FEDERAL COURT OF AUSTRALIA

BCX16 v Minister for Immigration and Border Protection [2019] FCA 465

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia made on 16 February 2018 in action MLG991/2016 be set aside.

3.    In lieu thereof, in action MLG991/2016, there be orders that:

(a)    the application for judicial review in the action be allowed;

(b)    a writ in the nature of certiorari issue quashing the decision of the second respondent made on 19 April 2016 to affirm the first respondent ’s decision made on 3 January 2014;

(c)    the application for review of the first respondent’s decision be remitted to the second respondent, differently constituted, for hearing and determination.

4.    The first respondent is to pay the appellant’s costs of the action MLG991/2016 and the costs of this appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Afghanistan and a former resident of Kabul. On 13 November 2012 he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth). A delegate of the Minister for Immigration and Border Protection refused to grant the appellant the visa. The delegate’s decision was affirmed on review by the Administrative Appeals Tribunal. The Federal Circuit Court of Australia (FCC) dismissed an application for judicial review of the Tribunal’s decision: BCX16 v Minister for Immigration & Anor [2018] FCCA 364. This is an appeal from that judgment.

2    There are two grounds of appeal. For the reasons given below, the first ground of appeal is established. Accordingly, the appeal should be allowed.

the visa criteria

3    Section 65(1)(a) of the Act provides that the Minister must grant a visa if satisfied that the criteria prescribed for the grant of the visa are met in respect of the visa applicant. If not so satisfied, the Minister must refuse to grant the visa: s 65(1)(b).

4    Relevantly, in order to qualify for the grant of the visa it was necessary for the appellant to satisfy (among other things) either the criteria in s 36(2)(a) of the Act (the Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (the Complementary Protection Criterion).

5    As then in force, the Refugee Criterion required that the appellant be a non-citizen in Australia in respect of whom the Minister was satisfied Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Australia has protection obligations to a person described in Article 1A(2) of the Convention, being a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

6    A subjectively held fear of persecution may be objectively well-founded for the purposes of the Convention and the Protocol even though the feared persecution is unlikely to occur. As McHugh J said in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429:

… an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded’ for the purpose of the Convention and Protocol.

7    See also Mason CJ at 389, Dawson J at 398 and Toohey J at 407. These expressions of principle may be referred to as the “real chance test”.

8    The Complementary Protection Criterion is that the applicant for the visa is:

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;

9    The “real risk that the non-citizen will suffer significant harm” (as that phrase is used in s 36(2)(aa)) is to be understood as a reasonable possibility, as opposed to a remote chance that such harm will occur. When used to describe the degree of likelihood of significant harm occurring, the words “real risk” import the same test as the real chance test articulated in Chan: see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, at [242] — [247] (Lander and Gordon JJ).

10    Section 36(2A) provides that a non-citizen will suffer “significant harm” if, among other things, the non-citizen will be arbitrarily deprived of his or her life.

11    Section 36(2B) has significance for this appeal. It provides:

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.

THE APPELLANT’S CLAIMS

12    In brief summary the appellant claimed (among other things) that he had a well-founded fear of persecution by an influential Tajik Sunni Muslim who will be referred to as “M”. He claimed that he had made a report to the police about M’s involvement in a murder, that he had subsequently been harassed by M and that he had been warned by a friend that M intended to kill him. This claim was described in submissions as a claim to have a well-founded fear of persecution for a Convention reason, that is, by reason of an imputed political opinion.

13    In respect of the Complementary Protection Criterion, the appellant relied on the same factual circumstances supporting his claim to be a refugee. In addition, the appellant claimed that there was a real risk that he would suffer significant harm if returned to Kabul, being the city in which he resided, because of the deteriorating security situation there. It is the latter additional claim that forms the subject of the first ground of appeal.

GROUND 1

14    The first ground of appeal is that:

The Federal Circuit Court erred by finding that s 36(2B)(c) of the Migration Act 1958 (Cth) (the Act) applied to preclude a finding of a real risk of significant harm.

Particulars

In circumstances where the Tribunal did not make any finding about the risk in Kabul compared to Afghanistan generally, there was no basis to conclude that the risk in Kabul was ‘one faced by the population of the country generally and is not faced by the non-citizen personally’.

