accept that the Taliban would seek to harm the appellant, wherever he was within Pakistan, because of his actual or imputed anti-Taliban political opinions.

14    The Tribunal specifically did not accept that the appellant faced a real chance of serious harm or a real risk of significant harm in every area of Pakistan were he to relocate because of his and his family’s activities in the Swat Valley in support of the ANP or peace committee or because of his and his family’s actual or imputed anti-Taliban political opinions, either individually or cumulatively. In other words, it did not accept that, outside of the Swat Valley and KPK Province regions, the appellant would be at risk of harm by reason of his membership or support of the ANP.

15    The Tribunal accepted that the appellant’s activism demonstrated that it was plausible that, were he to return to Pakistan, he would seek to involve himself in various activities, including in support of the ANP, in other locations in Pakistan. Crucially, at [107] the Tribunal found:

The Tribunal does accept as plausible that the [appellant] may involve himself in ANP activities on return to Pakistan. As discussed with the [appellant], the ANP exists across Pakistan, including in Karachi, Islamabad and Lahore. The Tribunal discussed some difficulties the ANP had had in Karachi recently, including the killing of members as it struggled in the political climate of that city. The Tribunal identified that the ANP had an active branch in Lahore, including standing a candidate for election in the 2013 national election. While the ANP is not as influential in the Punjab as in other areas of Pakistan, it remains active. The Tribunal considers that the [appellant] would be able to participate in his political activities on behalf of the ANP should he choose to do so. The Tribunal has not identified information that ANP members in Lahore are being harmed, the Tribunal finds the [appellant] does not have a real chance of serious harm or a real risk of significant harm for this reason. (emphasis added, footnotes omitted)

16    It is appropriate to interpolate here that the appellant argued that the opening clause in the final sentence in [107] (that I have italicised) should be understood as a finding that the Tribunal had not identified information that “ANP members from Lahore are being harmed” as opposed to a more general finding about harm to ANP members who originated from any other part of Pakistan, including the Swat Valley. The Tribunal continued at [108]:

The Tribunal does not accept that the [appellant] has a real chance of serious harm or a real risk of significant harm due to Taliban activity across Pakistan. The Tribunal does not consider that the [appellant], an ANP and Peace Committee member and supporter in the Swat region, and having an anti-Taliban opinion, would be of interest to the Taliban or any other insurgent group in other locations within Pakistan. The Tribunal does not accept that the Taliban would seek to harm the [appellant] in locations outside of Swat and KPK more generally. The Tribunal considers that there are locations within Pakistan where the [appellant], as an ANP member and supporter, a Peace Committee member, and as someone who does not support the Taliban, individually and cumulatively, can relocate to where he does not face a real chance of serious harm, or a real risk of significant harm. (emphasis added)

17    The Tribunal then dealt (at [109]-[113]) with the appellant’s migration agent’s contention that he was at risk of being harmed in the violence that occurred in Lahore, which the agent had characterised as both general and sectarian in nature, without identifying to the Tribunal precisely what the alleged sectarian violence was. During the course of the hearing in the Tribunal, the appellant’s migration agent argued that high level members of the ANP had been the subject of a large proportion of such attacks, but that ordinary members of the ANP could sometimes be targeted and become victim to generalised violence because of him or her “being in the proximity to high-level members when they are attacked”.

18    The agent referred to a DFAT report on Pakistan dated 14 August 2015 (the 2015 DFAT report) that noted that DFAT had assessed that ANP members had been subject to ongoing violence in the KPK Province and Karachi. The DFAT report noted that, although the targets of that violence were primarily high level leaders, the attacks also affected others who were low level party members because they were in the vicinity of the high level person the subject of the attack. The Tribunal member and the agent discussed the 2015 DFAT report in an exchange recorded in the transcript of the hearing in the Tribunal.

19    The Tribunal addressed the argument about the risk that the appellant would be exposed to generalised and sectarian violence throughout Pakistan, were he to return. It found that, based on the 2015 DFAT report, there was sporadic generalised violence in Lahore, but the risk of the appellant being harmed in that violence was one faced by the population generally and not by him personally. Accordingly, it did not accept that he had a real chance or a real risk of harm for that reason.

20    The Tribunal also considered (at [141]-[144]) whether any risk of serious or significant harm, as it might find, should be taken into account in an overall assessment as to whether there was a real risk or real chance, as opposed to a remote prospect, of the appellant suffering harm in the course of deciding whether his relocation from the Swat Valley to another part of Pakistan would be reasonable. It found that, having considered the appellant’s circumstances individually and cumulatively, it was reasonable, in the sense of practical, for the appellant to relocate in Pakistan and that his and his family’s involvement in anti-Taliban opinion and activities and groups, such as the peace committee and ANP, together with generalised violence, would not be a basis to conclude that it would be unreasonable for him to relocate in Pakistan. The Tribunal concluded at [145]:

Accordingly, on the basis of the evidence before it, the Tribunal is not satisfied that the level of chance that the [appellant] would suffer harm in Lahore or another urban area outside KPK and the FATA for reasons of his and his family’s actual or implied political opinion against the Taliban, his and his family’s involvement with the ANP and Peace Committees, his Pashtun ethnicity or for any membership of a particular social group or any other reason would make it unreasonable for him to relocate to Lahore, or another urban area outside KPK and the FATA. For the reasons given above the Tribunal considers that it is reasonable, in the sense of practicable, having regard to all of the [appellant’s] circumstances, individually and cumulatively, for him to relocate to Lahore, or another urban area outside KPK and the FATA where, as the Tribunal has have found that there is, objectively, no appreciable risk of the occurrence of the persecution which he fears. (emphasis added)

21    It found that there was not a real chance that the appellant would be persecuted for reasons of his political opinion, imputed or otherwise, or for any other Refugees Convention reason, either individually or cumulatively, then or in the reasonably foreseeable future were he to relocate to another area of Pakistan, such as Lahore, or another urban area outside KPK Province and the FATA. Therefore, it found that he did not have a well-founded fear of persecution were he to return to Pakistan then or in the reasonably foreseeable future for the purposes of s 36(2)(a) of the Migration Act.

