FEDERAL COURT OF AUSTRALIA

CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent's costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction and summary

1    The appellant, a Pakistani national, appeals from a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) refusing to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

2    The appellant’s primary contention is that the Tribunal erred in assessing the risk of harm to the appellant if he returned to Pakistan on the basis that, broadly, the Tribunal found that the security situation in Pakistan had improved since the appellant left Pakistan, but failed to undertake an assessment of the absolute level of risk as at the date of the Tribunal’s decision. The appellant also argues that the Tribunal erred in relying on the experiences of certain returnees to the Upper Kurram region of Pakistan as recorded in a UNHCR report.

3    For the reasons below, the Circuit Court was correct to dismiss the appellant’s judicial review application. When the Tribunal’s reasons are read fairly and as a whole, I am not persuaded that the Tribunal misunderstood or misapplied the relevant test in assessing the risk of relevant harm that the appellant would face if returned to Pakistan. Neither did the Tribunal err in the circumstances of this case by relying on the returnees’ experiences set out in the UNHCR report. The appellant’s appeal to this Court is accordingly dismissed.

Background

4    The appellant’s written submissions, as prepared by Mr Henderson of counsel, summarised that his relevant claims for protection included the following:

(a)    He was born and, until leaving the country, had lived his whole life in the Turi Qabristan Colony in Parachinar, a city in the Kurram Agency in Pakistan. As such he is a Shia Muslim.

(b)    The Taliban (and other related militant Sunni elements, including ISIL/Daesh) had (at the relevant time) a strong and active presence in this region of Pakistan.

(c)    While the Taliban and related groups have an openly violent animosity towards Shia in general, they are particularly hostile toward the Turi tribe and other Shia from Parachinar. This is because the Turi Shia have (along with other tribes) refused to allow these militant sects access to the Afghanistan border, which they seek to cross in order to engage in war with US-led forces.

(d)    Prior to his departure, the Appellant was a taxi driver and a delivery driver. His delivery work often involved him carrying goods from villages in the region to Parachinar. For the 3 months immediately before his departure, he worked in a fabric or clothing stall in an open marketplace.

(e)    In 2008, the Appellant's uncle, also a driver, was kidnapped and murdered by the Taliban.

(f)    Following his uncle's abduction and murder, the Appellant was identified as an enemy of the Taliban because of the transport services and assistance he has provided to Shias in the area. He was threatened many times by people identifying themselves as Taliban.

(g)    On 17 February 2012, he was going to prayer when a suicide bomber detonated a device in the area.

  (h)    He left Parachinar in April 2012.

(i)    He now fears that militant Sunni groups in Pakistan will consider him to be a traitor and spy for having sought asylum in Australia.

The Tribunal’s decision

5    On 25 July 2016, the Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa (AAT Reasons).

6    In reaching its decision, the Tribunal relevantly accepted:

(a)    that the appellant had lived in the Kurram Agency until April 2012: AAT Reasons at [50];

(b)    the appellant’s claims about the deteriorating security situation in Kurram Agency during 2007: ibid at [49];

(c)    that the appellant’s uncle had been abducted, tortured and murdered by the Taliban and that it was plausible that the Taliban had made threatening calls to the appellant’s brother: ibid at [50]; and

(d)    that the appellant was in the vicinity of a bomb blast which occurred at the Central Shia Shrine: ibid at [51].

7    However, the Tribunal also held that:

(a)    the appellant’s profile was not such that he was at higher risk than other Turi Shias from Kurram Agency who had sought asylum in Australia: ibid at [57]; and

(b)    Shia Muslims in general risked being targeted for terrorist attacks in Pakistan by Sunni extremist groups, including the Taliban: ibid at [59].

8    The Tribunal therefore concluded at [55] and [56] that

the [appellant] was not specifically and actively targeted by the Taliban, given the [appellant’s] evidence that there were no incidents directed at him over the four years he worked as a driver /courier.

…

Based on the totality of the available evidence, considered individually and cumulatively,… the [appellant] does not have a profile based on his familial connection to his murdered uncle; and/or due to his work as a driver, that makes him a specific target for the Taliban.

