FEDERAL COURT OF AUSTRALIA

AWU15 v Minister for Immigration and Border Protection [2019] FCA 2008

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed with respect to grounds 2 and 3.

2.    The appeal be otherwise dismissed.

3.    Order 1 of the orders of the Federal Circuit Court of Australia made on 15 March 2019 be set aside, and in lieu therefore it be ordered that the decision of the Administrative Appeals Tribunal be set aside.

4.    The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

5.    The First Respondent pay the Appellant’s costs of the appeal in this Court.

6.    Until further order, pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) these reasons be published only to the parties and the parties are not to further disseminate these reasons.

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

REASONS FOR JUDGMENT

KERR J:

1    The Appellant is a citizen of Pakistan. He is a member of the Yousafzai Pashtun tribe, and a Sunni Muslim.

2    The Appellant was located and detained in Darwin on 8 September 2014. He lodged an application for a Protection (Class XA) Visa (Visa) on 11 October 2014, on the basis of a fear of being killed or seriously harmed by the Taliban and its allies and by the Pakistani government.

3    On 4 December 2014, a delegate of the Minister for Immigration and Border Protection (the Delegate) refused to grant the Visa.

4    The Appellant lodged an application for review with the Refugee Review Tribunal (the Tribunal) on 11 December 2014, submitting some additional documents as well as giving evidence and presenting arguments. On 30 April 2015, the Tribunal affirmed the Delegate’s decision.

5    The Appellant filed an application for judicial review of the decision of the Refugee Review Tribunal under s 476 of the Migration Act 1958 (Cth) (Migration Act) in the Federal Circuit Court of Australia (FCCA) on 29 May 2015. On 15 March 2019, the FCCA dismissed that application.

6    The Appellant lodged an appeal against the decision of the FCCA in this Court on 28 March 2019. He filed an updated notice of appeal on 6 September 2019.

The Appellant’s Claims

7    The Appellant’s initial claims were broadly summarised in a statement attached to his visa application. The Appellant was born in Khaybar Pakhtun Khowah (KPK), which he describes as being in the border area between Afghanistan and Pakistan. His family still live in Swabi, in KPK. He says that KPK is:

a very dangerous place to live now and the security is volatile as it is infiltrated by extremist elements such as [the] Taliban. There are many militant groups operating in our area.

8    The Appellant joined the navy in 2008, soon after finishing school. He says that he joined in the hope that he would be safer by working away from KPK. XXXXXX, XXXX XX XXXXXXX XXXXXXXXXXX XXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXX XXXXXXXXXX:

XXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXX XXXXXXXXXXXXX XXXXXX XXXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXX XXXXX XXXXX XXXXXX XXXXXXX XXXXXXXXXXXXX XXXXXXX XXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXX XXXXXXXXX XXXXXXXX XXXXXXXXXXX

9    He further claims that his work in the navy exposed him to risk from extremist elements:

9.    I left my country because my life, liberty and freedom were threatened by the certain extremist elements such as the Taliban and Al-Qaida. These extremist groups and elements are against the government and anyone associated with the government.

10.    Due to my work in Navy, I haven't been able to freely go back to my family home in Swabi since joining Navy in 2008.1n my breaks, I have only returned there discreetly to see my family for a couple of days and return back to the Navy.

11.    My father was always worried about me when 1 visited them. He always told me not to come if possible and not to reveal to anyone that I am working with the Navy.

12.    My family was always traumatized because of my work and I know they were under a lot of pressure because of my work with the navy.

13.    I always lived in fear when I returned to my family during my breaks.

10    The Appellant claims that on 7 or 8 September 2013, a ship on which he was working was in port in Darwin, Australia. He decided to escape by jumping off the boat and swimming to shore, to end his “continuous torture and trauma”. He says that he “knew there could be sharks and crocodiles in the water” and that there was a “high risk that [he] wouldn’t make it”. After four to five hours he arrived. He was then taken into immigration detention.

11    He claims to fear returning to Pakistan for the following reasons:

23.    I fear being killed or seriously harmed by the Taliban, its allies and extremist elements and the government if I return to Pakistan.

24.    I have always feared the Taliban as they have continuously persecuted people in KPK and since joining the navy; I am a prime target of them as they are fighting the government. XXXX XXXXXX XXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX.