15    In its reasons for decision, the Tribunal dealt with this aspect of the appellant’s claims under the heading “Complementary Protection”. That part of the reasons must be read in the context of the Tribunal’s earlier conclusions in relation to the appellant’s claims to be a refugee, which appear under another heading “Well-founded fear of persecution”. In that part of its reasons, the Tribunal referred to the personal attributes which were said by the appellant to be the reason for his claimed fear of persecution. The Tribunal said:

99.    The Tribunal does not accept on the evidence before it that there is a real chance that the applicant has a well-founded fear of persecution in Kabul by the Taliban, other insurgent groups or criminal elements because he is a Tajik, a Sunni, a returnee from Australia or a Western returnee, a failed asylum seekers [sic], a person who has witnessed a murder or any combination of his personal attributes and circumstances, now or in the reasonably foreseeable future.

100.    While the country information indicates that there are terrorist acts and there is an elevated level of generalised violence in Kabul, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution in the context of generalised violence, that is, the Tribunal finds that there is less than a real chance that the applicant will be harmed in a terrorist act or in an act of generalised violence in Kabul.

16    In assessing the appellant’s claim to fulfil the Complementary Protection Criterion, the Tribunal referred back to its findings in respect of the Refugee Criterion. It said (at [106]):

The Tribunal has considered the applicant’s circumstances with respect to this point. For the reasons provided under the heading ‘Well-founded fear of persecution, the security situation in Afghanistan’, the Tribunal has not accepted that the applicant will be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in Kandahar.

17    The reference to Kandahar in this passage is clearly intended to be a reference to Kabul. The “circumstances” to which the Tribunal referred must be understood as a reference to the Convention reasons that were said by the appellant to explain why he feared persecution.

18    The remainder of the Tribunal’s reasons in respect of this topic should be extracted in full:

107.    The Tribunal notes that there is a level of violence in Kabul as discussed with the applicant at the hearing. The Tribunal accepts that in late September and early October 2015, the Taliban also took over the city of Kunduz and controlled it for about 15 days. According to reports they destroyed government offices and facilities, seized military hardware, hunted down opponents and freed prisoners from the city prisons. Even though the operation was unexpected and impressive, the total number of people killed was 57 and nearly half of the fatalities were caused by a US airstrike on a hospital. Otherwise, the number of civilians killed was low: it was reported that of the 57 dead, 31 were police officers.

108.    The Tribunal has also considered recent country information about the rise of ISIS or Da’esh in Afghanistan, including reports that the veteran Afghan warlord Gulbuddin Hekmatyar, the leader of Hezb-e-Islami, has aligned himself with ISIS.

109.    The Tribunal accepts that there has been violence against the civilian population across Afghanistan, including Kabul where most international and central government [office] workers are based, and that there have been a number of civilian casualties (deaths and injuries) of people caught up in attacks.

110.    While the Tribunal accepts that terrorist attacks do occur in Kabul from time to time, the Tribunal considers that this is a risk that is faced by the population generally, and not by the applicant personally in this generalised violence context in that city. The Tribunal does not accept that there is any particular attribute of the applicant that would lead him to face a risk of differential treatment on his return.

111.    In the absence of any such particular attribute, having considered the country information detailed above, and the information from a number of sources, including the risk of deterioration in the security situation, the Tribunal does not accept that the level of generalised violence in Afghanistan, is so elevated that the applicant faces a real risk of significant harm, as defined in the Act.

The appellant’s submissions

19    In the proceedings before the primary judge, as on this appeal, the appellant argued that the test in s 36(2B)(c) had been misconstrued or misapplied by the Tribunal. The appellant submitted that the Tribunal had failed to make any assessment of the degree of harm faced by him in light of all of his personal circumstances and particularly having regard to his status as a resident of Kabul. Relatedly, it was submitted, the Tribunal had failed to make an assessment of whether the risks faced by residents of Kabul were the same risks faced by members of the population of the whole of Afghanistan more generally. Accordingly, it was submitted, the Tribunal had not performed the comparative task prescribed by s 36(2B)(c) of the Act because it had not asked whether the risk faced by the appellant personally (that is, having regard to his personal circumstance as a resident of Kabul) was the same as that faced by the broader population of the whole of the country. Instead, it was submitted, the Tribunal had erroneously compared the risk faced by the appellant with the risk faced by the population of the city of Kabul. That was not the test established by s 36(2B)(c), it was submitted.

