FEDERAL COURT OF AUSTRALIA

ACT15 v Minister for Immigration and Border Protection [2019] FCA 406

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a Pakistani who arrived in Australia by boat on 19 December 2011. He left Pakistan in October 2011 and had made his way to Indonesia.

2    On 9 May 2012, the appellant applied for a protection visa. That application was refused by the Minister’s delegate and the refusal was affirmed by the Refugee Review Tribunal (the RRT). The appellant’s application for judicial review of the RRT decision failed in the Federal Circuit Court (DZADQ v Minister for Immigration & Anor [2014] FCCA 85) but, on appeal, that decision was set aside and the RRT decision was quashed: DZADQ v Minister for Immigration and Border Protection [2014] FCA 754.

3    The RRT (differently constituted) then considered the application for review afresh. By decision given on 27 January 2015, the refusal of the grant of a Protection visa was affirmed. The appellant’s application to the Federal Circuit Court (the FCC) under s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of that decision failed: ACT15 v Minister for Immigration & Anor [2016] FCCA 626.

4    The appellant now appeals again to this Court.

5    The appeal was heard on 17 August 2016 and judgment was reserved. At the hearing, the Minister was granted leave to file and serve a notice of contention concerning an aspect of Ground 4 in the appellant’s Notice of Appeal, and directions were given for the exchange of short written submissions concerning that Notice.

6    Subsequently, the Minister’s solicitors drew the attention of the appellant and of the Court to the fact that a certificate issued pursuant to s 438(1)(a) of the Act had been before the RRT when it had made its decision. The parties considered that this could mean that the judgment on the appeal may be affected by the then recent decision in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 and in turn by the anticipated decision by the Full Court of this Court in Minister for Immigration and Border Protection v Singh. They joined in asking the Court to postpone the delivery of judgment in this matter until after the delivery of judgment in Singh.

7    Later, the parties asked the Court to postpone the delivery of judgment still further pending the determination of the application to the High Court for special leave to appeal from the judgment in Singh v Minister for Immigration and Border Protection [2016] FCAFC 183. Special leave to appeal in Singh was refused on 12 May 2017.

8    On 26 May 2017, the appellant, acting in accordance with leave granted on 16 May 2017, filed an Amended Notice of Appeal. The amendment involved the addition of a new Ground 6 by which the appellant alleged that he had been denied procedural fairness by not having had the opportunity to make submissions concerning the s 438(1)(a) certificate.

9    The Court listed the matter for submissions on the new Ground 6 on 14 August 2017. However, the Court vacated that hearing at the request of the parties, pending the decision of the Full Court of this Court in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, (2017) 253 FCR 1; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, (2017) 253 FCR 21; and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198, (2017) 253 FCR 36. Later, the Court postponed the further hearing pending the determination by the High Court of the application for special leave to appeal in CQZ15, and the subsequent appeal.

10    Following the delivery of judgment by the High Court in CQZ15 v Minister for Immigration and Border Protection [2019] HCA 3 on 13 February 2019, the Court listed the matter for further submissions. However, the applicant informed the Court on 15 March 2019 that, in light of the judgments in CQZ15 and BEG15, he abandoned Ground 6 (as well as a foreshadowed amendment of that ground). Both parties then invited the Court to give judgment on the appeal on the grounds argued on 17 August 2016.

Background

11    The appellant is a Shia Muslim and is now 26 years old. In the RRT, he claimed to have a well-founded fear of persecution in Pakistan on several grounds. First, he claimed to have a fear of persecution on the ground of his religion. Shia Muslims are in the minority in Pakistan. The Pakistani Taliban and affiliated or similar extremist groups have carried out violent attacks in recent years against Shia people, including clerics, community leaders and prominent figures, and against Shia mosques. The appellant’s father is a high ranking official in the Pakistan Post Office and the appellant claimed that both he and his father have been the targets of sectarian threats and attacks.