9    The Tribunal then considered the available country information at [57]-[67] of the AAT Reasons. Having done so, the Tribunal relevantly concluded as follows:

68.    … The Tribunal has therefore given weight to the relevant DFAT reports as well as other credible sources. The Tribunal considers that the totality of these sources provides an accurate picture of the security situation and overall level of casualties. The Tribunal acknowledges that the situation can change and fluctuate, as indicated in the FRC’s annual security report for 2015 cited above for example, and that there is an element of vulnerability in the government security measures, as illustrated by the December 2015 IED attack in Parachinar. Taking into account the most recent DFAT assessment, as well as credible and independent country information from other sources as discussed, the Tribunal is of the view that the weight of the country information indicates that a level of security has been restored to Kurram Agency and general peace restored, to the extent that there is not a real chance that the applicant would suffer persecution amounting to serious harm from the Taliban or other anti-Shia extremist groups or associated groups if he returned to Kurram Agency. The Tribunal finds that the applicant’s concerns that the return of IDPs means that bad Sunnis who support the Taliban have returned to Kurram Agency and this will lead to a deterioration in the security situation is not supported by the weight of country information on the security situation since the beginning of 2014.

…

70.    The Tribunal accepts DFAT’s assessments regarding the risk of both sectarian violence and generalised violence in the FATA and accepts that there is some level of risk to the applicant. However, the Tribunal finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm for reasons of his Turi ethnicity, Shia religion, membership of a particular social group comprising Turis from Parachinar, and/or imputed political opinion of opposition to the Taliban (and its ideals) and other militant Sunni groups (due to his status as a Turi Shia; his associated with his uncle; his work as a driver servicing local Shias; and his being associated with Western values); or any other Convention reasons.

…

73.    Considering the applicant’s claims both individually and cumulatively, as a Turi Shia from Parachinar in Kurram Agency, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Turi ethnicity, Shia religion, membership of a particular social group comprising Turis from Parachinar, and/or imputed political opinion of opposition to the Taliban (and its ideals) and other militant Sunni groups (due to his status as a Turi Shia; his associated with his uncle; his work as a driver servicing local Shias; and his being associated with Western values); or any other Convention if returned to Pakistan now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s 36(2)(a).

10    For similar reasons, the Tribunal held that it did not accept that there was a real risk that the appellant would face significant harm as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan: ibid at [76]. Therefore, the appellant did not satisfy the criterion in s 36(2)(aa) of the Act.

Federal Circuit Court’s decision

11    The appellant sought judicial review of the Tribunal’s decision in the Circuit Court. The appellant’s amended application contained two amended grounds of review. Only the first ground of review advanced by the appellant is relevant to this appeal.

12    The appellant’s first ground of review was that the Tribunal “constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by misapplying the “real chance” test in assessing whether the [appellant] had a well-founded fear of persecution if returned to Pakistan”. As will be further explained, the appellant contended before the Circuit Court that the Tribunal had fallen into error by undertaking a comparative evaluation of the levels of violence, safety and state protection relative to an earlier point in time rather than objectively assessing as at the date of its decision whether there was a real chance the appellant may suffer serious harm for a Convention reason in the relevant area of his homeland of Pakistan. The appellant submitted that the Tribunal in this case had made the same error as committed by the decision under review in CID15 v Minister for Immigration and Border Protection [2017] FCA 780 (CID15), the facts of which will be detailed below.

13    The Circuit Court found that the Tribunal did not commit the type of error identified in CID15: CJE16 v Minister for Immigration & Anor [2019] FCCA 835 (FCCA Reasons) at [12]. The Circuit Court noted that, whilst it was true, as the appellant had submitted, that much of the Tribunal’s reasoning referred to improvements in the security situation in Kurram Agency relative to the previous situation, those references were necessary in view of the extensive country information which indicated that the security situation in Kurram Agency had previously been very bad. The Circuit Court expressed at [13] that the Tribunal was entitled to prefer some country information to other information and was required to have proper regard to the more recent country information. The Circuit Court ultimately held at [15] that the findings of the Tribunal were not inconsistent with the subsequent finding that the appellant did not face a real chance of serious harm. Accordingly, the Circuit Court dismissed this ground of review.

14    The Circuit Court found that the appellant had failed to demonstrate that the Tribunal had committed a jurisdictional error. On that basis, the appellant’s judicial review application was dismissed with costs.