25.    XXXXXXXXX XXXXXXXXX XXXXXXXXXXXXXX XXXXX XXXX XXXXX XXXXXXXX XXXXXXX.

26.    The want to set an example out of me if I were to be returned anywhere in Pakistan. I not only now fear the Taliban and extremists but the government of Pakistan due to fleeing the ship.

27.    For instance, one of the rules that we were thought about during the training was that anyone who leaves the job without prior permission and. notice will heavily be penalized.

12    The Appellant made a further claim during an interview with the Delegate on 15 October 2014, which is relevant to these proceedings. The Appellant claimed that his parents had received threatening letters approximately five to six months earlier, mentioning him by name and saying “your son has joined the Navy and he is with the government and is against us”.

The Refugee Review Tribunal Decision

13    Several important factual findings underpinned the Tribunal’s decision to affirm the decision of the Delegate. Those findings which are material to the present proceedings are as follows:

Findings regarding the letters

14    The Tribunal found that the claim regarding the letters was “added to embellish in an attempt to validate a claim that the applicant faces a real chance of serious harm at the hands of the Taliban”. The letters were not genuine.

15    It is convenient to reproduce in full the Tribunal’s reasoning regarding the letters:

91.    I asked him about the situation of the Taliban and .he referred me to two letters that he had provided to the Tribunal, purporting to be letters from Taliban.

92.    One is dated 15 September 2013 and the other is dated 24 October 2013.

93.    They read:

a.    Dear, we tell you that you leave (give up) the pak navy duty and also tell you that your family member, do not take part in police duty. We give you a warning as we killed teacher Sheraz and Aziz Muhammad of your village. One day like that we also kill you. Our duty is to inform you.

94.    The second one is:

a.    We tell you that you resign from pak Navy service and support us and also tell you that your family member refused the police duty. If you do not agree with us, we will kill you as soon as possible. Our duty is to inform you and after that it is your choice if you want to live or die.

95.     I put to the applicant that I had closely looked at his statutory declaration of 2014, prepared through his agent, and there had been no mention of any letters from the Taliban at that point.

96.    Also in his interview with the delegate there had been a mention in the way the delegate described but no documents or reference to documents.

97.    The applicant said that he had not received the letters until later in 2014.

98.    I said that I had noticed in his written claims that he had gone back to visit his family while he was in the Navy and asked him when the last time he had done that was.

99.    He said that he went back in 2013. And stayed for about a week.

100.    I asked how big the village was and he said it was about 200 houses and, I put to him that, if that was the case I was of the view that it would have been known that he had returned.

101.    He said that his parents had told him not to return as it was dangerous but they hadn't told him about the letters from the Taliban at that stage.

102.    He said that he had gone to his parents in September 2013 but his parents had been very anxious and told him the situation was not good.

103.    He said that he hadn't actually stayed at his parents' home but had stayed with an uncle whose house was about a kilometre away from his family home.

…

179.    The applicant claimed that he was threatened by Taliban and that he was made aware of this i when his family received two letters.

180.     According to the record of decision by the delegate the applicant's account of this was vague and he was unsure of the content of the letters or, even if they were letters.

181.    He provided copies of what he claimed were the letters and they are variously dated September and October 2013, before he left Afghanistan and, around the time he visited his family.

182.    He claimed that his family only told him that the situation was not good.

183.    I pointed out to him that there had been no mention of these letters in his statutory declaration, a document which had been prepared with the assistance of a migration agent and which had been interpreted to him by an interpreter.

184.    I have considered these letters and, find that they are not genuine.

185.    Firstly, there was no mention of the letters when he first lodged his claims through his representative at that time. His claim in regard to his family was that he returned there in breaks but did so discreetly.

186.    Secondly, when he did refer to these documents to the delegate the description was vague and he was unable to say whether or not the letters were addressed to him or to government employees generally. Since, according to his more recent claims he visited his family after this and was aware of the letters prior to being interviewed by the delegate he would have been able to describe this situation in clear detail.

187.    Thirdly, I do not accept that his family would have failed to alert him to the nature of these letters or to fail to prevent him from visiting rather than simply cautioning him in general terms that it was dangerous if, in fact, they had letters referring to his position in the navy.