12    Secondly, the appellant claimed to have a well-founded fear of persecution because of his membership of a number of social groups being:

(a)    young male persons who have attempted to flee from Pakistan;

(b)    young educated male persons who do not share the views of the majority in Pakistan;

(c)    family members of a high ranking officer of a government department targeted by the Taliban;

(d)    persons who have departed Pakistan through illegal means, fled to the west and have lodged an application for asylum; and

(e)    family members of individuals who have been targeted by the Taliban and/or their affiliated insurgency groups.

13    Thirdly, the appellant claimed to fear serious harm from Sunni militia groups and extremists due to his real or imputed political opinions against the Taliban and/or Taliban affiliated groups and his membership of two further particular social groups, namely “family members of Shia/Pakistani government workers” and “failed Pakistani asylum seekers returning from Western countries”.

14    The RRT member who determined the appellant’s application for review on the second occasion had a volume of written material. In addition, he heard oral submissions from the appellant (who was assisted in the hearing by his migration agent). Unless indicated otherwise, I will refer to the RRT which affirmed the delegate’s decision for the second time as the “RRT” and to the RRT as originally constituted and whose decision was set aside as “the first RRT”.

15    The RRT determined the appellant’s application by reference to the definition of “refugee” in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Refugees Convention) and by a reference to ss 91R and 91S of the Act which were then in force. Sections 91R and 91S were repealed on 18 April 2015. Sections 5H and 5J came into operation on the same day. As this was after the RRT decision, they did not apply in the appellant’s circumstances.

16    The RRT member accepted a number of aspects of the appellant’s evidence. These included:

(a)    the appellant was born in Parachinar in the Kurram Agency but left Parachinar when he was three years old, at [6];

(b)    subsequently the appellant had lived variously in Gujrat in Punjab, Kohat, Gujranwala, Nowshera and then Peshawar with the moves apparently being related to his father’s work, at [6];

(c)    the appellant had lived in Peshawar between 2005 and 2011, and completed Year 12 schooling in 2010, at [6], [60];

(d)    Peshawar is the appellant’s home, at [74];

(e)    the appellant’s father holds a senior position in the Post Office in Pakistan and before that a senior position in Postal Life Insurance, at [6], [51];

(f)    the appellant and his father are Shia Muslims and, when the appellant lived in Peshawar, he had attended the mosque at Muharram, at [59], [70];

(g)    there have been terrorist attacks in Peshawar, although these have tended to be attacks on government buildings and the police, at [68]

(h)    there have been attacks on Shia targets and Shia leaders and clerics have been killed, although the evidence did not suggest that this was occurring in Peshawar, at [68]

(i)    there is some level of risk to the appellant in the context of terrorist attacks which have occurred in Peshawar, and which continue to occur, at [73]; and

(j)    if returned to Pakistan, the appellant may be questioned as to how he left and may be charged with an offence if he had travelled on a forged travel document or with a fake visa, at [81].

17    However, at the same time, the RRT member did not accept significant aspects of the appellant’s claims. He said that he did not regard the appellant as a witness of truth and concluded that he had fabricated aspects of his claims in order to strengthen his claim for a protection visa. It is apparent that in forming these views about the appellant’s claims, the RRT member had particular regard to inconsistencies and discrepancies which he perceived in the evidence, submissions and material which the appellant had provided originally to the Minister’s delegate, to the first RRT, and in relation to the further consideration before him.

18    In particular, the RRT member did not accept the appellant’s claims that, in February 2010, his father had been stopped and threatened by the Taliban when travelling from Peshawar to Mardan, at [13]; that he (the appellant) had been subject to a threat, a possible kidnapping, or at least suspicious activity by the Taliban in May 2010; that following such an incident, the appellant’s father had sent him to Parachinar where he had remained until November 2010; that the appellant had moved to Islamabad in May 2011 because of threats he had received while in Peshawar, at [41]; that either he or his father had been subject to threats by the Taliban, or that they had in any way been singled out, at [51] and [71]; and that the appellant had not left Pakistan travelling on a forged travel document or a fake visa. The RRT member concluded that the appellant had not established that he had the requisite well-founded fear of persecution and, further, that there was no basis upon which it could be held that the appellant satisfied the criteria for complementary protection under s 36(2)(aa) of the Act.