Appeal to this Court

15    By way of notice of appeal dated 24 April 2019, the appellant appealed the decision of the Circuit Court. The appellant relied on the following two related grounds of appeal:

1.    The Federal Circuit Court erred by not finding that the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) was affected by jurisdictional error in that the Tribunal failed to exercise its jurisdiction, or failed to carry out its statutory task, by misapplying the “real chance” test in assessing whether the applicant had a well-founded fear of persecution if returned to the Kurram Agency in Pakistan.

Particulars

a.    Rather than undertake an objective assessment of the risk to the applicant of facing serious harm at the time of the Decision, the Tribunal only had regard to:

i.    Comparative assessments of the security situation in Pakistan, relative to an earlier time or times; and

ii.    Two-year old reports of the subjective feelings of certain individuals who had returned to the Kurram Agency.

2.    The Federal Circuit Court erred by not finding that the decision of the Tribunal was affected by unreasonableness and/or jurisdictional error in that the Tribunal’s finding that the security situation in Kurram Agency had improved to the extent that there was not a real chance that the Appellant would suffer serious harm was based upon:

i)    Comparative assessments of the security situation in Pakistan, relative to an earlier time or times; and

ii)    Two-year old reports of the subjective feelings of certain individuals who had returned to the Kurram Agency.

16    The hearing of the appeal was held on 22 August 2019. The appellant was represented pro bono by Mr Henderson of counsel. The Minister was represented by Ms Campbell of counsel.

17    The appellant submitted that rather than objectively assessing whether there was a real chance the he may suffer serious harm for a relevant reason in the relevant area of his homeland of Pakistan, the Tribunal considered a comparative evaluation of the levels of violence, safety, and state protection relative to an earlier point in time. According to the appellant, the Circuit Court found, correctly, that the level of security in secular and generalised violence had recently improved, but it was erred in concluding that this improvement was to an extent that there was not a real chance of the appellant suffering serious harm. In doing so, the Tribunal committed the same form of error as that established in CID15. It was submitted that this conclusion was reached without any actual consideration of the extent of the improvement and the conclusion of the Tribunal was therefore without any proper foundation.

18    The appellant also submitted that the Tribunal had committed a further error by relying on a 2014 UNHCR report that recounted the experiences of various informants to have returned to the Upper Kurram Region. The appellant noted that the report was two years old and moreover argued that it was irrational for the Tribunal to rely on the subjective experiences of the returnees to found an assessment as to the objective level of risk of relevant harm to the appellant if returned to Pakistan.

19    The Minister submitted that the Tribunal did not commit the errors for which the appellant contended. In the Minister’s submission, the Tribunal applied the correct test and undertook a meaningful assessment of the level of risk in Kurram Agency and Pakistan. It was further submitted that the Tribunal’s decision could not be said to be legally unreasonable.

Consideration

Error in CID15

20    As explained, the appellant primarily relied on the decision of Moshinsky J in CID15 v Minister for Immigration and Border Protection [2017] FCA 780 to argue that the Tribunal had committed a jurisdictional error.

Moshinsky J in CID15

21    The applicant in CID15 was a Pakistani national and a Shia Muslim from Parachinar in the Kurram Agency. Unlike the present case, both the delegate and the Tribunal in CID15 accepted that the applicant faced a real chance of serious harm if he returned to Kurram Agency because of his religion. The applicant’s judicial review application to the Circuit Court (and then on appeal to the Federal Court) was in respect of the finding that it was reasonable for the applicant to have relocated to another region of Pakistan.

22    In coming to its conclusion that the applicant was in a position to relocate to an urban centre where he would not face a real chance of serious harm, the Tribunal in CID15 relied on several country information reports in support of the finding that the security situation in some of these urban centres was relatively safe. This included the following findings by the Tribunal at [48]-[49] of its decision:

The Tribunal acknowledges that Islamabad and Rawalpindi - for example - are not entirely immune from security incidents, including sectarian violence. Nonetheless, the Tribunal notes that DFAT’s assessment that the security situation in Islamabad (and Lahore) is relatively free from politically-motivated, terrorist and sectarian violence.

As discussed, DFAT reports that Pakistan has struggled with security threats from terrorist, militant and sectarian groups but it is a diverse country and the security situation varies greatly over time and from place to place, with urban centres tending to be more secure than rural areas. It assesses that in many cases there are options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan. It has said that large urban centres such as Islamabad are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of state protection.