188.    Neither do 1 accept that he could have avoided detection in is village by merely going to stay in an uncle's house one kilometre away from the family home and remain there for a week.

189.    I find that the letters and this claim have been added to embellish in an attempt to validate a claim that the applicant faces a real chance of serious harm at the hands of Taliban.

(Emphasis added).

Repercussions of desertion

16    A major issue before the Tribunal was a claim by the Appellant that if returned to Pakistan he could face the death penalty as a result of his desertion from the Navy. That claim is not pressed in present proceedings. However, the Tribunal considered other risks to the Appellant’s safety that could flow from his desertion. Its reasoning, as is relevant to the appeal, was as follows:

282.    I have weighed the applicant's role in the navy, the nature of the exercise and the independent material concerning penalties for desertion.

283.    I accept the independent advice from DFAT and the RRT research PAK 34771 of 29 April 2009 cited above that in most cases the charges are dismissed and the deserter is discharged.

284.    On the evidence before me I cannot dismiss the risk of a brief period of custodial detention.

285.    However, the applicant's low profile as a stocktaker, the lack of any evidence to support a claim to be discriminatorily treated or to suffer disproportionate penalties I find, on the evidence before me that any detention would be a matter of the application of a law of general application.

286.    Should a custodial sentence be imposed I accept that the conditions in a Pakistani prison, or naval institution, would be considerably lower than those, for example, in western countries.

287.    However, I find there is no intent to cause harm, there is no disproportionate penalty or discriminatory treatment This, together with the brief period of detention, according to the material before me leads me to find that this does not constitute significant harm in the context of s.36 (2)(aa).

17    Another relevant aspect of the Tribunal’s decision in this regard was that it identified the relevant Pakistani law determining the penalty for desertion, which the Tribunal reproduced as follows:

Definition of desertion 45.

A person is guilty of desertion within the meaning of this Ordinance if he leaves or fails to attend at his ship or place of duty with the intention of remaining permanently absent from duty without proper authority or if, having left or failed to attend at his ship or place of duty in any circumstances, he does any act with the like intention.

Desertion 46.

(1)    Every person subject to this Ordinance who deserts shall -

(a)    if he commits the offence on active service or when under orders for active service, be liable to suffer long imprisonment; and

(b)    if he commits the offence under any other circumstances, be liable to suffer short imprisonment.

18    The Tribunal relevantly found that:

281.    The applicant's desertion was not whilst in action, which carries more serious penalties, and has carried the death penalty, but was whilst on an exercise involving a number of countries, including Pakistan.

Safety risks in Appellant’s home area

19    Regarding the alleged risk to the Appellant’s safety flowing from the security situation in his home area, the Tribunal found as follows:

190.    I do not accept that he is targeted by Taliban or that he faces a real chance of serious harm at their hands.

191.    I do accept that Taliban remains active but, accept the reports, including those provided by the applicant that the state is making efforts to monitor and to prosecute where they can. One such media article is headed "Troops kill 3 militants in first Swabi operation", dated February 2010.

192.    Noting that there had been an increase of acts of terrorism a police officer is reported to have recovered sizeable amounts of arms, explosive and munitions as well as drugs. The article is titled, "Terrorism incidents on the rise in Swabi". 5 January 2014.

193.    A further article, eleven months after this reports "Pakistan government to arrest nearly 7,000 terror suspects" 26 December 2014. This indicates a heightened and effective response to the Taliban activities and, while it was triggered by the killing of 130 students in Peshawar it, nonetheless leads me to find that the state has actively brought the situation under effective control.

194.    A further report in Nation of 17 June 2013 reports on the killing of polio vaccination volunteers and the two people named appear to be the two named in the letters purporting to be from the Taliban to the applicant. This situation indicates an attack on persons who, tragically had a profile of concern to the Taleban, polio workers (See: http://time.com/3608578/pakistan-polio-taliban-public-health/ Militants Gun Down Pakistan Health Workers as Polio Crisis Deepens; Time November 2014.

195.    There is also a report of 13 May 2014 of a navy man being killed in Karachi but the report advised that the motive has been unable to be ascertained.