Reasons of the primary judge

20    The primary judge detected no jurisdictional error affecting the Tribunal’s conclusions concerning the meaning of s 36(2B)(c) and its application to the appellant’s circumstances. The primary judge said that the Tribunal had identified no real risk of significant harm within the meaning of s 36(2)(aa) quite apart from the exclusion operation of s 36(2B)(c) and that the Tribunal was entitled to reject the claim under the Complementary Protection Criteria by reference to what it had found in relation to the Refugee Criterion. Her Honour said that the Tribunal had then gone on to construe and apply the Complementary Protection Criterion consistently with the construction of s 36(2B)(c) favoured by this Court in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J) and in BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 (Buchannan J).

Consideration

The Tribunal’s reasons

21    It is axiomatic that the reasons given by an administrative decision-maker are to be read beneficially and are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 (Lockhart J); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 — 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

22    Having said that, as the Full Court recently emphasised in AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 at [55] (Middleton and Mortimer JJ, Besanko J agreeing):

… the Court should not be hesitant to expose jurisdictional error where it truly exists: see eg Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [27]–[29] (per Flick J). In this sense there is no deference to the Tribunal, nor should any ambiguity necessarily be resolved in the Tribunal’s favour.

23    As I have mentioned, the reasons given by a Tribunal in respect of the Complementary Protection Criterion must be read in the context of the reasons as a whole and especially having regard to any reasons given by the Tribunal for rejecting a non-citizen’s claim to have a well-founded fear of persecution for a Convention reason. The facts bearing on the alternate visa criteria in s 36(2)(a) and s 36(2)(aa) may partially or wholly overlap, particularly in cases where a claim to have an objectively well-founded fear of persecution for the purposes of s 36(2)(a) of the Act is supported by the same facts that are said to give rise to a real risk of significant harm faced by the visa applicant “personally”. To the extent of any such overlap in the factual bases for the claims, the Tribunal is entitled to rely on its earlier factual findings, provided that it applies the correct legal test to them: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285.

24    Here, the facts alleged in support of each alternate criterion did not wholly coincide. The appellant did not claim to fear persecution by reason of his status as a resident of the city of Kabul. He did, however, rely on his place of residency as a personal circumstance that caused him to face a real risk of significant harm that was not the same as that faced by the population of Afghanistan generally.

25    It is well established that the Complementary Protection Criterion does not require that there be a nexus between the risk of harm and a reason for persecution mentioned in Article 1A(2) of the Convention. Accordingly, whilst the Tribunal's findings in respect of the Refugee Criterion may be relevant in important respects to its assessment of the Complementary Protection Criterion claims (as to which see BBK15 at [22]), they may not be determinative.

26    For the Minister it was argued that the Tribunal made a positive finding at [100] of its reasons that there was not a real risk that the appellant would suffer significant harm if he were to be returned to Afghanistan and that this finding was fatal to the appellant’s arguments on this appeal. As I understand the submission, it is said that the Tribunal found that the chance that the appellant would suffer significant harm was not sufficient in degree to be a “real risk” for the purposes of the Complementary Protection Criterion, quite apart from the exclusionary operation of s 36(2B)(c). The primary judge accepted this interpretation of the Tribunal’s reasons. I do not.

27    The passage in question (extracted at [15] above) is poorly cast and difficult to comprehend. If read literally, the passage may support an inference that the Tribunal erroneously conflated the test to be applied in respect of the Refugee Criterion with the test to be applied in respect of the Complementary Protection Criterion. The connecting words “that is” may support such an inference.