(Emphasis added.)

23    Moshinsky J, overturning the decision of the Circuit Court, held in CID15 that the Tribunal had committed a jurisdictional error by comparing the relative safety of geographical regions in Pakistan. His Honour’s construction of the reasons of the Tribunal differed from that undertaken by the Circuit Court:

40     … the basis upon which the primary judge concluded that the Tribunal had not made a jurisdictional error was that the Tribunal was not, when using phrasing including “relatively”, comparing the safety of urban centres with Kurram Agency or other areas, but was expressing a view about the urban areas being relatively safe as opposed to being absolutely safe. In my respectful opinion, this is not a correct construction of the Tribunal’s reasons.

…

48     … I do not accept that the Tribunal was using phrasing such as “relatively” in the sense of ‘relatively safe’ as opposed to ‘absolutely safe’ (as concluded by the primary judge) or as meaning ‘mostly, albeit not absolutely’ (as submitted by the Minister). To the contrary, the matters set out above demonstrate that the Tribunal used words such as “relatively” in [42], [48], [49] and [52] to signify a comparative assessment of the level of violence, the level of safety or the degree of state protection in one place as compared with another.

…

50     … Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative, rather than an objective, approach in applying the ‘real chance’ test in the context of the internal relocation issue. … It is true that the Tribunal correctly stated the ‘real chance’ test at the beginning of its consideration of the relocation issue (at [38]) and expressed its conclusion (at [51]) in terms of the ‘real chance’ test. But this does not overcome the difficulty that its findings on the issue (at [48]–[49]) were merely relative findings rather than findings that would sustain the conclusion at [51].

24    Moshinsky J thus summarised his conclusion as follows:

10    In my view, on the true construction of the reasons, the Tribunal was comparing the safety of different areas within Pakistan. Putting the matter simply, the Tribunal’s finding was to the effect that certain urban areas were safer than Kurram Agency, rather than that they were safe. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative rather than an objective approach in applying the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.

Full Court in CGA15

25    The decision of Moshinsky J in CID15 was subsequently relied upon the appellant in the Full Court’s decision in CGA15 v Minister of Home Affairs [2019] FCAFC 46 (CGA15). The appellant in CGA15 was also Pakistani who had lived in Parachinar in the Kurram Agency before fleeing to Australia. Similar to the facts of CID15, the Tribunal in CGA15 accepted that there was a real chance the appellant would face serious or significant harm if returned to his home region in the Kurram Agency but found that there was not a real chance that, as a Shia, he would face such harm in cities outside that region such as Islamabad or Rawalpindi.

26    The appellant in CGA15 accepted that the Tribunal expressed its ultimate conclusion in appropriately objective terms, but argued in his first ground of appeal that the Tribunal’s actual reasoning erred by using a relative rather than an objective measure of safety by stating that:

(a)    it informed the appellant that there were other places which were “considerably safer” than his home region and queried whether he considered going to another place such as Lahore, Islamabad or Rawalpindi;

(b)    Islamabad and Rawalpindi were “relatively free” from terrorism and sectarian violence;

(c)    there are a number of areas within the country that are “relatively free” from the threat of various forms of violence;

(d)    levels of sectarian violence in Punjab are “lower relative to the rest of Pakistan” and sectarian violence has declined since the 1990s; and

(e)    the appellant could relocate safely to Islamabad or Rawalpindi “…given the relatively low levels of sectarian violence” in those cities.

27    The Full Court, constituted by Murphy, Mortimer and O’Callaghan JJ, held that it was not satisfied on the balance of probabilities that the Tribunal fell into error. This was fundamentally because the Full Court was not persuaded, when the Tribunal’s reasons were read fairly and as whole, that the Tribunal assessed the risk of harm that the appellant would face on a relative rather than an objective basis: CGA15 at [27]. Key to this conclusion was that the Tribunal made other significant findings as to that risk in plainly objective terms: ibid at [28]. The Tribunal also relied on a DFAT Report which assessed the risk of harm to Shias in objective terms: ibid at [31]. The Full Court concluded as follows at [32]:

On a fair reading we do not consider the Tribunal’s use of relative language at some points of its decision supersedes the objective findings it made, in particular its finding (at [40]) that outside of areas such as the appellant’s home region the risk of generalised and sectarian violence for Shias is objectively low. Unlike the decision in CID15 the Tribunal did more than merely recite the proper test in its conclusion; it made substantive findings and engaged in reasoning such that we are not persuaded that it misunderstood or misapplied the test.

