FEDERAL COURT OF AUSTRALIA

ANF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1379

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs fixed in the amount of $5,000.

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

REASONS FOR JUDGMENT

MIDDLETON J:

1    On 26 August 2019, the Court ordered that the appeal be dismissed with costs. These are the reasons for those orders.

2    In the matter before me, the Appellant appeals from a decision of a judge of the Federal Circuit Court dated 12 February 2019 and published as ANF16 v Minister for Home Affairs & Anor [2019] FCCA 150. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) to affirm a decision of a delegate of the First Respondent (the ‘Minister’) to refuse to grant the Appellant a protection visa (the ‘visa’).

3    The factual background to this matter is summarised at [3]-[20] of the primary judge’s reasons. All that needs to be repeated here is that the Minister refused to grant the Appellant the visa on the basis of the Minister’s finding that, notwithstanding the Appellant’s claimed fear of being harmed at the hands of the Taliban (or other extremist Sunni Muslim groups), the Appellant could safely return to and relocate within his home country of Pakistan.

4    The procedural history, as it relates to the Tribunal’s decision to affirm the Minister’s decision, is set out at [27]-[34] of the primary judge’s reasons. Relevantly, the Tribunal found that, on account of independent country information (which suggested that the security situation in the relevant region had improved), the chance of the Appellant suffering harm from the Taliban or other extremist groups, individuals or Sunnis generally to be remote. The Tribunal made its decision on 5 February 2016.

5    Before the primary judge, the Appellant sought to demonstrate jurisdictional error in the Tribunal’s decision founded on:

(1)    the Tribunal’s refusal to reconvene for the purposes of giving consideration to certain further country information; and

(2)    the Tribunal’s conclusion as to the level of risk in the Appellant’s home region of the Upper Kurram Agency in Pakistan, which was said by the Appellant to be irrational or illogical having regard to the material before the Tribunal.

6    The primary judge found that:

(1)    there was no want of fairness or practical injustice occasioned to the Appellant – the risk posed by violence was squarely recognised and addressed in detail in pre-hearing, hearing and post-hearing submissions by the Appellant’s agent and that the Tribunal was under no obligation to convene a further hearing in response to the availability of further country information; and

(2)    the Tribunal’s conclusion in respect of the level of risk in the Upper Kurram Agency in Pakistan was not irrational or illogical – rather, it was a conclusion that a reasonable decision-maker could have reached on the same material and the Tribunal gave proper, genuine and realistic consideration to the question of sectarian and generalised violence in the relevant region.

7    The Appellant’s grounds of appeal and submissions in support of those grounds largely mirror the two grounds of review raised before the primary judge. His grounds of appeal are as follows:

•    The Federal Circuit Court of Australia erred by not concluding that the Second Respondent committed jurisdictional error by failing to give the Appellant a meaningful opportunity to give evidence and present arguments relating to issues arising in the review as required under s 425 of the Migration Act;

•    The Federal Circuit Court of Australia erred by not concluding that the Second Respondent committed jurisdictional error by making a finding related to risk of sectarian violence in the Appellant's home region were irrational , as they could not be supported by the evidence from which the Tribunal purported to draw them.

8    In respect of the first ground of appeal, the Appellant submitted that by virtue of a Ministerial Discretion made pursuant to s 499 of the Migration Act 1958 (Cth) (the ‘Act’), the Tribunal was obliged to take into account certain country information prepared by DFAT for the purpose of assessing protection visa applications, and that failure to do so constituted jurisdictional error. Two such DFAT country information reports were said to be relevant to the Appellant’s assessment.

9    The first report was dated 14 April 2015 (the ‘2015 DFAT Report’) and was referred to in the Appellant’s written submissions to the Tribunal. As extracted in the Tribunal’s reasons at [42], the 2015 DFAT Report relevantly recorded:

DFAT understands that a 2013 truce (‘the Murree Agreement’) between the Shia Turi and mostly Sunni Bangash communities in Kurram Agency is still in place (as of November 2014). The main road from Thal to Parachinar, Kurram Agency’s main town is open and is frequently used by civilian cars. Federal security forces maintain armed checkpoints on this road. This has resulted in an improved security situation in Kurram Agency.

Based on discussions with credible international non-government organisations, local representatives and residents, DFAT understands that more than 3,700 families formerly displaced from Kurram Agency have been able to return to their places of origin during 2014, including to Parachinar City and some surrounding villages in Upper Kurram. However, many Shia IDPs have remained in Kohat, Hangu, Peshawar and nearby Islamabad where they have settled and have existing support systems.

Overall, DFAT assesses that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas. However. The situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services.

(Emphasis added)

10    The second report was dated 15 January 2016 (the ‘2016 DFAT Report’) and stated that it replaced the 2015 DFAT Report. The 2016 DFAT Report was issued after the Tribunal hearing on 10 August 2015, and after the Appellant’s post-hearing submissions were filed on 3 September 2015 and 17 December 2015. The Tribunal made its decision on 5 February 2016. The 2016 DFAT Report recorded that there was a low level of generalised and sectarian violence in the broader region, but that it varied throughout. It also reported that there was a low-level of generalised violence in the Kurrum and Orakazi Agencies.

11    On the Appellant’s submission, s 425 of the Act requires the Tribunal to invite an applicant to a hearing to give evidence and present arguments arising in relation to the decision under review. Relying on Besanko J’s judgment in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 (‘SZHKA’), the Appellant says that the obligation in s 425 obligation is not a one-off obligation and that ‘if an issue in relation to the decision under review emerges after the hearing conducted by the Tribunal’, a further invitation must be given: at [103].