22    The Tribunal briefly dealt with the appellant’s complementary protection claims under s 36(2)(aa). It accepted that the appellant might face a real risk of significant harm were he to return to the Swat Valley for the reasons that it had given in relation to his Refugees Convention claims, but that, as it had earlier found, relocation to another part of Pakistan was both safe and reasonable in all his particular circumstances. It concluded that there was not a real risk that the appellant would suffer significant harm for any other reason as a necessary and foreseeable consequence of his removal to Pakistan and that, therefore, he did not satisfy the criteria for complementary protection under s 36(2)(aa).

The proceeding before the trial judge

23    The trial judge noted that the collateral harm argument had been advanced by the appellant’s counsel as a fall-back position put “in the running” before his Honour. His Honour accepted the Minister’s submission that the Tribunal had dealt with the collateral harm argument when it considered whether it was reasonable for the appellant to relocate from the Swat Valley. He found that the Tribunal had considered the appellant’s circumstances and, thus, addressed his risk of harm from collateral damage were he to relocate. The trial judge held that the Tribunal had regard to country information that indicated that there was no information to suggest that ANP members were being harmed across Pakistan.

24    His Honour said (relying on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [47], per French, Sackville and Hely JJ), that the Court should be slow to find that the Tribunal had failed to consider a claim where, as in the present case, its reasons were otherwise detailed and comprehensive. He found that, read fairly and as a whole, the Tribunal’s reasons were comprehensive and he concluded that it had considered and dealt with the collateral harm argument. Accordingly, the trial judge determined the application with costs.

The appellant’s submissions on appeal

25    The appellant argued that his Honour erred in that assessment and that the Tribunal had evaluated the collateral harm argument in the context of relocation only by reference to whether the Taliban would target the appellant in Lahore by reason of his own profile. He contended that the Tribunal had not evaluated the collateral harm argument by reference to whether the appellant’s likely activities might expose him to collateral harm through his association with, or proximity to, a person with a higher profile whom the Taliban would target, given that the Tribunal had accepted that the appellant would engage in further political activity were he to return. He submitted, as I noted in [16] above, that the critical reasoning of the Tribunal in [107] should be understood as being confined to a finding that the Tribunal had not identified information that ANP members who came or originated from Lahore had been harmed. He argued that the Tribunal had failed to make any finding about whether ANP members, such as the appellant, who originated from locations such as the Swat Valley, would be harmed (or that there was a real chance or risk that they would be harmed) when they were present in Lahore.

Consideration

26    I reject the appellant’s argument. In my opinion, the Tribunal’s reasons, read as a whole and [107], in particular, squarely addressed the collateral harm argument. The Tribunal found pellucidly that there was no information before it that any ANP members who were present in Lahore, regardless of the part of Pakistan whence they had originated, had been harmed. That finding was open to the Tribunal on the material before it. Indeed, the Tribunal distinguished (in [107]) the position of ANP members in Lahore from that of those in Karachi, where it had accepted that one prominent member had been killed in the then recent past.

27    Moreover, the Tribunal had addressed (in [109]-[113]) the potential for the appellant to be affected by violence that was not targeted specifically at him as an ANP member, but by reason of his presence on the scene, regardless of whether ANP members or other persons present may be the target of generalised or sectarian violence. Ultimately, the Tribunal’s findings (in [145]) fairly summarised its conclusion that, objectively, there was no appreciable risk of the occurrence of the persecution or significant harm which the appellant feared outside KPK Province and the FATA, so that it would not be unreasonable for him to relocate to Lahore or another urban area outside those two regions at [145].

28    As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 at 272 (and see too: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 195-196 [59]-[60], per French CJ, Bell, Keane and Gordon JJ), “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.

29    The Tribunal’s reasons were careful and comprehensive. Although the appellant’s argument sought to construe [107] as a finding that related only to ANP members who, unlike the appellant, originated in Lahore, a fair reading of the Tribunal’s reasons, and specifically [107], in the context of its reasons as a whole, demonstrates that that argument is untenable (cf: WAEE 236 FCR at 604 [47]).

30    I am also of opinion that the appellant’s argument that the Tribunal should have considered whether he, as a person and an ANP member or supporter who originated from the Swat Valley, was at some differential risk of being collaterally harmed in Lahore as a result of his political profile and or activities associated with the ANP is in the teeth of the Tribunal’s finding that it had not identified any information that any ANP members in Lahore had been harmed.

31    Moreover, to the extent that the appellant’s argument asserted that the Tribunal should have given separate consideration to whether he or others, who originated from the Swat Valley and supported the ANP might be harmed when in Lahore, that argument amounted to a contention that he would be targeted specifically, as opposed to being the victim of collateral harm by reason of his presence when some other, more high profile, ANP member was at an event or location in Lahore and targeted for harm by the Taliban. The logical non-sequitur of this variant of the appellant’s argument is obvious and negates the construction which he wished to place on [107].

Conclusion

32    For these reasons, I am of opinion that the appeal must be dismissed with costs to be fixed after the Minister informs the Court tomorrow of the amount (estimated to be less than $5,000) that he seeks.

Postscript

33    I note that on 5 February 2019, the Minister said that he sought costs of $4,000 and I then made that order in chambers.

Associate:

Dated:    15 February 2019