FEDERAL COURT OF AUSTRALIA

BLH16 v Minister for Immigration and Border Protection [2019] FCA 1906

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 of the orders of the Federal Circuit Court of Australia be set aside, and in lieu therefore it be ordered that the decision of the Administrative Appeals Tribunal be quashed and the matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3.    Order 2 of the decision of the Federal Circuit Court of Australia with respect to costs be vacated, and in lieu thereof the First Respondent pay the Applicant’s costs as agreed or assessed.

4.    The Appellant pay, as costs thrown away, 2/3 of the costs associated with the preparation of the First Respondent’s written submissions responding to the Appellant’s grounds of appeal as originally advanced, and the costs of appearance by First Respondent’s legal representatives at the adjourned hearing on 20 August 2019. The First Respondent otherwise pay the costs of the Appellant in this Court, as agreed or assessed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J:

1    The Appellant is a Pakistani citizen. He is a Shia Muslim, a Pashtun, and a member of the Turi tribe. He arrived at Christmas Island in June 2012. On 26 November 2016 he applied for a Protection (Class XA) visa (visa). On 10 December 2012, a delegate of the First Respondent (Minister) refused the Appellant’s visa application. The Appellant applied to the then Refugee Review Tribunal (Tribunal) for review, and on 2 December 2014 the Tribunal affirmed the decision of the Minister’s delegate. The Appellant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the Tribunal’s decision. On 31 July 2015, the application was allowed and the FCCA remitted the matter to the Tribunal (by that time the Administrative Appeals Tribunal), differently constituted, for reconsideration. On 10 May 2016, the Tribunal again affirmed the decision of the Minister’s delegate (Second Tribunal Decision). The Appellant again sought review in the FCCA. On 31 October 2018, the primary judge dismissed that application. The Appellant appeals that decision to this Court.

Background and claims

2    The primary judge summarised the Appellant’s claims, the history of the matter and the findings made in the Second Tribunal Decision at [3] as follows:

3.     The submissions of the First Respondent accurately summarised the Applicant’s application in claims and the conclusions of the Tribunal. They are as follows with footnotes omitted:

a)     The Applicant is a citizen of Pakistan. On 23 June 2012, he arrived at Christmas Island. On 26 November 2012, he lodged an application for the Visa with the assistance of his representative. He provided a statement and written submissions (prepared by his representative) in support of his application. The Applicant made claims including that:

i)     he is a Shia Muslim and Pashtun and member of the Turi tribe. He was born in and resided for all of his life (prior to travelling to Australia) in Parachinar (Kurram Agency);

ii)     his father had a grocery shop in Parachinar and the Applicant started working with him (in the shop) when he was about 17 years of age;

iii)     supplies for the grocery shop were purchased from Peshawar and transported back to Parachinar on hired trucks;

iv)     the roads from Peshawar to Parachinar are very dangerous due to attacks carried out on Shia people by the Taliban. In 2007, the Applicant’s father’s delivery truck was looted and destroyed during a journey between the two locations. On another occasion, in 2008, the Applicant’s sister in law died in hospital in Parachinar as it was not safe to transport her to Peshawar hospital;

v)     there are regular bomb blasts in Parachinar. In the most recent one (in May 2012), the Applicant’s cousin was killed;

vi)     there is just one road in and out of Parachinar and Sada which is a Taliban and Sunni dominant area, is on the way. The Taliban catch the Shia people and behead them and mutilate them;

vii)     the Applicant left Pakistan because he did not want to be killed like many other Shia people;

viii)     relocation to another area in Pakistan is not a reasonable option.

b)     On 10 December 2012, a delegate of the Minister made a decision to refuse to grant the Applicant the Visa. The delegate was unable to discount the possibility that the Applicant would be harmed as a result of sectarian violence in the Kurram agency but found that the Applicant could relocate within Pakistan to locations outside of the Federally Administered Tribal Areas (FATA).