28    However, when read in the context of [99], the passage should be understood as expressing a finding that there was less than a real chance that the appellant would be harmed in Kabul for any one or more of the particular Convention reasons on which he had relied in support of his claim to fulfil the Refugee Criterion. The Tribunal should be understood as concerning itself with the degree of likelihood that the appellant would be the target of persecution by reason of the personal attributes underlying his refugee claim. I do not accept that the Tribunal was, in the passage in question, dealing or purporting to deal with the application of the Complementary Protection Criterion to the appellant. I particularly reject the submission that the Tribunal was there intellectually engaging with the appellant’s claim that there was a real risk that he would suffer significant harm by reason of being caught up in sectarian violence as a non-targeted citizen of a city where there was, as the Tribunal had found, “an elevated level of generalised violence”.

29    The passage at [106] of the Tribunal’s reasons (extracted at [16] above) is to be read as referring back to [99] and [100]. As I have said, the “personal circumstances” to which the Tribunal referred in that paragraph are to be understood as the particular circumstances relied upon by the appellant in support of his claim to have a well-founded fear of persecution. No jurisdictional error was alleged in connection with the Tribunal’s finding that the appellant did not personally face a real risk of significant harm by virtue of his imputed political opinion, his race, his ethnicity or any other personal attribute of a kind that he alleged would constitute a reason for persecution articulated in Article 1A of the Convention. The appellant’s arguments in respect of the Complementary Protection Criterion were more limited and nuanced than that. As I have said, the appellant claimed to face a real risk of significant harm by virtue of his status as a resident of Kabul.

30    At [110] of its reasons, the Tribunal expressed the view that the risk of the appellant being harmed in a terrorist attack in Kabul was a risk “faced by the population generally, not by the applicant personally in this generalised violence context in that city” (my emphasis). The emphasised words are to be given some meaning. In my view, the words indicate that the Tribunal’s reference to the population generally in this passage is a reference to the population of Kabul and not the general population of the whole of Afghanistan. Accordingly, the Tribunal should be understood as finding that the risk faced by the appellant was no greater than the risk faced by any other citizen of Kabul and, for that reason, was not a risk faced by him personally within the meaning of s 36(2B)(c).

31    In the following paragraph, the Tribunal states that it does not accept that the level of generalised violence in Afghanistan is so elevated that the appellant would face a real risk of significant harm. The Tribunal in that passage implicitly assesses the risk of harm faced by the appellant by reference to his status as a citizen of the country, without reference to the circumstance that he resided in the city of Kabul.

Jurisdictional error

32    The parties described s 36(2B) as a “carve out” or “exclusionary” provision. That is an appropriate description. It is clear from the opening words of s 36(2B)(c) that the provision is to have application where the non-citizen faces what would be a real risk but for the deeming effect of the provision. The same may be said of s 36(2B)(a). If the degree of risk to which a non-citizen is exposed does not constitute a real risk, within the meaning of s 36(2)(aa), then there is no occasion to consider the exclusionary effect of s 36(2B) at all.

33    Section 36(2B)(a) presupposes that persons residing in one part of a country may be exposed to a real risk of harm to which persons in another part of the country are not exposed. I will return to this provision in due course.

34    The Tribunal did make an assessment of the likelihood that the appellant would be personally targeted in the generalised violence in Kabul, and concluded that he would not be. But that finding was not determinative of the whole of the appellant’s claim. It was necessary to consider whether the appellant’s residency in Kabul was, of itself, a circumstance that exposed him to a real risk of significant harm as a non-targeted citizen who may be caught up in the attacks. If the answer to that question was “no” then there would, as I have said, be no reason to consider the application of s 36(2B)(c) at all. If the answer was “yes”, then it was the risk so identified that fell to be considered under s 36(2B)(c).

35    I respectfully conclude that the primary judge erred in finding that the Tribunal made a finding that there was no real risk that the appellant would face significant harm quite apart from the operation of s 36(2B)(c) of the Act. The application of s 36(2B)(c) is front and centre in the Tribunal’s reasoning in respect of the Complementary Protection Criterion. There is nothing to suggest that the Tribunal was applying the exclusionary provision as an alternative path in reasoning to its conclusion.