196.    Having considered the material before me and weighing that information I find that there are Taliban militants active in the Khyber Paktunkhwa area and, at the same time I find that the authorities are actively and effectively engaging with them to protect the people from the area.

197.    Apart from the incidents of terrorism, most of which are targeting specific people or classes of people I find the state has control of the situation.

Safety risks to Appellant by virtue of involvement with the Navy

20    Regarding the alleged risk to the Appellant’s safety flowing from his membership of the Navy, the Tribunal found as follows:

198.    The applicant has sought to claim that he has a profile of interest to the Taliban as a member of the navy.

199.    By his own account that membership is at a low and basic level and, there is every indication that he will no longer be a member of the navy as a consequence of his desertion. I give weight to the letter to his father advising that he will lose his position in the navy.

200.    Even if that was not the case, I have considered the material before me, in particular the media articles provided by the applicant himself and find that the people targeted by Taliban are those people who are in a position to harm or attack Taliban personnel such as police, soldiers or other security officers or those who are involved in programs of concern to Taliban such as volunteers in polio vaccinations or teachers of girls or female students.

201.    I find the applicant's profile as a low level sailor responsible for stocktaking is not one which is of interest or concern to Taliban.

202.    For reasons discussed above I do not accept the letters purporting to be from Taleban are genuine and give them no weight.

The Federal Circuit Court of Australia Decision

21    Only two aspects of the FCCA decision are directly relevant to the Appellant’s appeal in this Court. The first such aspect is the FCCA’s reasoning with respect to the penalty for desertion, which was as follows:

53.    The applicant appears to claim that the Tribunal made findings in relation to whether the applicant was on “active service”, and as to the penalty the applicant would face upon return to Pakistan, which were “devoid of any real thought processes and possibilities'’.

…

55.    In the Court’s view the Minister’s submission that this ground argues that the Tribunal was required to put its thought processes to the applicant adopting the procedure under S.424A of the Migration Act is misconceived. Rather, it appears that the applicant is saying that the Tribunal has not considered a component integer of the applicant’s claim to meet the criteria for a Protection Visa, or not engaged in an appropriate intellectual process thereby leaving the applicant guessing at what particular role a particular issue, in this case the meaning of “active service” in the Navy Ordinance, played, if any, in any facts found in the Tribunal Decision, which on either account constitutes jurisdictional error: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA26; (2003) 77 ALJR 1088; (2003) 197 ALR389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J; Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [62] per Kenny, Griffiths and Mortimer JJ; Lafunv Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ.

56.    The High Court considered the approach a Tribunal ought to take in the Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [133] per Crennan and Bell JJ:

[133] However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.

57.    The Court is also cognisant of the fact that the Tribunal Decision ought not be overzealously examined for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

58.    The applicant was on notice that the issue of whether or not he was on active service or “in action” was an issue to be reviewed by the Tribunal as a consequence of the Delegate’s Decision in which it was concluded that he was on non-active service rendering him liable to a short period of detention and cessation of payment: CB 192 at [29].

59.    The Tribunal was plainly aware that the applicant alleged that he may be killed or seriously harmed by the Government because of a lack of tolerance for dissent and opposition within the Navy: CB 188-190 at [13]; and that the Delegate in the Delegate’s Decision had considered the applicant’s complementary protection claims by reference to the nature of the mission upon which the Navy ship from which the applicant deserted was engaged, and had concluded that it was “non-active service” and that the penalty that the applicant may face would be a period of 7, 14 or 28 days detention and cessation of payment for his period of absence: CB 192 at [29].

60.    The Tribunal went through the circumstances of the applicant’s desertion and what the applicant thought might happen if he was returned to Pakistan, in relation to which the applicant thought he might be executed, and in relation to which the Tribunal noted and discussed with the applicant that the country information that he relied upon for that view was related to the slaughter of school students by terrorists, and the murder of a senior Naval officer by a deserter, and that those matters were not really comparable: CB 200-201 at [115]-[119].

61.    The Tribunal discussed the possible length of the term of imprisonment for desertion with the applicant, and noted that the usual penalty for desertion was summary dismissal with a dishonourable discharge from the Navy: CB 201 at [125].