c)     On 17 December 2013 the Applicant applied to the (then) Refugee Review Tribunal for review of the delegate’s decision. On 2 December 2014, the Tribunal affirmed that decision. On 6 January 2015 the Applicant applied to this Court for judicial review of the decision of the Tribunal and on 31 July 2015, the application was allowed and the matter remitted to the Tribunal (differently constituted) for reconsideration.

d)     By email dated 8 December 2015 and sent to the Applicant’s representative, the Tribunal invited the Applicant to appear at a hearing. The hearing took place on 2 February 2016 and the Applicant participated with the assistance of an interpreter and with his representative present.

e)     Prior to the hearing (on 19 January 2016) and following the hearing (on 5 April 2016) the Applicant’s representative provided written submissions to the Tribunal.

f)     On 10 May 2016, the Tribunal notified the Applicant’s representative of its decision of the same date to affirm the decision of the delegate.

g)     In the decision record, the Tribunal:

   i)     set out the relevant law; and

ii)     summarised the Applicant’s claims and the evidence provided by him. The Tribunal referred specifically in this context to the Applicant’s arrival interview, statement, written submissions, and evidence at hearing.

h)     The Tribunal accepted that the Applicant was a reliable witness and made findings of fact that largely reflected the Applicant’s account of his background, identity and experiences of living in Parachinar. The Tribunal noted in this regard that the Applicant’s family continued to reside in Parachinar and that, on the Applicant’s evidence, they had not been harmed or received threats since the Applicant’s departure.

i)     The Tribunal accepted that there was a documented history of violence directed at Shias by the Taliban and associated or similar groups throughout Pakistan and in the FATA area, including Parachinar, in particular. However, the Tribunal also observed that the “trend of recent evidence” suggested that there had been some stabilisation in the region and that since the Applicant’s departure from Pakistan in 2012, the number of attacks in Parachinar had significantly reduced.

j)     The Tribunal found, having regard to a range of country information, including country information identified by the Applicant’s representative, that whilst it accepted there was some level of risk to the Applicant in the context of generalised violence, that risk was only remote. The Tribunal considered that the fact the Applicant’s family had remained in the area of Parachinar and had not experienced any harm, indicated that the Applicant had no particular profile that would result in him facing serious harm from the Taliban, Islamic State, Sunnis or other extremist groups or individuals in Parachinar.

k)     The Tribunal was not satisfied that the Applicant had a well-founded fear of harm as a result of his Shia religion, his Turi/Pashtun ethnicity, his actual or imputed political opinion against the Taliban or other extremist Sunni groups and/or sympathisers, or from Islamic State, or his political opinion as someone who is supportive of the West.

l)     The Tribunal also found, given the considerable change in conditions in the Applicant’s home region, that there was no real chance the Applicant would suffer serious harm so as to give rise to obligations of complementary protection.

3    No contention has been advanced that that summary is deficient. I proceed on the basis that it provides sufficient background to enable an understanding of the context of this appeal.

4    In the FCCA the Appellant was represented. By an amended application, he advanced two grounds of appeal:

1.    The Applicant was denied procedural fairness, in that he was not told of the existence of a certificate under section 438 of the Migration Act 1958 nor the existence of material covered by that certificate.

2.    The Tribunal failed to consider a claim arising on the material, or otherwise failed to exercise its jurisdiction lawfully, in that it failed to consider whether the Applicant could safely access Parachinar upon any return to the receiving country Pakistan.

5    The primary judge dismissed those grounds. Only the second ground remains relevant to these proceedings.

6    In respect of ground 2 the primary judge noted at [10] that the Appellant had made post- hearing written submissions to the Tribunal in which he had specifically addressed the issue of travel security if he were required to return to Pakistan. The primary judge observed at [11] that whilst those submission were directed to the dangers involved in relocation, they clearly also addressed the issue of the security of travel within Pakistan generally, including travel from what would be the Appellant’s likely port of re-entry into Pakistan to Parachinar. The primary judge held at [19] that the Tribunal made repeated references to the Appellant’s submissions in relation to security of travel in Pakistan such that his Honour was satisfied that it had specifically considered the safety of the Appellant’s passage to and from the Kurram Agency. Accordingly, the primary judge dismissed Ground 2.