28    The different results between CID15 and CGA15 thus emphasise the importance of the process of construing the relevant decision-maker’s reasons. In this regard, the observations of the Full Court in CGA15 at [25]-[26], with which I respectfully agree and adopt, are instructive:

The question as to whether the Tribunal's reasons disclose a misunderstanding or misapplication of the “real chance” test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The Court’s focus must be whether having regard to the Tribunal’s reasons in this case it is more probable than not that the Tribunal misunderstood or misapplied the test. The appellant has the onus to show jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [4] and [41] (SZMTA) (Bell, Gageler and Keane JJ).

The mere fact that a decision-maker expresses his or her ultimate conclusions in terms which reflect the visa criterion (as the Tribunal did in this case) does not definitively show that it applied the correct test. In many cases the substantive part of the decision-maker’s reasons, rather than recitations in the introduction or conclusions, will be a more reliable guide as to whether the Tribunal applied the correct test. It is the reality not the appearance which matters: SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723; [2003] FCA 1387 at [30] (Mansfield J); see also Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 (Kirby J).

Matter of terminology

29    I wish to make a brief observation in passing. The relevant distinction drawn in CID15 and CGA15 was between a “relative” assessment and an “objective” assessment. However, in my view, it is more correct to characterise the relevant distinction as between a “relative” assessment (i.e. an assessment of the chance of harm considered in relation, or in proportion to, something else (e.g. a previous point in time)) and an “absolute” assessment (i.e. an assessment of the chance of harm considered independently of anything else). The balance of these reasons adopt this latter nomenclature.

Temporally relative assessments

30    For the appellant to have satisfied the refugee criterion under s 36(2)(a) of the Act, he was required to established that he possessed a “well-founded” fear of persecution for prescribed reasons if returned to Pakistan. Fear of persecution will be “well-founded” if there is a “real chance” that the applicant will suffer the claimed persecution in the reasonably foreseeable future: s 5J(1) of the Act. A “real chance” is a prospect that is not “remote” or “far-fetched”: Chan Wee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389 per Mason CJ, 398 per Dawson J, 407 per Toohey J and 429 per McHugh J.

31    The Full Court in CGA15, referring to the decision of Moshinksy J in CID15, expressed the following at [23] about the “real chance” test:

The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J.

32    In this appeal, the appellant contends that the Tribunal misapplied the “real chance” test in assessing whether the appellant had a well-founded fear of persecution if returned to the Kurram Agency in Pakistan. The appellant seeks to draw a parallel between the Tribunal’s reasoning in the present case with the reasoning found to be flawed in CID15. The difference between this case and CID15 (and CGA15) is that the analysis of relativity in which the Tribunal is alleged to have engaged in is on a temporal basis, rather than a geographical basis. In my view, the warning in CID15 and CGA15 about assessing a “real chance” on a relative basis is applicable to a temporally relative analysis of that chance.

33    The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk is less severe at the relevant point in time than it was previously. It is plain that the mere fact that a person might be safer at the relevant point in time (B) than at an earlier point in time (A) does not entail that the person does not face a real chance of persecution at point in time B. For example, if point in time A was very unsafe and point in time B is relatively safer it might still be the case that a person faces a real chance of serious harm at point in time B.

34    Caution should be exercised, however, in the application of this principle in construing the reasons for the decision under judicial review. The mere reference in the reasons of a decision-maker to a risk existing at a point in time previous to the time at which the decision is made does not, by itself, warrant the conclusion that the decision-maker has misapplied the “real chance” test. Neither does a mere reference to the degree of risk having improved over a period of time. There are two key reasons for this.