19    In the proceedings in the FCC, the appellant alleged a number of jurisdictional errors by the RRT. It is convenient to consider those matters when addressing the grounds of appeal to this Court.

Ground 1: A failure to consider one of the appellant’s claims?

20    By Ground 1, the appellant contended that the FCC Judge should have found that the RRT had failed to consider his claim that he feared persecution by reason of his membership of the particular social group constituted by young male persons who have attempted to flee from Pakistan. The appellant asserted that in this respect the RRT had failed to consider a component integer of his claims and had thereby committed jurisdictional error of the kind discussed in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42].

21    The RRT did refer to this claim, saying:

[84]    For the reasons given above I likewise do not accept that there is a real chance that [the applicant] will be persecuted due to … his membership of the particular social groups of “young male persons who have attempted to flee from Pakistan”, “persons who have departed Pakistan through illegal means, fled to the West and lodged an application for asylum” or “failed Pakistani asylum seekers returning from Western countries”. …

22    The FCC Judge rejected this ground of the application for judicial review, at [34].

23    First, the FCC Judge considered that, in the context in which the RRT member had referred to this basis for the claim to a protection visa and had given comprehensive reasons for the rejection of the claim generally, the Court should not readily infer that he had failed altogether to consider the particular claim, at [34]. The FCC Judge relied in this respect on the following passage in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected.

24    Secondly, the FCC Judge held that the RRT member had given detailed consideration to the possible consequences of the appellant’s attempt to “flee Pakistan” in the course of his consideration of the other claims, and had said that it had been unnecessary for the member to “make a finding on the particular matter because it was subsumed in findings of greater generality or because a factual premise – the adverse consequences of the [appellant’s] attempt to “flee from Pakistan” – upon which it rests [has] been rejected”, at [34].

25    Thirdly, the FCC Judge considered that, while the applicant had made the “bald claim” that he was a member of a social group comprised of “young male persons who have attempted to flee from Pakistan”, he had not put forward any additional evidence, material or argument to support the claim, at [34].

26    The appellant’s counsel did not challenge the FCC Judge’s characterisation of the RRT reasons as “comprehensive”. This was understandable because, looked at overall, the reasons of the RRT indicate close attention to the appellant’s claims and to the matters put forward in support of them.

27    The appellant submitted, however, that, contrary to the words “for the reasons given above” with which the RRT member prefaced his rejection of this basis of his claim, the member had not in fact provided any reasons for his rejection of there being a real chance that he would suffer persecution by reason of his membership of a social group constituted by young male persons who had attempted to flee Pakistan. He contended that in this circumstance the FCC Judge should have concluded that the RRT had not considered his claim, in the sense of engaging in the requisite intellectual process with that claim: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [57]. Counsel for the appellant referred in this respect to the importance of identifying accurately the particular social group alleged by a claimant in order that the provisions in the Act may be applied properly: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [36].

28    Before addressing that contention, it is appropriate to indicate the findings which the RRT member did make on this general topic. In a section of the reasons under the heading “Illegal departure/failed asylum-seeker claims”, the RRT addressed aspects of the appellant’s claim that he faced a real chance of harm if returned to Pakistan. The RRT member recorded a submission made on the appellant’s behalf that, because he had “fled to the West with the assistance of a smuggler, he had departed Pakistan using illegal means”, with the consequence that he would “face persecution as a failed asylum-seeker”. The member noted that no evidence had been provided to support that submission and that other information provided on behalf of the appellant stated specifically that “no action would be taken against failed refugees unless there was some fault in their documentation”, at [75]. The RRT member also noted that other material upon which the appellant had relied in this regard did not “relate to failed asylum-seekers”, at [75].