62.    The Tribunal also:

a)    considered the penalties for desertion which were detailed in a DFAT cable of 11 July 2006 (“2006 DFAT Cable”) and in a Refugee Review Tribunal response of 29 April 2009 PAK34771 (“2009 RRT PAK34771”): CB 204 at [132];

b)    had regard to relevant provisions of the Navy Ordinance with respect to desertion, namely ss.45 and 46, which it set out as follows:

Definition of desertion 45.

A person is guilty of desertion within the meaning of this Ordinance if he leaves or fails to attend at his ship or place of duty with the intention of remaining permanently absent from duty without proper authority or if having left or failed to attend at his ship or place of duty in any circumstances, he does any act with the like intention.

Desertion 46.

(1) Every person subject to this Ordinance who deserts shall-

(a)    if he commits the offence on active service or when under orders for active service, be liable to suffer long imprisonment; and

(b)    if he commits the offence under any other circumstances, be liable to suffer short imprisonment.

c)    found that the charges against a deserter are generally dismissed and they are discharged, however depending on the period of desertion, the deserter may face a period of detention of 7, 14 or 28 days: CB 216 at [273];

d)    took into account the applicant’s “role as a junior stocktaker of rations”, and weighed that against the independent material before the Tribunal, to find that the applicant would not face either the death penalty or disproportionate penalties for his desertion: CB 216 at [278]; and

e)    considered the nature of the naval exercises which the applicant’s vessel was involved in: CB 202 at [129], and found that the applicant’s desertion was not whilst “in action”, but rather whilst on an exercise involving a number of countries, and therefore the penalties applicable to the applicant would either be dismissal and discharge or a brief period of detention: CB 216 at [281]-[284], and it followed that the applicant would not be subjected to significant harm for non-Convention reasons: CB 217 at [286], In making that finding the Tribunal had regard to the particular circumstances of the applicant’s desertion, the media coverage of it, and the request of the Government, made to the Australian authorities, for the arrest and return of the applicant: CB 216 at [279]-[280],

63.    The applicant’s argument before the Court with respect to the alleged error by the Tribunal in its consideration of the issue of “active service” in ss.45 and 46 of the Navy Ordinance is based upon an extract from Wikipedia dealing with “Active Duty”, which, in the Wikipedia extract, is said to refer to fulltime occupation as part of a military force, as opposed to reserve duty, and that in Great Britain and Commonwealth countries the equivalent term is “active service”. A further part of the Wikipedia extract deals with statistical details as to the size of the Pakistan armed forces.

64.    The material relied upon by the applicant seeks, as is expressed in the Applicant’s Final Written Submissions, to reargue the conclusions reached by the Tribunal, arguing that the Tribunal’s conclusion is based on irrelevant material and information, and that the statutory provisions provide for long imprisonment and not short detention as concluded by the Tribunal.

65.    The Court has determined that it ought not have regard to the Wikipedia extract which the applicant seeks to rely upon for the purposes of establishing jurisdictional error in the Tribunal Decision because:

a)    whilst it is a well-established principle that there is no prohibition as such on receiving new evidence in judicial review proceedings, ordinarily the Court should exercise “resistance to the admission of fresh evidence”: MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 at [120] per Gordon J;

b)    it is not open to the Court on a judicial review application to consider material which was not put before the Tribunal, where:

i)    the applicant had more than one opportunity to submit evidence and material over a lengthy period of time, and simply did not take advantage of the opportunity provided to put the Wikipedia extract before the Tribunal: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383; and

ii)    the applicant is effectively inviting the Court to admit new evidence for the purpose of disagreeing with the factual conclusion reached by the Tribunal, as opposed to the new evidence bearing on some jurisdictional error, and that invitation mistakes the role of the Court upon judicial review and seeks to invite the Court to undertake impermissible merits review: SZJMG at [27] per McKerracher J; Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and

iii)    there is no means of knowing if the information in the Wikipedia extract is reliable, and the reliability of the information therein is, at the very least, uncertain.