The Appeal

7    On 20 December 2018 the Appellant filed a notice of appeal in the following terms (unaltered):

1.    The tribunal errored in dismissing the grounds of review raised by the applicant.

2.    The tribunal didn’t make an objective assessment of the grounds.

3.    The primary judge erred in failing to find that tribunal didn’t consider evidence that corroborated the first applicant’s claims.

8    An amended notice of appeal was filed on 25 October 2019 in which the three grounds previously advanced were replaced by two grounds:

1.    The Federal Circuit Court erred by failing to find that the Tribunal failed to consider a claim arising on the material, in that it failed to consider whether the appellant could safely access Parachinar upon any return to the receiving country Pakistan.

2.    The Federal Circuit Court erred by failing to find that the Tribunal failed to comply with s 499 of the Migration Act and Ministerial Direction No 56 made thereunder, in that the Tribunal failed to take into account the parts of the assessment in the most recent DFAT Report that were relevant to the appellant’s claims regarding the lack of safe access to Parachinar.

9    Counsel for the Minister, Ms Symons, accepted that the first of those two grounds was in substance the subject of ground 2 in the court below. Ms Symons ultimately pressed no objection to the Appellant being permitted to rely on ground 2 on the same premise, albeit urging the Court not to accept that it was a separate ground.

The Appellant’s submissions

10    The Appellant filed written submissions, which provided that:

14.    The Tribunal at [60] of its decision record relied on the January 2016 DFAT Thematic Report: Shias in Pakistan for the proposition that “the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015”.

15.    That statement was heavily qualified by the statement in the same paragraph of the DFAT report and the Tribunal decision record noting that “the 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures” on the Thal-Parachinar Road.

16.    In any case, the evidence relied on by the Tribunal concerning the safety of the road to Parachinar covered only the road between Thal and Parachinar. The Tribunal’s decision record reveals no consideration of the issue of safe access between the point of entry into Pakistan and the beginning of the Thal-Parachinar Road.

17.    The information before the Tribunal indicated that travellers in remote parts of Pakistan was dangerous; that “many roads in … Khyber Pakhtunkhwa and the FATA fit this profile”; and that Shias had particularly been targeted

18.    The majority of the route from Peshawar and Parachinar would be on roads within Khyber Pakhtunkhwa and the FATA [Federally Administered Tribal Areas]. The portion between Thal and Parachinar falls mostly in Kurram Agency, but the remainder of the route passes through other Agencies within the FATA. That majority portion of the route is therefore not covered by the finding that the Thal-Parachinar Road was open, but it is covered by the evidence that roads in Khyber Pakhtunkhwa and the FATA are particularly dangerous, especially for Shia.

19.    The Federal Circuit Court concluded that the Tribunal’s reference at [60] to the Thal-Parachinar Road being open and references to levels of violence within Kurram Agency indicated that the issue of the safety of access to Parachinar for the appellant had been considered. However, at best any such assessment went no further than travel between Thal (which lies just outside Kurram Agency) and Parachinar. It did not consider the question of safety of travel between the point of entry into Pakistan and the beginning of the Thal-Parachinar Road, being a route outside Kurram Agency but predominantly within the FATA, despite there being evidence before the Tribunal that travel on roads in those areas was especially dangerous.

20.    Furthermore, it is plain from the context of the Tribunal’s reasons between [58] and [65] that that consideration is directed to the question of whether he faced a real chance of serious harm within Parachinar. There is no reference to whether the appellant could arrive safely in Parachinar after being removed to Pakistan.