35    The first reason relates to the nature of the country information before the decision-maker. The decision-maker in this case—the Tribunal—was required to undertake the “real chance” test as at the date of its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [101] per Hayne and Heydon JJ. But a decision-maker such as the Tribunal will not have access to up-to-the-minute country information. In considering and relying upon relevant country information, there will naturally be a gap in time between the date on which any relevant events influencing an assessment of risk occur and the date on which that events are reported in the country information. There will be a further gap in time between the reporting of the country information and the date at which the decision-maker is to assess any risks of harm to the applicant. As such, although decision-makers should ordinarily give precedence to the most current relevant information, it cannot be expected that decision-makers must only rely on country information published at, or immediately prior to, a decision being made. It is therefore to be expected that the reasons of the decision-maker, in assessing any relevant country information, will contain references to risks expressed to prevail at a point in time previous to the publication of those reasons.

36    Second, the decision-maker will naturally assess the application for protection by reference to the particular claims for protection advanced by the applicant, and the particular events which are said to support those claims. As such, where, for example, the applicant raises a particular event in the past as supporting his or her fear of persecution, the decision-maker will be required to consider the risk of that event occurring again if the applicant is to return to his or her receiving country. In doing so, it would be unsurprising for the reasons of the decision-maker to express a view as to any change in the assessment of risk over that period. This, of course, does not excuse the decision-maker, for the purposes of determining the application, from having to form a view, as at the date of decision, as to the absolute chances that the applicant will suffer the claimed persecution in the reasonably foreseeable future if returned. Ultimately, whether the relevant decision-maker has engaged in a misapplication of the “real chance” test depends on the construction of the decision-maker’s reasons as a whole and, in particular, the substantive part of those reasons, rather than recitations in the introduction or conclusions.

No error by the Tribunal in this case

37    In this case, for the reasons explained below, I am not satisfied that the Tribunal fell into error as alleged by the appellant. When the Tribunal’s reasons are read fairly and as a whole, I am not persuaded that the Tribunal misunderstood or misapplied the relevant test by assessing the risk of harm that the appellant would face if returned to his home region in the Kurram Agency on a temporally relative basis.

38    The appellant’s claim for protection was, in broad terms, that there is a real chance that he will be persecuted by the Taliban on his return to Pakistan by reason of the appellant being a member of the Turi tribe and a Shia Muslim. To assess this claim, the Tribunal, as would be expected, was required to consider a range of country information in relation to the security situation in Pakistan. In analysing this country information, the Tribunal expressed various findings about the changes in security in Pakistan, and Kurram Agency more specifically. This required relying on country information published prior to the date of the Tribunal’s decision. These include the following statements in the AAT Reasons (with emphasis added in bold):

(a)    “there is credible country information that indicates that the situation has improved significantly in the FATA, including Kurram Agency, since this time [i.e. since certain bomb blasts in July 2013]” ([59]);

(b)    “The FATA Research Centre (FRC) said in its Annual Security Report 2014 that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014…” ([60]);

(c)    “in its Annual Security Report 2015 the FFC stated that the year marked a significant decline in terrorism-related incidents in the tribal areas of the FATA” ([62]);

(d)    “Other sources [i.e. UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, dated November 2015 but referring to an Austrian fact finding mission to Pakistan dated July 2015, and 2014 report of the Pakistani Institute for Peace Studies] confirm that the overall security situation in Pakistan has improved” ([64]);

(e)    “The most recent DFAT report on Shias in Pakistan, dated 15 January 2016, a copy of which was provided to the applicant’s representatives at her request, also indicates that the security situation in Kurram Agency has improved” ([65]);

(f)    “Significantly, this report [i.e. the DFAT report dated 15 January 2016] records a change from the previous report of April 2015 in DFAT’s assessment of both the risk of sectarian violence in the FATA (from moderate to low) and the level of generalised violence in the FATA (from high to variable throughout the FATA but low in the Kurram Agency)” ([66]); and

(g)    “Having carefully considered the available evidence, the Tribunal considers the weight of the evidence indicates that there has been a significant and sustained improvement in the security situation in the Kurram Agency since 2013/14” ([69]).