66.    The Tribunal did not in the Court’s view err by finding that the applicant would not have been liable to long imprisonment for desertion. Section 46 of the Navy Ordinance provides that a deserter will “be liable to suffer long imprisonment”, that is it provides for a maximum penalty, and does not preclude a lesser penalty being imposed, as was found to be the case by the Tribunal in relation to lesser cases of desertion, that conclusion being based on credible country information prepared by DFAT and the RRT as to how s.46 of the Navy Ordinance had recently been applied in Pakistan. The Tribunal also had regard to the letter sent by the Navy to the applicant’s parents which indicated that the penalty likely to be imposed for desertion was the “loss of his job” and the bringing of shame to his family: CB 216 at [274] (and CB 169). The Court notes that the language used in the letter from the Navy to the applicant’s parents is not consistent with any suggestion that the Navy would seek to impose the death penalty or some form of disproportionate penalty upon the applicant. The Court finds that the Tribunal having regard to:

a)    the terms of the statute (the Navy Ordinance) itself;

b)    the relevant country information; and

c)    correspondence sent by the Navy to the applicant’s parents, is relevant material and information upon which the Tribunal was entitled to base its conclusion, and the applicant’s assertion to the contrary is not made out.

67.    It follows from the foregoing that the Court is of the view that there was no error, let alone jurisdictional error, in this regard in relation to the Tribunal Decision and it was open for the Tribunal to make the findings it did on the material before it, and therefore Further Ground 4 does not establish any jurisdictional error in the Tribunal Decision.

68.    Neither party sought to adduce or refer the Court to any statutory or case law definition of the meaning of “active service” for the purposes of ss.45 and 46 of the Navy Ordinance. The Court notes, but has not had any regard to, the fact that there is a definition of “active service” in s.4of the Navy Ordinance: see Evidence Act 1995 (Cth), s.174.

22    The second aspect of the reasoning of the FCCA that is pertinent to these proceedings is the FCCA’s treatment of a claim made by the now Appellant that the Tribunal had erred by “describing the applicant as low profile” and had as a result underestimated the threat that he faced. The FCCA addressed this claim as follows:

[47]    In relation to the applicant’s profile the applicant refers to three media reports which post-date the Tribunal Decision, and in relation to which the applicant does no more than seek to rely upon those reports to dispute the Tribunal’s findings, and as such the three media reports are not materials which the Court can have regard to: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 (UWZATF) at [70] per Barker J; SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 (“SZJMG”) at [27] per McKerracher J. The remaining documents which the applicant now seeks to rely upon, and which predate the Tribunal Hearing, mistake the role of the Court, in that they invite the Court to assess the merits of the applicant’s claims by reference to selected country information: but that is, for reasons set out above: see [18] and [25] above, the role of the Tribunal: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. In circumstances where, as here, the Tribunal has set out the relevant law, and assessed the applicant’s claims by reference to relevant country information (and there was country information referred to by the Tribunal which was specific to the applicant’s home area: CB 207 at [169], 208 at [175] and 209 at [191]-[196], and to his Pashtun ethnicity and religion: CB 211-213 at [216]-[236]) no jurisdictional error in the Tribunal Decision is established by this aspect of the Applicant’s Final Written Submissions. Even if the Court were to be able to have regard to the press reports referred to by the applicant which pre-date the Tribunal Hearing it is to be noted that:

a)    three of the four press reports referred to relate to attacks on major institutional infrastructure, namely a Navy dockyard, an Army run school and a Navy air base; and

b)    the fourth press report relates to the shooting of the then 14 year old peace activist Malala Yousafzai, and would do nothing to advance the applicant’s case on the merits in circumstances where the Tribunal has, in a finding open to it, assessed the applicant as being a low level sailor in the Navy whose profile would not warrant attention from the Taliban. As the Tribunal also observed, the applicant would be likely to be dismissed from the Navy as a result of his deserting his ship in Australian waters. It follows that he would therefore be unlikely to be in the vicinity of the type of infrastructure attacked by the Taliban as referred to in the press reports now sought to be relied upon by the applicant. The comparison to Ms Yousafzai is simply not apt: Ms Yousafzai is an internationally recognised activist whereas the applicant is a low level junior Navy sailor who, in a finding that the Court considers was open to the Tribunal, was found to be a person not of interest to the Taliban.