21.    The Federal Circuit Court therefore erred in finding that the Tribunal’s reference to the Thal-Parachinar Road and the situation within Kurram Agency comprised consideration of the issue of whether the appellant could safely return. It follows that the Federal Circuit Court erred in failing to find jurisdictional error on the part of the Tribunal in failing to consider the claim that the appellant could not safely access Parachinar upon return to Pakistan.

(Footnotes omitted).

The Minister’s submissions

11    The Minister first filed written submissions in response to the grounds of appeal initially articulated. In those submissions, the Minister contended that the Appellant’s submission that the Tribunal had failed to consider his claim regarding access to Parachinar from a point of entry into Pakistan was without merit:

33.    The appellant was on notice, through the questions directed to him and information identified at the Tribunal hearing, that the Tribunal had in contemplation that it might find, due to an improvement in conditions in Kurram Agency, that the appellant could return to Parachinar. This understanding is made explicit in the written submission filed on the appellant’s behalf on 5 April 2016 (see CB 296 in particular).

34.    Despite the appellant not making any claims concerning his access to Parachinar, the Tribunal nonetheless referred to country information to the effect that “the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015” and that “[m]ore than 3,700 families returned to their places of origin in 2014, including Parachinar and surrounding villages in upper Kurram” (CB 332). The Tribunal referred again to the information concerning the Thal-Parachinar Road (CB 334 [60]) and recorded a finding (CB 334 [62]) that it was satisfied that independent reports confirm that a number of people have returned to the Upper Kurram and that UNCHR (sic) reports that they have expressed satisfaction with the security situation and consider that they are safe and secure”.

12    While continuing to rely on those original submissions, the Minister filed further written submissions following the filing of the amended grounds of appeal. They provided, relevantly:

6.    The Tribunal considered and dealt with the appellant’s claim to fear harm associated with his use of the Thal-Parachinar road upon any return to Parachinar.

7.    The Tribunal was not however satisfied that the appellant had a real chance of serious harm for this reason. The Tribunal’s finding was informed by country information that was contained in the DFAT Thematic Report Shias in Pakistan published on 15 January 2016 (DFAT Report). The country information was to the effect that (as at the date of publication), “the Thal-Parachinar Road remains open and…there have been no major security incidents on the road in 2015” and that further “[f]ederal security forces continue to maintain armed checkpoints along the road which is used by both civilian and military vehicles”. The Tribunal also acknowledged that “the 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures”. The Minister notes that the IED attack took place in a market in Parachinar, rather than on the Thal-Parachinar road.

8.    The Tribunal did not explicitly deal with the appellant’s claim concerning travel in the context of relocation as the question of relocation did not arise in circumstances where the Tribunal found that the appellant did not have a well-founded fear of persecution if he returned to Parachinar now or in the reasonably foreseeable future.

9.    The Tribunal considered the claims squarely raised by the appellant concerning his ability to safely travel in and out of Parachinar. This consideration is evident from the Tribunal’s acceptance of country information concerning the security situation in Pakistan generally and the Kurram Agency especially, and in particular, DFAT’s characterisation of the conditions in the Kurram Agency as involving a “considerable stablisation in the region in 2014 and 2015”. The Tribunal also referred to country information, (also contained in the DFAT Report), that reported on the opening of and monitoring of the Thal-Parachinar road by security forces. The Tribunal noted that there had been “significant improvements” in the security situation in Parachinar since the appellant’s departure and that independent reports confirmed that a “number of people have returned to the Upper Kurram and that the UNHCR reports that they have expressed satisfaction with the security situation and consider that they are safe and secure”.