36    For reasons given below, the Tribunal misapplied the exclusionary provision.

37    As has been observed, s 36(2B)(a) contemplates a circumstance in which a person may be exposed to a real risk of harm by reason of the location of a person in an area of a country and yet is able to relocate so as not to be exposed to that risk. Section 36(2B)(c) should be construed harmoniously with s 36(2B)(c). Read in the context of s 36(2B)(a), the concept in s 36(2B)(c) of a risk being faced by a non-citizen personally in my view may include a risk faced by a person because of the circumstance that he or she resides in an area of a country. A risk to which a person is exposed because of the circumstance that he or she resides in a specific area of the country is, in my view, a risk that is faced by the person personally, notwithstanding that other persons residing in the same area are exposed to the same risk. In such cases, s 36(2B)(a) operates so that in cases where it would be reasonable for such a person to relocate to an area of the country where there would not be a real risk that he or she would suffer significant harm, then the risk in fact faced by the person must be taken not to be a real risk.

38    Returning to the present case, the Tribunal concluded that the risk to which the appellant was exposed was the same as that faced by other residents of Kabul and so was not, the Tribunal said, a risk faced by the appellant personally. In this aspect of its reasons, the Tribunal asked the wrong question. The Tribunal construed s 36(2B)(c) on the erroneous basis that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree. In my view, on the proper construction of the Act, if there was a real risk of harm faced by all citizens of Kabul by virtue of their residency there, then it was a risk faced by each of them personally.

39    Where, however, the risk faced by a person is the same risk that is faced by the general population of the whole of the country, then it cannot be said that the person is exposed to the risk because of his or her personal circumstance of residency in any one particular area of it. No question of relocation could arise because the real risk would be one to which the person would be exposed throughout the country. Understood in this way, it can be seen that the text in s 36(2B)(c) is a composite phrase. Underlying the phrase is an assumption that a risk faced by the population of the country generally is, by its nature, a risk that is not faced personally by any one of its citizens.

40    I accept the submission that the Tribunal did not make an assessment of whether the appellant faced a real risk of significant harm in light of his status as a resident of Kabul so as to enable that risk to be the subject matter of its consideration under s 36(2B)(c). As a consequence of that error, the Tribunal could not and did not perform the comparative task required by s 36(2B)(c). Instead, the Tribunal compared the risk faced by the appellant with the risk faced with other citizens of Kabul and erroneously concluded that any risk of serious harm was not faced by the appellant personally because it was one faced by other people residing there. That was not the comparison which s 36(2B)(c) called for.

41    I have not overlooked the Tribunal’s finding that the general population of Afghanistan did not face a real risk of harm by virtue of sectarian violence. That finding may be critical in an assessment of whether the appellant might reasonably be asked to relocate to another part of the country and so affect any assessment that may be made under s 36(2B)(a) but that does not affect my conclusion that the Tribunal committed jurisdictional error in its application of s 36(2B)(c).

42    The appeal should be allowed on this basis.

Authorities

43    I have expressed my reasons with respect to the proper construction of the provision without reference to the authorities to which the primary judge referred. I will now explain why those authorities do not resolve the particular question of construction that arose on the appellant’s case.

44    The appellant in SZSPT had claimed that there was a real risk that he would suffer significant harm if he were removed to Sri Lanka because of his status as a failed Tamil asylum seeker who would be penalised under the Sri Lankan criminal law for having left Sri Lanka illegally. The Tribunal in that case held that the law to which the appellant would be subject was one of general application such that every person in Sri Lanka who broke the law would be subject to the same penalties. The risk of harm faced by the appellant was, accordingly, a risk faced by the population of Sri Lanka generally within the meaning of s 36(2B)(c). The appellant argued that he was differentially at risk of significant harm because the general population of Sri Lanka had not breached the law by leaving Sri Lanka illegally. Rares J said:

10    I am unable to understand that argument. The scheme of the complementary protection ground in s 36(2)(aa) is that it required the Minister to have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to, relevantly, Sri Lanka, there was a real risk that he would suffer significant harm. However, if the Minister were also satisfied within the meaning of s 36(2B)(c), that that risk was one faced by the population of the country generally and not faced by the appellant personally, then the risk was deemed not to amount to a real risk of ‘significant harm’ for the purposes of s 36(2)(aa).