29    Next, the RRT member noted at [76], the submission made on the appellant’s behalf that he would be imputed with an anti-government or pro-western political opinion “due to his departure using the assistance of a smuggler in Pakistan ‘such that he employed illegal means to flee the country’”, his journey to Australia, his application for asylum and his lack of any travel document meaning that he could not return to Pakistan without coming to the attention of the Pakistani authorities.

30    Next, at [78], the RRT member referred to the appellant’s submission that there had been “many incidents or attacks on people who had lived in Western countries and had come back”. At [79] the RRT member recorded that he had put to the appellant that the information to which his representatives had referred indicated that failed asylum-seekers were not punished for having sought asylum in other countries.

31    The RRT member then went on to indicate that he did not accept that the appellant had left Pakistan on a forged travel document or with a fake visa. This had the consequence, the member concluded, that there was no real chance that the appellant would be charged with any offence if returned to Pakistan from Australia now or in the reasonably foreseeable future, at [82]. The member then continued:

I do not accept on the evidence before me that there is a real chance that [the applicant] will be persecuted as a failed asylum-seeker if he returns to Pakistan. Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 77 above, I do not accept that there is a real chance that [the applicant] will be persecuted because of the time he has spent in a Western country, namely Australia, if he returns to Pakistan now or in the reasonably foreseeable future. As I put to [the applicant], I do not accept that there is a real chance that he will be persecuted because he left Pakistan perfectly legally and applied for asylum in Australia. I do not accept on the evidence before me that there is a real chance that he will be persecuted because he will be imputed with anti-government or pro-Western political opinions due to his departure from Pakistan with the assistance of a smuggler, his journey to Australia, his application for asylum and his lack of any travel document meaning that he will come to the attention of the Pakistani authorities if he is returned to Pakistan, as submitted by his representatives.

(Emphasis added)

32    On the hearing of the appeal, counsel for the appellant submitted that the finding that the appellant had not left Pakistan by illegal means and would not face detriments on that account did not address all aspects of his claims, because his position as a person who had fled Pakistan by lawful means and had then sought asylum had not been addressed. That is to say, it was the circumstance that the appellant had fled Pakistan which was the significant matter, and not the means by which he had done so.

33    The difficulty for this submission is that it is evident that the RRT did address this contention squarely. The sentence in [82] which I have emphasised indicates that that is so.

34    Contrary to the appellant’s submissions, the RRT member had given “reasons above” to which he referred to in [84] of his reasons.

35    It is true that in this sequence of reasons, the RRT member did not refer explicitly to the applicant being a member of a social group comprised of “young male persons who have attempted to flee from Pakistan”. However, the RRT member did consider generally the position of persons who have attempted to flee Pakistan. The appellant had not provided any information to the RRT suggesting that young male persons who had attempted to flee Pakistan are treated differently on return from other persons who have attempted to do so.

36    In these circumstances, I consider that the FCC Judge was correct to hold that the RRT member had considered this basis for claim. That basis had been referred to explicitly in [84] of the RRT’s reasons and the RRT had addressed the position on return to Pakistan of those who had attempted to flee the country.

37    For these reasons I consider that the conclusion of the FCC Judge on Ground 1 has not been shown to be wrong.

Ground 2: Complementary protection and Convention grounds

38    By Ground 2, the appellant contended that the FCC Judge should have found that the RRT erred by determining his claim for complementary protection on the basis that the real risk of significant harm to which s 36(2)(aa) of the Act referred had to be harm by reason of a Convention ground.

39    Section 36 of the Act provides (relevantly):

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

…

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

40    The appellant’s contention was that the RRT member had failed to consider the complementary protection claim appropriately because he had thought that the real risk of significant harm to which s 36(2)(aa) refers had to be harm by reason of one or other of the five Convention grounds contained in the Refugees Convention, and now in s 5J(1)(a) of the Act.