10.    The appellant contends that the “evidence relied on by the Tribunal concerning the safety of the road to Parachinar covered only the road between Thal and Parachinar” (AS [17]). However, this is not borne out by the information that was before the Tribunal (referred to at [4] above) which identified the Thal-Parachinar road as a principal and substantial access road linking the Upper Kurram to the rest of the country (including Peshawar) and the Tribunal’s own finding recorded at [53(g)] of its written statement of reasons. To the extent that the appellant now seeks to rely on evidence (in the form of google maps)11 to argue to the contrary, such evidence was not before the primary judge and in any case, provides little (if any) assistance on the issue.

11.    The Tribunal’s findings, viewed in this context, should be understood as comprehending consideration of the issue of safety of access to Parachinar for the appellant, including upon any removal from Australia to Pakistan. In this last respect, the Minister notes that the appellant had claimed and the Tribunal accepted that the appellant had departed Pakistan from Peshawar airport when he made his journey to Australia.

(Footnotes omitted).

13    Ultimately, this case turns on what both parties accept to be a narrow point. That point is whether the Appellant sufficiently raised a claim before the Tribunal that not only was there risk in him travelling on the Thal to Parachinar Road within the Kurram Agency (which the Tribunal accepted to be the sole road which would permit him to reach Parachinar) but also with respect to travel to reach Thal from another point of arrival in Pakistan.

14    With respect to that point I take it not to be in contention that the road from Thal to Parachinar is entirely within the Kurram Agency. In that regard the Appellant relied upon Exhibit SV3 to the affidavit of Sanmati Verma dated 25 October 2019. That exhibit was admitted without objection for the limited purpose of establishing the relevant geography. I further take it to be uncontentious that factually, to access Thal from any other point in Pakistan would require travel on other surrounding roads.

15    To establish that the Appellant had made those broader claims before the Tribunal, counsel for the Appellant Dr McBeth referred the Court to the following post-hearing submissions filed in the Tribunal on the Appellant’s behalf by his then migration agents:

Travel Security

72.    The security situation on the roads in the FATA area is of particular relevance in assessing whether it would be reasonable for the Applicant to relocate.

73.    If forced to return to Pakistan, the Applicant would live with his wife, and to relocate to another part of Pakistan, the pair would have to travel across dangerous roads surrounding the Kurram Agency.

74.    The Tribunal suggested it may be reasonable for the Applicant to relocate to other parts of Pakistan, noting the Country Report:

5.29 ... There are numerous police checkpoints along highways leading into Islamabad, and at major intersections and prominent buildings within the capital. These provide a strong deterrent to militant groups planning attacks in the capital by increasing the risk of detection.

75.    However, these reports concern the roads surrounding the capital, Islamabad. The Applicant would need to commence travel from the Kurram Agency.

 76.    The Tribunal thus mentioned that:

4.33 ... the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015. Federal security forces continue to maintain armed checkpoint along the road, which is used by both civilian and military vehicles.

77.    Despite the above, the DFAT found that in assessing the security situation on the roads:

4.40 Travel in parts of Pakistan can be dangerous for all Pakistanis regardless of sectarian, religious or ethnic affiliations. Travellers in remote areas of Pakistan are at greater risk' of criminal or militant violence because they are further away from security forces. Many roads in Balochistan, Khyber Pakhtunkhwa and the FATA fit this profile.

78.    The Applicant and his family fit this profile. They would be at greater risk of criminal or militant violence because they are from the FATA area.

79.    Additionally, the DFAT notes that:

4.33 ... The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.

80.    Furthermore, the Country Report states:

2.28 ... DFAT understands that militant sleeper cells remain in many urban centres and continue to target state and civilian infrastructure. The rugged terrain and porous borders in Pakistan's tribal areas and between Pakistan and Afghanistan present ongoing challenges for maintaining security and enforcing the state's writ.

81.    Consequently, it would be unreasonable and unsafe for the Applicant and his family to travel away from the Kurram Agency on roads that may be subject to attacks.

82.    A news report supported this assessment and show that roads are still vulnerable from militant attacks despite the presence of security forces:

Pakistani officials say at least nine security forces personnel have been killed in two separate attacks in the northwestern Mohmand district.