11    In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.

12    Here, the risk faced by the population of Sri Lanka generally was that if its citizens broke the law, they became liable to such penalties as the law applied to the relevant contravention. Every citizen who broke such a law necessarily faced a risk personally that the consequences of such an infraction would be applied to him or her by law. But that was not any different to a risk faced by the population of the country generally.  …

13    It would be unrealistic to construe the exception in s 36(2B)(c) as incapable of application to every person who was a lawbreaker in the country to which he or she was to be returned, where the consequence of the person having previously broken the law was that he or she might be exposed to the risk of being imprisoned in a prison system that did not meet international standards, but to which every other citizen of that country was equally liable to be subjected to if he or she broke not only that law, but any other law of that country. In particular, the exception provided by s 36(2B)(c) was directed to a real risk, for example, that a person would be subjected to torture were he or she returned to a country, to which not everyone in the population was exposed. However, if the population were generally exposed to the risk of torture, as opposed to the person as an individual or by reason of some characteristic that distinguished him or her from the characteristics of the general populace, then the exception was intended to operate, odd as that may seem.  …

(Emphasis added)

45    Rares J did not have occasion to consider the application of s 36(2B)(c) to a person who claims to personally face a real risk of significant harm because of the circumstance that he or she lives in a place in which it is alleged that there is an especially elevated risk of violent non-targeted attacks occurring.

46    The question of whether or not a person’s place of residency may be regarded as a characteristic that might distinguish the person from the characteristics of the general populace arose, at least implicitly, in argument before Buchanan J in BBK15. However, on the proper interpretation of the Tribunal’s reasons in that case, the question was unnecessary to resolve.

47    The visa applicant in BBK15 claimed that he was exposed to a real risk of significant harm because of the level of ongoing sectarian violence in his “home area” which, he said, was the village of Boghra in Pakistan (a place that had been the subject of attacks by the Taliban and from which the villagers had fled). The grounds of appeal and written submissions before Buchanan J alleged that the Tribunal had misapplied s 36(2B)(c) of the Act in respect of the appellant’s “home area” in light of its findings about the security situation in Boghra. However, at the hearing of the appeal, the appellant accepted that he and his family had relocated some years earlier to a village near Sadda, in a different region of the country. Buchannan J said that this acknowledgment by the appellant substantially eroded the foundation for a number of arguments he had advanced, and the grounds of appeal themselves (at [27]). On a proper interpretation of the Tribunal’s reasons, his Honour said, the Tribunal had proceeded on the basis that the appellant resided near Sadda and its references to the appellant’s “home area” were to be so understood. Buchanan J said (at [30]):

In my view, s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense (see also SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]). A risk shared with the general population is taken not to be a ‘real risk of harm’ for the purpose of s 36(2)(aa).

48    Unlike the present case, it had not been submitted that the general security situation in the area near Sadda was any different from that affecting the rest of the country. By reference to country information, the Tribunal had found that violence “throughout Pakistan” was rampant and so concluded that the appellant would not be in a position that was substantially different from the general population of the country. Buchanan J said that, in substance, the Tribunal had found that the appellant did not face a particular personal risk of harm by virtue of living in Sadda and that any risk of harm he did face was one which arose from sectarian or generalised violence in the whole of the country of Pakistan. Accordingly, the Tribunal in BBK15 undertook the comparative task required of it by comparing the situation of the appellant as a resident of an area near Sadda with that of the population of the whole of the country.

49    At the conclusion of his reasons, Buchanan J again emphasised (at [33]) that the alleged factual foundation for the grounds of appeal had not been established, namely the allegation that the appellant’s “home area” was the village of Boghra.

50    Buchanan J rejected (at [32]) the appellant’s contention that s 36(2B)(c) only applied if a risk was faced by all members of the population of a country:

…  In my view, the Tribunal was correct to understand that a reference to ‘the population of the country generally’ is a reference to the commonly understood concept of the general population – ie there need not be a risk faced by all members of the population or by each citizen of a country for s 36(2B)(c) to apply.

51    Read in context, I do not understand this passage from his Honour’s reasons to be directed at the circumstance where a person claims to face a greater risk of harm vis a vis the general populace of a country by reason of the circumstance that he or she resides in a particular area of it. Nor do I understand his Honour’s reasons to be directed at the question of whether residence in an area may be a factor that exposes a person to a risk of harm in the requisite “individual or personal sense”. His Honour did not engage with that question because, on the proper interpretation of the Tribunal’s reasons, the factual foundation for it did not exist.