39    However, alongside these references are various statements supporting findings that the risk of harm was low in an absolute sense:

(a)    “In its Thematic Report on Shias in Pakistan [i.e. dated 15 January 2016], DFAT assesses that there is a low risk of sectarian violence for most Shias in Pakistan generally and a moderate threat of sectarian violence for prominent Shias such as high-profile professionals. The Tribunal finds that the applicant does not fit this definition of prominent Shias” ([56]);

(b)    “Based on the totality of the available evidence, considered individually and cumulatively, the Tribunal concludes that the applicant does not have a profile based on his familial connection to his murdered uncle; and/or due to his work as a driver, that makes him a specific target for the Taliban above other Turi Shias from Kurram Agency” ([56]);

(c)    “Having considered matters both individually and cumulatively, the Tribunal concludes that the applicant does not have a profile, including as a traitor and as a spy, that places him at higher risk of harm than other Turi Shias from Kurram Agency because of the death of his uncle, his work as a taxi/courier driver in Kurram Agency, and/or his status as a person who has lived in Australia, a western country with a Christian heritage, as an asylum seeker” ([57]); and

(d)    in the course of referring to the DFAT report dated 15 January 2016, “DFAT assesses there is a low level of sectarian violence overall in the FATA” and “DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies” ([65]).

40    These matters led the Tribunal to conclude at [68], [70] and [73] of the AAT Reasons, as extracted above at [9], that there was not, in absolute terms, a real chance that the applicant would face the relevant persecution upon return to Pakistan.

41    My view is that a fair reading of the Tribunal’s reasons as a whole reveals that the Tribunal did assess, in an absolute sense and as at the date of its decision, whether there was a real chance the appellant would suffer a real chance of persecution occurring if returned to Pakistan. Whilst the Tribunal expressed some findings as to the risk of harm the appellant would face in temporally relative terms, these references do not establish that the Tribunal misapplied the relevant test.

42    The references in the Tribunal’s reasons to the changes in the security situation in Pakistan, and Kurram Agency more specifically, should be read in light of the claims advanced by the appellant and the circumstances of the case. The appellant was born in Parachinar in Pakistan. His uncle was killed in 2009 by the Taliban. The appellant was close to being killed as a result of a suicide bomb attack on 17 February 2012, shortly before he left Parachinar in April 2012. He left Pakistan because he was sure that he would be killed by the Taliban. These events founded the central bases for the appellant’s fear of harm should he return to Pakistan.

43    In these circumstances, it is understandable that the Tribunal would place attention on any shifts in the nature and extent of risks posed in Pakistan between the occurrence of these events and the date of the Tribunal’s decision—25 July 2016. To do so, it considered the country information relevant to the appellant’s claims. In considering these matters, it referred to various reports in relation to Pakistan, including the FATA Research Centre’s Annual Security Report in 2014 and 2015, UNHCR reports in 2014, a report by the South Asia Terrorism Portal in 2015 and DFAT’s Thematic Report Shias in Pakistan dated 15 January 2016. These materials sometimes expressed their findings in terms of relative changes in security in Pakistan over the previous years and sometimes in the form of an absolute assessment of the security situation at a particular point in time.

44    The mere references to findings in these reports that the security situation in Pakistan, and the Kurram Agency, had improved over certain periods of time does not mean that the Tribunal engaged in a temporally relative analysis of the harm to the appellant if he returned to Pakistan. The Tribunal was simply referencing the findings of the country information before it. What was critical was that the Tribunal did not use that information to misapply the “real chance” test. The key conclusions of the Tribunal were expressed as follows:

68.    … Taking into account the most recent DFAT assessment, as well as credible and independent country information from other sources as discussed, the Tribunal is of the view that the weight of the country information indicates that a level of security has been restored to Kurram Agency and general peace restored, to the extent that there is not a real chance that the applicant would suffer persecution amounting to serious harm from the Taliban or other anti-Shia extremist groups or associated groups if he returned to Kurram Agency.

…

70.    The Tribunal accepts DFAT’s assessments regarding the risk of both sectarian violence and generalised violence in the FATA and accepts that there is some level of risk to the applicant. However, the Tribunal finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm for reasons of his Turi ethnicity, Shia religion, membership of a particular social group comprising Turis from Parachinar, and/or imputed political opinion of opposition to the Taliban (and its ideals) and other militant Sunni groups (due to his status as a Turi Shia; his associated with his uncle; his work as a driver servicing local Shias; and his being associated with Western values); or any other Convention reasons.

(Emphasis added.)

45    These conclusions were expressed absolutely, which, in the immediate context, means that they were not formed by comparison to another point in time. Although I heed the instruction given in CGA15—that a statement of conclusion in a decision-maker’s reasons will not always be a reliable guide as to whether the decision-maker applied the correct test—I am not persuaded that the Tribunal misunderstood or misapplied the relevant test. In my opinion, the better construction of the Tribunal’s reasons is that the Tribunal used the country information, including any temporally relative assessments contained therein, to inform its view as at the date of its decision as to degree of risk of relevant harm to the appellant if returned to Pakistan.