Local officials say two members of the Khasadar force of tribal police died in Darwazgal Yaka Ghund area early on February 18 when militants attacked a security checkpoint.

Seven other personnel of the Khasadar force were killed in an attack against a checkpoint in Post Pandiali area. ...

Mohmand is one of several districts that make up Pakistan's tribal belt near the Arghan border where the military has been battling Al-Qaeda and Taliban-linked militants for more than a decade.

83.    The DFAT assesses other options for travellers:

4142 ... understands that alternatives exist for pilgrims to travel by air rather than road. It is possible to arrange charter air travel from Peshawar to Parachinar or via scheduled services from Quetta to other parts of Pakistan, for example. However, the cost and availability of these modes of transport operate as a barrier to those who are less wealthy.

84.    In the Applicant's circumstances, he and his family come from a poor family background. His father no longer owns the grocery shop. As discussed at the hearing, the Applicant sends what little money he makes in Australia to his family in Pakistan.

85.    Thus, it would unreasonable to expect the Applicant to arrange travel by charter air given his circumstances.

86.    Due to the reasons outlined above, the Applicant submits he has a well-founded fear of persecution and that his profile cumulatively puts him at more risk of persecution for the following factors:

a.    His is from the Kurram Agency in the FATA area;

b.    He is a Turi Shia muslim;

c.    He comes from a family background with limited financial means;

d.    He has had very little education and lacks employable skills; and

e.    He does not have familial networks in other parts of Pakistan.

87.    As reported, Kurram Agency continues to face sectarian violence and has seen an increase in casualties in the past year. The militant groups' support for IS will also threaten Pakistan's security and give rise to further militant attacks and sectarian violence towards Shias.

88.    For all the above reasons, the Applicant would face a real risk of persecution if he was forced to return to Pakistan.

(Footnotes omitted).

16    Dr McBeth submitted that, on their face, those post-hearing submissions referred to the dangers that the Appellant would face if he were to travel across dangerous roads surrounding the Kurram Agency. I note that it is uncontentious that the passage at [77] is extracted from DFAT’s thematic report Shias in Pakistan dated 15 January 2015.

17    Ms Symons submitted for the Minister that notwithstanding those references, the Court should not be satisfied that the issue of potential danger on any roads linking possible points of arrival in Pakistan to the Kurram Agency had been sufficiently identified by the Appellant as to require distinct consideration by the Tribunal. Further, Ms Symons submitted that to the extent such a claim was raised, it was raised only in the context of relocation.

Consideration

Ground 1

18    The question as to whether the issue of the safety of travel beyond the Thal-Parachinar road was sufficiently raised before the Tribunal is finely balanced and not without difficulty.

19    There appears to be no dispute between the parties as to the relevant principles that the Court should apply. They are those as stated in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 by Allsop CJ in which his Honour discussed the decision of the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1 as follows:

[15]    The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

20    The gravamen of that decision is that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it. As his Honour Allsop CJ acknowledged, and as the Full Court had concluded at [63], much depends on the circumstances. If it is asserted that a tribunal has failed to take into account a claim that was before it and that has given rise to error, then that claim must sufficiently arise from the material so as to require a reasonably competent tribunal in the circumstances to appreciate its existence. A practical and commonsense approach needs to be applied in that regard.

21    In my view, finding of the primary judge with respect to the submissions advanced by the Appellant under the heading “Travel Security” at [11] was correct:

11.    Whilst the submission was directed to the dangers involved in relocation, these submissions are clearly addressing the issue of security the security of travel within Pakistan and would include travel from the Applicant's port of re-entry into Pakistan to Parachinar.

22    That finding accords with my own view that that an issue of the safety of travel outside the Kurram Agency did sufficiently arise on the materials that were advanced by the Appellant’s then migration agents before the Tribunal.