41    The appellant referred to passages in [87] and [89] which he said reflected this misconception by the RRT. In [87], the RRT member said:

[87]    … I do not accept that there is a real risk that [the applicant] will be marginalised in Pakistani society as a Shia Muslim or that he will face discrimination for reasons of his religion amounting to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm because he is a Shia Muslim or a Shia Muslim from Parachinar in particular, because his father holds a senior position in the Post Office in Pakistan, because of any political opinion which he may hold or which may be imputed to him or because of his membership of any of the particular social groups which he and his representatives have suggested based on these circumstances.

…

[89]    Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm because he left Pakistan with the assistance of a smuggler, because he sought asylum in Australia, because of the time he has spent in a Western country, namely Australia, because of any political opinion which may be imputed to him or because of his membership of any of the particular social groups which he and his representatives have suggested based on these circumstances.

(Emphasis added)

42    It is implicit in the reasons of the FCC Judge that he accepted the premise for the appellant’s submission, namely, that the harm to which s 36(2)(aa) refers is not confined to harm caused for a Convention reason: SZSXE v Minister for Immigration and Border Protection [2014] FCA 867 at [50]-[61]. Nevertheless, the Judge rejected the appellant’s contention because he considered it to be based on a misunderstanding of the RRT member’s reasoning. The FCC Judge considered that the RRT member had couched his conclusions in terms of harm because of a Convention reason because that was the way in which the appellant’s submissions had, in the main, been made to him. This led the FCC Judge to conclude:

[39]    … It is hardly conceivable that the Tribunal could consider whether there was a real risk of significant harm without reference to the reasons advanced by the applicant and, in this case, that necessarily involved reference to the Convention grounds advanced by the applicant.

43    In my opinion, reasoning of this kind is appropriate in circumstances like the present. If an applicant puts forward claims in a certain way, it is to be expected that the claims will be determined by reference to the matters on which the applicant relies.

44    However, the FCC Judge considered in any event that the RRT member had not confined his consideration to harm occurring for Convention reasons. In my opinion, this line of reasoning by the FCC Judge is also sound. The RRT member did refer to sources of potential harm which did not rest on Convention reasons. For example, in [88] the RRT accepted that there was some level of risk to the appellant arising from terrorist attacks in Peshawar such as the suicide bombing in a market in October 2009, the attack on a political rally in April 2010, and the attack on the US Consulate in Peshawar in the same month. Further still, the RRT member referred to the risk of the appellant suffering harm because he had left Pakistan, as he claimed, with the assistance of a people smuggler. These were not Convention based reasons, even if the attack on the rally and the US Consulate had a political motivation. The RRT member noted that the risk of harm resulting from terrorist attacks, attacks on political rallies and attacks of the kind which had been made on the US Consulate were excluded from consideration by s 36(2B)(c) of the Act, being risks faced by the population of Pakistan generally and not by the appellant personally. It was not suggested that that conclusion involved error.

45    This ground of appeal fails.

Ground 3: Irrationality in finding sectarian/terrorist attacks were not for a Convention reason?

46    By Ground 3, the appellant contended that the RRT member’s conclusion that the sectarian and/or terrorist attacks which occurred in Peshawar were not for a Convention reason was unreasonable in the legal sense.

47    The RRT accepted that sectarian and terrorist attacks may continue in Pakistan and in Peshawar in particular, at [73]. However, the member was not satisfied of the nexus requirement, that is, that the fear of harm asserted by the appellant was “by reason of” one or more of the five Convention grounds.