Subjective experience of returnees

46    Although it formed only a minor focus of the hearing of the appeal, the appellant also contended that the Tribunal had erred in undertaking the “real chance” test by having regard to, in the words of the notice of appeal, “2-year old reports of the subjective feelings of certain individuals who had returned to the Kurram Agency”.

47    This complaint is a reference to [60]-[61] of the AAT Reasons, where the Tribunal considered a particular report of the UNCHR:

60.    … Furthermore, a UNCHR report from June 2014, which detailed a review of those who had returned to a region in the Upper Kurram area, stated:

2) General situation and security in areas of return

All key informants in the five villages showed satisfaction over the security situation in the area and they shared that they feel safe and secure currently in area of return. They unanimously stated that there is no restriction on their movement and they can freely moved even through they also shared that for security purpose they are stopped at check posts by the security force staff where they are asked to show their identity documents such as CNIC. When entering to the area of origin, there are three checkpoints that the returnees have to cross before entering their area of origin. These checkpoints are guarded by the khassadar and Pakistani Army. It was shared that the military regularly checks identity documents of all those who pass through the checkpoints.

The majority of consulted groups stated that no major security incidents had occurred since their return to place of origin, nor harassment incident has been reported by the returnees.

When asked about the presence of land mines in the villages, all five interviewees stated that they were not aware of presence of such devices and area was cleared by the security force and political administration prior to their return. Two of the interviewed respondents indicated that were briefed about Mine and Risk Education (MRE) at Sholzan Dara embarkation point during return.

61.    The Tribunal finds the UNCHR advice cited above indicates that the returnees were genuinely satisfied with the security situation in the area and felt safe …

(Citations omitted and emphasis added.)

48    The first aspect of the appellant’s complaint about these passages is that the Tribunal relied on a report published in 2014 to inform its decision on 25 July 2016. However, this, by itself, does not constitute error by the Tribunal. As explained, an administrative decision-maker such as the Tribunal will naturally find itself having to consider materials created prior to (sometimes years prior to) the date of its decision. And, as concluded above, my view is that the Tribunal in this case did not err in applying the “real chance” test at the relevant time.

49    The second aspect of the appellant’s complaint was the Tribunal’s reliance on the subjective assessment of the returnees to support the Tribunal’s finding at [61] of its reasons. The appellant submitted that it was irrational for the Tribunal to rely on the subjective feelings of the returnees to support a finding as to objective test of actual safety. Those subjective feelings were immaterial according to the appellant.

50    The appellant moreover contended that it was inapt for the Tribunal to rely on this material given certain deficiencies in the analysis undertaken. The appellant said that the analysis considered a self-selecting group; those returnees who were interviewed were part of the minority of people who had returned to the Upper Kurram area. In the words of counsel for the appellant, “[t]hey returned because they were expecting it to be safe”. Furthermore, the analysis was unreliable, in the submission of the appellant, because there was uncertainty as to whether the returnees were Shia, like the appellant, or Sunni.

51    If the UNHCR report from June 2014, and the experiences of the returnees reported therein, had formed the sole basis for the Tribunal’s conclusion about the level of risk of harm to the appellant if returned to Pakistan, then the appellant’s submissions would have greater weight. In those circumstances, it may have been tenuous to rely on the subjective experience of a limited class of people, of uncertain characteristics, to determine an objective level of safety in a region.

52    The Tribunal’s references to the findings of the relevant UNHCR report should not, however, be read in isolation. The findings of that report formed one of various sources considered by the Tribunal to assess the legitimacy of the appellant’s claims. The experiences of the returnees were but one limb supporting the Tribunal’s ultimate findings. Having read the lengthy reasons of the Tribunal as a whole, I am not satisfied that the Tribunal committed a jurisdictional error by misapplying the relevant test. Nor am I satisfied that the Tribunal’s decision was tainted by legal unreasonableness amounting to a jurisdictional error.

Conclusion

53    For the reasons given above, the Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error. The appellant’s appeal will be dismissed with costs.

54    I also order that the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

Associate:

Dated:        11 October 2019