23    The learned primary judge then addressed the adequacy of the Tribunal’s consideration of that broader issue as follows:

  12.    At [31] of the Tribunal decision, the Tribunal noted:

The Applicant said that it was still the case that was dangerous to travel on roads, particularly on the five hour trip from Parachinar to Peshawar. He said that that the terrorist groups cut off Shia's hands and arms to scare others

  13.    At [53(g)] Tribunal accepted that:

The Thal-Parachinar road, which is the main access road between the Kurram Agency and other parts of Pakistan, has been subject to considerable violence from extremists directed primarily at Shias travelling on that road.

14.    At [54], the Tribunal made reference to DFAT country information. In the DFAT 2014 Thematic Report, Shias in Pakistan, 15 January 2015 states:

[4.33]    DFAT understands that the Thal-Parachinar road remains open and there have been no major security incident incidents on the road in 2015. Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The December 2015 IED attack in Parachinar highlights a degree of violent vulnerability in these security measures.

[4.34]    More than 3,700 families return to their places of origin 2014, including Parachinar and surrounding villages in upper Kurram. This represents approximately 25% of those formerly displaced — most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine month suspension because of ongoing military operations. From October - November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDP's) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.

…

18.    At [60], the Tribunal stated:

DFAT also reported that the Thal-Parachinar Road remains open and that there have been no major security incidents on the road in 2015. It has stated that Federal security forces continue to maintain armed checkpoints along the road which is used by both civilian and military vehicles, but that the 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in the security measures. Other reports confirm that the road is open and in use and that the movement of trucks has generated increased economic activities and employment opportunities

19.    There are repeated references by the Tribunal to the safety of travel to and from the Kurram Agency, and to the Applicant's submissions in relation to security of travel in Pakistan. It is apparent that the Tribunal has considered claims made by the Applicant as to the safety of travel within Pakistan and has thereby specifically considered the safety of the Applicant's passage to and from the Kurram Agency.

(Footnotes omitted).

24    The findings of the learned primary judge in those passages are in large part incontestably correct. The difficulty is with his Honour’s conclusion at [19].

25    The problem with that conclusion is that the Minister points to no finding by the Tribunal as would support the conclusion that his Honour reached. None is apparent to this Court. Insofar as the Tribunal specifically addressed the issue of safety on the roads on which the Appellant would be required to travel in order to access Parachinar, it did so in terms which appear to be specifically limited to those relating to the Thal-Parachinar Road. In that regard, I refer to the following passages of the Tribunal’s decision:

53.    The Tribunal accepts that

    …

(g)    the Parachinar-Thall road, which is the main access road between the Kurram Agency and other parts of Pakistan, has been subject to considerable violence from extremists directed primarily at Shias travelling on that road;

(h)    when the road reopened there continued to be sporadic attacks by militants against Shias' and the presence of military checkpoints did not prevent militants from attacking convoys travelling on the roads There were further reports in 2014 of passengers killed on the roadside near Parachinar.9 More recent reports also indicate that seven people were killed in an attack in Peshawar in October 2014 when a van was travelling to Parachinar, and most of the deceased were from Parachinar with names which suggest they were of the Shia and Turi groups;

…

60.    DFAT has also reported that the Thal-Parachinar Road remains open and that there have been no major security incidents on the road in 2015. It has stated that Federal security forces continue to maintain armed checkpoints along the road which is used by both civilian and military vehicles, but that the 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.16 Other reports confirm that the road is open and in use and that the movement of trucks has generated increased economic activities and employment opportunities.

(Footnotes omitted).