48    The RRT member concluded as follows:

[73]    I do not accept on the evidence before me that there is a real chance that [the applicant] will be killed or injured or otherwise persecuted in the context of the sort of sectarian attacks which I accept continue to take place in Pakistan if he returns to his home in Peshawar now or in the reasonably foreseeable future. … ... I accept that there is some level of risk to [the applicant] in the context of the sort of terrorist attacks in Peshawar to which his representatives referred in their submissions and which I accept continue to occur in Peshawar such as the suicide bombing in a market in October 2009, the attack on a political rally protesting against electricity cuts in April 2010 and the attack on the US Consulate in Peshawar in the same month. However, I do not accept that one or more of the five Convention reasons is the essential and significant reason for the persecution to which [the applicant] may be exposed in this context as required by paragraph (sic) 91R(1)(a) of the Migration Act. I consider that the risk to him in this context is the same as that [of] any other citizen of Pakistan.

49    The complaint made by the appellant in the FCC about this finding of the RRT was as follows:

[2(c)]    The second respondent erred in failing to accept that the harm which the applicant was at risk of suffering from sectarian (i.e. religious) terrorist attacks in Peshawar was not for a Convention reason.

50    As elaborated in the submissions in the FCC, the appellant’s complaint was that the attacks to which the RRT member referred were sectarian in nature and, accordingly, “tied” to a Convention ground.

51    The FCC Judge rejected that contention, holding:

[42]    I do not accept this characterisation of the Tribunal’s reasons. The attacks referred to by the Tribunal were not expressly identified as sectarian or non-sectarian but their description: an attack on a market and a political rally protesting electricity cuts, implies that they were indiscriminate terrorist attacks. The attack on the US Consulate was not, presumably, a sectarian attack. The point of the Tribunal’s discussion of these attacks was to illustrate its conclusion that, while terrorist attacks had occurred in Peshawar, these were generally not directed at ordinary Shias. The ground appears to assert, in substance, that the Tribunal erred in finding facts. Unless there is irrationality or unreasonableness, which is not asserted, this is not a proper ground of judicial review. This ground is rejected.

52    On the appeal, the appellant did not impugn this finding directly. Instead, he contended that the FCC Judge should have found that the RRT had committed jurisdictional error “by acting irrationally, illogically, or unreasonably in finding that the sectarian and/or terrorist attacks which occurred in Peshawar were not for a Convention ground.”

53    This ground of appeal raises new matters, that is, matters which had not been argued in the FCC. First, the appellant’s complaint in the FCC had concerned only terrorist attacks of a particular kind, namely, attacks for a sectarian purpose, whereas the appellant now seeks to impugn the RRT’s reasons by reference to terrorist attacks more generally. Secondly, the complaint of the appellant in the FCC was that the RRT had “erred in failing to accept that the harm which the applicant was at risk of suffering from sectarian (i.e. religious) terrorist attacks in Peshawar was not for a Convention reason.” This was a complaint about the RRT’s failure to accept a matter, and not a complaint about irrationality, illogicality or unreasonableness. The FCC Judge dealt with the matter on that basis.

54    As can be seen from [42] quoted earlier, the Judge noted that irrationality or unreasonableness had not been asserted in relation to this finding and, on that basis, had found that it was not a proper ground for judicial review. Accordingly, the appellant is now wishing to agitate a matter not argued in the Court below.

55    The Minister did not object to the appellant arguing this ground of appeal. In that circumstance, I grant the appellant leave to raise this submission on the appeal. The appellant made his submissions at the hearing on 17 August 2016.

56    In the context of considering the appellant’s situation if he returned to his home in Peshawar, the RRT member noted, at [68], that there had been terrorist attacks there (but noted that they had tended to be attacks on government buildings and on the police). The member accepted nevertheless that there had been attacks on Shia targets and that Shia leaders and clerics had been killed, at [68]. He considered that the material did not suggest that ordinary Shias were being targeted in this way. The RRT member then referred to evidence indicating that there was some level of risk for the appellant bearing in mind terrorist attacks which had occurred in Peshawar (and which the RRT accepted were continuing to occur), such as the suicide bombing in a market in October 2009, the attack on a political rally protesting against electricity cuts in April 2010, and the attack on the US Consulate in Peshawar in the same month. As already seen, the RRT did not accept that these attacks were for a Convention reason and considered, in any event, that the risk to the appellant was the same as that of any other citizen of Pakistan.