52    Neither party to the present appeal brought the Court’s attention to an authority of this Court in which it had been necessary to decide the narrow question of construction arising on the first ground of appeal in this matter. I have had regard to decisions of the FCC which touch upon the issue and to which the parties referred but do not consider it necessary to analyse or comment upon them: see, for example, BXY15 v Minister for Immigration & Anor [2018] FCCA 2896; SZSFF v Minister for Immigration & Anor [2013] FCCA 1884.

GROUND 2

53    The second ground of appeal is that:

The Federal Circuit Court erred by not finding that the Tribunal denied the Appellant procedural fairness and/or a hearing required under s 425 of the Act.

Particulars

The denial occurred in relation to the Tribunal finding that ‘M’ would no longer be interested in harming the Appellant on bases that were not obviously open on the known material.

54    The claims to which this ground relates are correctly summarised by the primary judge at [10] – [15] of her Honour’s reasons as follows:

10.    The Applicant claimed to have left Afghanistan due to an incident which occurred in May 2012 in Kabul. The Applicant claimed that he was working as an assistant at his father’s shop when a person, who appeared to be of Tajik ethnicity, was murdered approximately ten metres outside the shop. The Applicant learned from a crowd of people who had gathered that the killer, referred to in these proceedings as ‘M’, was a leader of a group of armed men and that M was politically connected.

11.    The Applicant claimed M lived in the same suburb as the Applicant. The Applicant claimed that he was questioned by the police regarding the murder and informed them that although he did not witness the killing, he understood the perpetrator to be M. A few days later the Applicant learnt from a friend that M intended to kill him for providing information to the police.

12.    The Applicant claimed he therefore fled Afghanistan, approximately 35 days after the incident. During this 35 day period, the Applicant did not go into his father’s shop, as he feared being killed. The Applicant said he fears returning to Afghanistan because he believes that M will kill him.

13.    In submissions that were before the Tribunal, and which accompanied the visa application, the Applicant’s agent described M as ‘the influential Tajik Sunni warlord.” The Applicant’s claims under the Refugees Convention were articulated to be on the following bases:-

a)    Imputed political opinion: the Applicant claimed he had come to the adverse attention of an influential Tajik Sunni Muslim who has links with the Afghan government; and

b)    membership of the particular social group, ‘failed asylum seeker returnee from a Western country’.

14.    On 23 April 2014, the Applicant provided the Tribunal with a written statement and written submissions. On 27 November 2015, the Applicant provided a further written submission and a statutory declaration to the Tribunal. The written submission addressed the delegate’s credibility findings, and cited various pieces of country information. In his statutory declaration the Applicant claimed that he had recently become aware, through conversations with his mother, that unknown people who he assumed to be connected with M had come looking for him in Kabul. This led the Applicant’s father-in-law, wife and children to go into hiding in an unknown location in Kabul. The Applicant claimed further that his own parents had also moved away from the area and his father was thought to have abandoned the shop all together.

15.    The Applicant also referred to being unable to access effective State protection because of M’s political connections and being unable to reasonably relocate because his family was in Kabul …

55    The Tribunal found that it was implausible that M would be interested in harming the appellant almost four years after the alleged murder. It said that there was no evidence that there was ever a proper investigation into M other than the most basic questioning of witnesses on the day of the crime. It said there was no evidence to suggest that the authorities had approached the appellant’s family after he had left Afghanistan to advise that they sought the appellant’s testimony to secure M’s conviction.

56    The primary judge rejected (at [42]) the contention that the Tribunal had denied the appellant procedural fairness by not forewarning him of these conclusions:

The Tribunal tested the evidence of the Applicant relating to the investigation of M to test the veracity of the Applicant’s claims regarding the police inquiry into M’s conduct. This testing of the Applicant’s evidence was a course open to the Tribunal. The onus was on the Applicant to make out the factual basis of his claims for the visa. It was not for the Tribunal to make out the Applicant’s case. As was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [29] to [31] and [48], a decision-maker is not required to expose his or her mental processes or provisional views before making a decision. That is the complaint here. No failure to afford the Applicant procedural fairness was made by the Tribunal.  …

57    The primary judge went on to say that the appellant had been given notice of the dispositive issues throughout the review process.