26    Ms Symons points to the Tribunal’s reasons at [62]:

62.    While the Tribunal considers that, while there is evidence of continued attacks against Shias in Parachinar and the surrounding areas, there have been significant improvements in the security situation in Parachinar since the applicant's departure in 2012, and since the applicant made his application the number of attacks in Parachinar have significantly reduced. The Tribunal is satisfied that independent reports confirm that a number of people have returned to the Upper Kurram and that the UNCHR reports that they have expressed satisfaction with the security situation and consider that they are safe and secure. While the Tribunal accepts that there is some level of risk to the applicant in the context of generalised violence, on the basis of all of the evidence before it the Tribunal finds that this risk is remote. While the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, it is satisfied that there has been continued and continuing stabilisation in the region since the beginning of 2014. The Tribunal considers that the fact that the applicant's family has remained in the area and the Tribunal has not accepted any harm towards them, that the applicant has no particular profile that will result in him facing serious harm from the Taliban or other extremist groups or individuals in Parachinar.

27    Self-evidently, that passage relates to the Appellant’s potential security after arriving at Parachinar, rather than providing any analysis of the risks that he might face in transit.

28    For those reasons I do not think it possible to accept the Minister’s submissions that either the Appellant failed to sufficiently articulate his claim, or the Tribunal addressed that claim.

29    Nor do I accept that the claim having been raised only in the context of relocation stands in the way of concluding that the Tribunal thereby fell into jurisdictional error. That his claim was addressed in that context was essentially an artefact of the way the then Applicant’s case evolved before the Tribunal. As the primary judge was correct to have accepted, the Appellant’s submissions sufficiently raised the matter that is now the subject of review. For that reason, ground 1 must be upheld. For completeness, I note that no submission was made that the error, assuming it were made, was immaterial.

Ground 2

30    As to ground 2, the Appellant submits that there is alternatively jurisdictional error because the Tribunal failed to have regard to the DFAT thematic report Shias in Pakistan dated 15 January 2019 (the DFAT Report) with respect to the dangers of travelling on roads outside the Appellant’s home district. He makes that submission having regard to s 499(2A) of the Migration Act, which obliged the Tribunal to comply with any relevant ministerial directions. Ministerial Direction No 65 had provided as follows:

Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination processes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making that decision. The decision-maker is not precluded from considering other relevant information about the country.

31    Dr McBeth submitted that the Tribunal was therefore obliged to consider the DFAT report, independent of any articulated claim that may or may not have been advanced by the Appellant with respect to such travel.

32    However, I accept the Minister’s submission that when one has regard to cl 1.3 of the DFAT Report (which reproduces the passage of Ministerial Direction No 65 extracted above at [30]) it limits that obligation to a circumstance in which a DFAT assessment is relevant. Absent a sufficiently articulated claim with respect to travel outside the Kurram agency of the kind referred to in NAVK, there would have been no obligation to consider the report because it would not have been relevant.

33    It is therefore only because the report was raised by the then Applicant's submissions before the Tribunal that the Tribunal was required to consider it. So understood, ground 2 adds nothing to ground 1. As a standalone ground, I would dismiss it.

34    On remittal it may be accepted that the Tribunal will be obliged to have regard to that the DFAT Report. However, that circumstance arises in consequence of the Court's acceptance of ground 1. It does not arise independently of the claims which the Appellant advanced.

Disposition

35    The Appellant having succeeded on ground 1 of his appeal, the decision of the FCCA must be set aside and his review remitted to the Tribunal for determination according to law.

36    It is common ground that the Minister should recover costs thrown away by reason of having prepared for a hearing on grounds ultimately abandoned, and in respect of an adjournment which facilitated that process. The parties consented to the Court making a costs order accordingly. Only one of the original three grounds was ultimately pressed. In my view the appropriate order is therefore that the Appellant pay, as costs thrown away, 2/3 of the costs associated with the preparation of written submissions by the Minister which responded to the Appellant’s grounds of appeal as originally advanced, and the costs of appearance by the Minister’s legal representatives on 20 August 2019.

37    The Minister should otherwise pay the costs of the Appellant in this Court as agreed or assessed. The Appellant is also entitled to his costs in the court below. I make orders accordingly.

Associate:

Dated:    18 November 2019