57    In his written outline of submissions on the appeal, counsel submitted that the attacks to which the RRT referred had been identified as sectarian attacks. However, the evidence in the RRT to which counsel referred the Court on the appeal did not support that characterisation. As already noted, the FCC Judge took the same view. He was not in error in doing so.

58    The RRT member also referred to an attack on a mosque which the appellant had “occasionally” attended. The member considered that the risk of harm to the appellant in that respect was “very remote”, given that attacks of that kind were rare and the appellant attended the mosque only infrequently, at [72].

59    In my opinion, these findings were reasonably open to the RRT. That is especially so having regard to the evidence upon which the appellant himself relied. It cannot reasonably be said that the RRT’s findings are vitiated by illogicality or irrationality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[135]; SZOOR v Minister and Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [84]-[85] and [112]-[113].

60    On the hearing of the appeal, counsel for the appellant made a further submission, namely, that the RRT member had inappropriately conflated the issue of whether the persecution alleged was “systematic and discriminatory” (s 91R(1)(c)) with the issue of whether the persecution was by reason of a Convention ground (s 91R(1)(a)). I do not accept that submission: the mere fact that the RRT member dealt with the two elements in successive sentences in [73] does not indicate that they were conflated in his reasoning.

61    Accordingly, I consider that this ground of appeal is not made out.

Ground 4: Denial of procedural fairness

62    The appellant contended that the FCC Judge should have found that the RRT had contravened s 425 of the Act and the rules of procedural fairness by failing to put him on notice of an issue which arose in the review which was different from those which the Minister’s delegate had considered to be dispositive. The appellant identified that issue as being his claim that he feared persecution by reason of his membership of a particular social group constituted by young educated male persons who did not share the views of the majority in Pakistan.

63    The appellant directed this complaint to the finding of the RRT member in [84] of his reasons:

I do not accept on the evidence before me that, as [the applicant] himself claimed in the statutory declaration accompanying his original application, there is a real chance that if he returns to Pakistan he will be killed, harmed or mistreated by Sunni Muslims for reasons of his membership of the particular social group of ‘young educated male persons who do not share the views of the majority in Pakistan’.

64    The appellant referred to the well-known passage in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35]:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

65    The FCC Judge noted that the Minister’s delegate at first instance had not made individual factual findings about the appellant’s claimed membership of a social group comprised of “young educated male persons who do not share the views of the majority in Pakistan”. However, the delegate rejected as false the appellant’s claims “to fear harm for reasons that could have included … an imputed political opinion”.

66    The FCC Judge dismissed this ground for judicial review, holding that the Minister’s delegate had expressly rejected the appellant’s claim to fear persecution based on his membership of the particular social group of “young educated male persons who do not share the views of the majority in Pakistan”. That is to say, the FCC Judge regarded this as being one of the dispositive issues before the delegate and so a matter upon which the appellant was on notice in the proceedings before the RRT.

67    In my respectful opinion, the FCC Judge was in error in this respect. There is no express finding in the delegate’s reasons to the effect which the Judge supposed.

68    On the hearing of the appeal, counsel for the Minister submitted that, despite this error, the appellant could not have been in any doubt in the RRT that the truth of his claims generally, and their reliability, was in issue. Counsel for the appellant then pointed out that the Minister had not filed a notice of contention and claimed that the Minister’s counsel in the FCC had made relevant concessions which should preclude the Minister from advancing a submission to this effect on appeal. Counsel did not dispute, however, that he had known, in advance of the appeal hearing, that this would be the Minister’s submission. Counsel for the Minister disputed that any relevant concession had been made.

69    At the time of the appeal hearing, the transcript of the proceedings in the FCC was not available. Accordingly, I made orders granting the Minister leave to file a notice of contention and for the parties to file supplementary written submissions once the transcript of the hearing in the FCC became available. By his supplementary submissions, counsel for the appellant did not press the submission concerning concessions and conceded that it was open to the Minister to advance the alternative contention. He maintained, however, that the matter raised by the Notice of Contention should not be upheld.