12    The Appellant contended that because the risk of harm posed to him by generalised or sectarian violence was an issue relevant to the Tribunal decision, and that was an issue which the 2016 DFAT Report shed light on in a manner that was not conducive to the Tribunal granting the visa, the Appellant should have been given an opportunity to present arguments in response to the contents of the 2016 DFAT Report.

13    The Appellant conceded that the Tribunal was not under an obligation to put that material to the Appellant as is required by s 424A in respect of other material, but submitted that this did not qualify the Tribunal’s obligations under s 425 in the circumstances of this case. The Appellant relied on the decision of Bromberg J in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 (‘ABV16’) at [31] in this respect.

14    In relation to the second ground of appeal, the Appellant submitted that, in respect of the Tribunal’s conclusion that the Appellant ‘did not face a real chance of serious harm and did not face a real risk of significant harm’, the factual finding that supported this conclusion was illogical, irrational or unreasonable, in the manner described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (‘SZMDS’). The impugned factual finding was that the Appellant’s home region was not an area where the risk of sectarian violence discussed in the 2015 DFAT Report existed. In support of this contention, the Appellant drew the Court’s attention to a range of materials which, although cited as part the material upon which the Tribunal relied, the Appellant said did not in fact support such a factual finding. For the reasons described in SZMDS, this was said to constitute jurisdictional error.

15    For the reasons that follow, I find no relevant legal error in the primary judge’s reasons. I will address each ground of appeal in turn.

16    In relation to the Appellant’s first ground, no error was demonstrated with respect to the primary judge’s consideration of this ground.

17    The primary judge was correct to find that the relevant issue on review was whether the appellant was at risk of serious or significant harm in his home region due to sectarian and generalised violence. Further, his Honour (at [65]) was correct to accept the Minister’s submission that the 2016 DFAT Report was employed as evidence which was confirmatory of the position in the 2015 DFAT report and that so much was plain from the Tribunal’s reasons at [46], which were as follows:

While the Tribunal notes the DFAT 2015 report assessed that there was a moderate risk of sectarian violence in some areas of FATA and a high risk of generalised violence (as highlighted by the applicant’s adviser in their submissions) the Tribunal does not accept on the basis of all the information before it, including information from the FATA research centre, SATP and PIPS, that Upper Kurram, including Parachinar, is one of the areas where such a risk exists. This is confirmed in the more recent DFAT report dated 15 January 2016 in which DFAT assesses there is a low level of sectarian violence overall in the FATA and the level of generalised violence varies throughout FATA, with this violence greatest in North Waziristan and Khyber Agencies because of ongoing military activities associated with Operation Zarb-e-Azb. DFAT assessed there is a low level of generalised violence in Kurram and Orakzai Agencies.

18    Although the 2015 DFAT Report found ‘a high level of generalised violence in FATA and a moderate risk of sectarian violence in some areas’, it did not accept on the basis of all the information before it, that the Upper Kurram Agency, including Parachinar, was one of the areas where such a risk exists. The Tribunal was correct to find that the 2016 DFAT Report ‘confirmed’ that there is a ‘low level of sectarian violence overall in the FATA’ and a ‘low level of generalised violence’ in the Kurram Agencies. When the country information is viewed in light of the levels of violence in the Appellant’s home region specifically, there is no material inconsistency, or difference, between the 2015 DFAT Report and 2016 DFAT Reports as alleged by the Appellant.

19    In my view, the primary judge correctly relied upon the statements of principle set out in SZHKA at [100]-[103] and in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32] and [35], and in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [51]. Further, his Honour correctly distinguished a number of other relevant authorities, including ABV16 at [31], which the Appellant relied upon, in arriving at the conclusion that no further obligation arose to invite the Appellant to comment or to convene a further hearing by promulgation of the 2016 DFAT Report: see [71].

20    In relation to the Appellant’s second ground, I am not persuaded that the primary judge erred in not finding that the Tribunal’s findings in respect of the risk of sectarian violence in the Appellant’s home region were illogical, irrational or unreasonable.

21    Fundamentally, the Appellant’s contention that none of the evidence could rationally support a finding that the degree of generalised violence and sectarian violence did not apply to Upper Kurram Agency, is misconceived. It is plain from the Tribunal’s reasons that it did not find that there was no risk of generalised violence and sectarian violence in the Upper Kurram Agency. Rather, it found that the evidence before it did not support a conclusion that Upper Kurram Agency, including Parachinar (being the Appellant’s home region), is one of the areas in the broader region where a moderate risk of sectarian violence and high risk of generalised violence exists.

22    Further, as was submitted before the primary judge, there was other material which supported the Tribunal’s findings as to the level of risk. These included:

(1)    The ‘FATA Research Centre April-June 2014’ report stating that Kurram Agency remained stable during the quarter, with most of the recorded six incidents causing 13 deaths occurring in central and lower Kurram. As against the past two quarters, reports showed considerable improvement in conditions.

(2)    The ‘FATA Research Centre July 2014’ report analysis of the fourth quarter in 2014, which reported only two incidents occurred in Kurram Agency in this period killing three people. One such incident occurred in Upper Kurram which was not targeted at any specific individual or vehicle.

(3)    The ‘SATP Report’ also confirmed the trend of improved conditions in Kurrum Agency, with only one incident in the third quarter (killing one person and injuring two others), and as set out in above mentioned FATA Research Centre July 2014 report, only two incidents in the fourth quarter.

23    The primary judge’s findings (at [86]-[88]) were correct having regard to the evidence and were based on a correct application of the principles relevant to establishing illogicality or irrationality sufficient to give rise to jurisdictional error, including those set out variously in the High Court’s decision in SZMDS.

24    Accordingly, the primary judge did not err as contended by the Appellant. This ground must fail.

25    For the above reasons, the appeal is dismissed.

Associate:

Dated:    27 August 2019