Consideration

58    The principles concerning the Tribunal’s obligation to afford the appellant procedural fairness are not contentious. At issue is the application of the principles to the facts of the appellant’s case. The content of the obligation is that identified by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592 (Northrop, Miles and French JJ):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

59    The application of these principles to the Tribunal in the performance of its hearing function was discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152:

33    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’ (s 425(1) (emphasis added)). The reference to ‘the issues arising in relation to the decision under review’ is important.

34    Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language ‘arising in relation to the decision under review’ is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

60    The High Court went on to say that the Tribunal was not confined to whatever may have been the issues that the delegate considered dispositive. However, in cases where the Tribunal did identify issues other than those the delegate considered dispositive, but did not tell the applicant what the issues are, then the review applicant would be entitled to assume that issues that arise in relation to the decision are those encapsulated in the reasons given by the delegate for refusing to grant the visa. The Court continued (at [38]):

When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as ‘implausible’, and that this conclusion was ‘not obviously ... open on the known material’, the focus of the contention must fall upon what was ‘obviously ... open’ in the Tribunal’s review. That can be identified only by having regard to ‘the issues arising in relation to the decision under review’. It is those issues which will determine whether rejection of critical aspects of an applicant’s account of events was ‘obviously ... open on the known material’.

61    In the present case, it is clear from the transcript of the Tribunal’s hearing that the appellant was put on notice by the Tribunal that it would not take the same approach as the delegate, particularly in respect of material that was said by the delegate to have adversely affected her assessment of the appellant’s general credibility. The Tribunal then went on to make a series of statements and to put a series of questions to the appellant which together were sufficient to put him on notice that his fears concerning the ongoing motivations of M were not objectively well-founded. The statements and questions include the following:

Member:    Right. Perhaps because there is not enough evidence to convict him?

…

Member    Yeah, okay. Now, the way that you’re describing what happened, the way that you’re describing today what happened at the market, if it happened 30 to 35 metres away from you, some distance that’s more than 10 metres away, it’s a busy market, you also told me earlier today. Before the shooting happened, a crowd had already gathered around the people who were arguing, so there would have been many other witnesses to that killing who are closer than you.

…

Member    Why would he bother threatening your family, why would he bother doing anything to you? If you were questioned once by the police, and you said you didn’t actually see him pull the trigger and kill anyone. Why would you be a threat to him?

…

Member    Okay. Hundreds of people have sadly been killed in Kabul since you left three and a half years ago. [M] had a history of being arrested and being released. Would he really think that the police three and a half years after something happened would still try to use you to arrest and convict him when you didn’t actually see him pull the trigger?

…

Member    It seems to me if he has a history of getting away with killing people in the past, that he wouldn’t be interested in you, and he would be even less interested in your family, so your family wouldn’t have to move.

62    Furthermore, the appellant himself made submissions concerning the likelihood that M would remain the subject of ongoing police investigations and in post-hearing written submissions he asserted reasons why he might be a valuable witness in any trial of M.

63    In my judgment, it is evident from the transcript of the hearing that the appellant was put on notice that everything he had claimed in relation to M’s motivations to harm him was in issue on the review, notwithstanding that the delegate had refused the visa application on a more narrow premise. The appellant was provided with the opportunity to provide further submissions after the hearing, which he accepted. In those submissions the appellant addressed the topics that had been raised in the course of the Tribunal’s questioning of him and the submissions were taken into account.

64    With respect, the primary judge was not correct to conceive of the appellant’s complaint as an asserted failure by the Tribunal to “expose its mental processes”. The question to be determined was whether the Tribunal had identified issues in relation to the decision under review that had not been considered dispositive by the delegate and, if so, whether the Tribunal had put the appellant on notice of those issues and provided him with the opportunity to make submissions about them. For the reasons I have given, there was no breach of the rules of procedural fairness of the kind alleged and the second ground of appeal should accordingly be rejected.

Associate:

Dated:    5 April 2019