70    I do not accept that submission. In my opinion, counsel for the Minister was correct in contending that the appellant could not have been in any doubt in the RRT that the truth of his claims generally was in issue. The transcript of the oral hearing in the RRT indicates that the RRT repeatedly put the appellant and his agent on notice of his reservations concerning the reliability of the appellant’s claims. Amongst other things, the RRT member put to the appellant that he had not been in any danger at all in Pakistan. In these circumstances, I consider that the Minister’s submission that neither the appellant nor his agent could have failed to appreciate that all claims being made by the appellant were in issue should be accepted.

71    This is a case in which the later comments of the High Court in SZBEL are pertinent:

[47]    [T]here may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. …

72    The present matter is a case of this kind. In my opinion this ground of appeal fails.

Ground 5: Irrationality in finding risk of harm was remote

73    Ground 5 does not relate to a ground of judicial review raised by the appellant in the FCC. Instead, it concerns a matter which the FCC Judge had raised in the course of the hearing before him and on which his Honour had sought further submissions from the parties. The Judge drew the parties’ attention to the finding of the RRT, in [68], that there had been terrorist attacks in Peshawar, attacks on Shia targets and that Shia leaders and clerics had been killed. The RRT member had noted, however, that the Australian Department of Foreign Affairs and Trade (DFAT) had advised that Shia Muslims fleeing generalised violence in other parts of Khyber Pakhtunkhwa have relocated to Peshawar with the implication, as the FCC Judge noted, that this supported the conclusion that Peshawar was safe (or relatively safe) for ordinary Shias. In the light of this reasoning, the FCC Judge sought further submissions from the parties as to whether the reference in the DFAT document to Shias relocating to Peshawar could be a matter of support for the RRT’s conclusion that the risk to the appellant from sectarian attacks in Peshawar was “very remote”.

74    Both parties then made submissions in writing. The FCC Judge accepted part of the appellant’s submission, namely, the fact that Shias who were fleeing generalised violence elsewhere relocated to Peshawar did not, of itself, provide logical support for the conclusion that the risk of harm faced by the appellant in Peshawar is “very remote”. However, the FCC Judge accepted the Minister’s submission that this material provided “one thread in the web of inference”, as opposed to a link in a chain of deduction, which could provide some support (albeit weak) for the Tribunal’s conclusion. The FCC Judge then concluded, at [52], that the RRT’s conclusion had “an evident and intelligible justification”, referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76].

75    The appellant critiqued this conclusion by characterising it as a finding that, despite the error, the RRT’s decision would inevitably have been the same, so that relief by way of judicial review should be denied. He then submitted that it was not inevitable that the RRT, differently constituted, would reach the same conclusion.

76    In my opinion, the premise for this submission is not sound. The FCC Judge did not reason that the conclusion reached by the RRT was inevitable. Instead, the Judge found, for the reasons he gave, that the RRT’s reasons were not affected by illogicality. That was because the circumstance that persons fleeing from other regions in Pakistan went to Peshawar was one matter (albeit slight) which could, rationally, bear on the assessment of the degree of risk for the appellant in Peshawar. It was part of “the web” of evidence from which the inference to that effect could be drawn, at [52]. I respectfully agree with that analysis. Evidence that affected persons consider it safe, or at least safer, to be in Peshawar is a matter bearing upon the assessment of the risk of harm in Peshawar. Accordingly, the FCC Judge did not make the error imputed to him. Ground 5 fails.

Summary

77    For the reasons given above, I consider that the appellant does not make out Grounds 1 to 5 in the Amended Notice of Appeal. As indicated at the commencement of these reasons, the appellant abandoned Ground 6.

78    Accordingly, the appeal is dismissed.

Associate:

Dated:    25 March 2019