[48]    In relation to the second aspect of the applicant’s submissions concerning his home area origins, religion, language, tribal affiliations, association with the Navy and way of life, these are all matters which were put to the Tribunal, and considered by the Tribunal, as is evident from the Tribunal Decision summary set out above: see [5] above, and from the country information referred to by the applicant in the Applicant’s Further Written Submissions. Once again, the applicant’s submissions amount to no more than an invitation to the Court to reassess the merits of the Tribunal Decision. This Court cannot substitute its own view in relation to the applicant’s profile and alleged threat from the Taliban for that of the Tribunal. To undertake that task is to engage in fact-finding for the purposes of merits review, which is not a permissible task for this Court on judicial review of the Tribunal Decision: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, particularly where, as here, the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ. The weight to be given to an applicant’s claims and the evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZJSS at [33] per French CJ, Gummow, Hayne, Hey don, Crennan, Kiefel and Bell JJ; SZRTN at [81]-[82] per Katzmann J. It is also well established that the consideration of, and weight attributed to, country information is a matter for the Tribunal and that the Court will generally not interfere with factual findings open to be made based on country information: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11] per Gray, Tamberlin and Lander JJ; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J; Indatissa at [32] per Sundberg, Emmett and Conti JJ. While the applicant may disagree with the country information, or dispute the factual findings drawn from it by the Tribunal, disagreement with a finding does not support a contention the Tribunal failed to consider evidence properly or fairly: SZDFZ v Minister for Immigration & Citizenship &Anor [2008] FCA 390; (2008) 168 FCR 1; (2008) 100 ALD 575 (“SZDFZ') at [40] per Flick J.

[49]    The Tribunal considered all the material put before it in relation to the applicant’s claim to have a profile which would result in his being threatened by the Taliban in Pakistan, both on the basis of his experience in the Navy, and on the claims made peculiar to the applicant’s home area, religion, language, tribal affiliations, association with the Navy and his way of life, and the Tribunal applied itself to that material to make findings which were open to be made in relation the applicant’s profile.

Grounds of Appeal

23    After obtaining representation, the Appellant filed an amended notice of appeal on 6 September 2019. That notice sets out seven grounds of appeal, the first six of which were pressed at the hearing. As the Minister correctly notes in his submissions, Grounds 1-3 and Ground 6 were not argued before the FCCA. The Minister did not however oppose leave being granted with respect to these new grounds in accordance with established exceptions to the principles in Coulton v Holcombe [1986] HCA 33; 162 CLR 1. The Court is satisfied that it should grant leave to permit that course.

Ground 1

24    The first ground is as follows:

1.    The Federal Circuit Court (‘Court’) erred by not considering that the Second Respondent, in finding the letters from the Taliban to be not genuine, fell into jurisdictional error:

a.    By taking into account irrelevant considerations;

b.    By failing to afford the Appellant procedural fairness in relation to the decision; and

c.    In making a finding that was unreasonable or illogical.

Appellant’s Submissions

25    The Appellant submits that the Tribunal’s finding that the letters were not genuine rested on three bases. It is convenient to address the Appellant’s submissions with respect to each of these bases separately.

Failure to mention

26    The Appellant submits the first basis for the Tribunal’s finding was the fact that in his initial statement to the Delegate, AWU15 had not mentioned the letters. It is convenient to reproduce in full the Appellant’s submissions with respect to this basis:

12.    The reliance by the Tribunal on the Appellant’s failure to mention the Taliban letters in his initial statement to the Minister is, in essence, a challenge to the credit of the Appellant. It is correct the statement filed with the Appellant’s protection claim does not make mention of the Taliban letters. However, in relying on the differences between the Appellant’s statement to the Minister and his evidence to the Tribunal, the Tribunal was required to direct itself to exercise care.

13.    The Full Court in SAAK v Minister for Immigration & Multicultural Affairs (‘SAAK’) considered a similar situation, being the failure of an applicant to mention his membership of a certain organisation during his initial interview at the delegate level, where it was later mentioned by the applicant before the Tribunal. As part of its rejection of the applicant’s claimed involvement with the organisation, the Tribunal relied on his failure to initially mention the issue.

14.    The Full Court held that “there is a need for the Tribunal to exercise care in relying on an inconsistency between the first interview and later evidence as the foundation for an adverse credit finding is recognised by the authorities and by text writers. It also reflects modern research concerning the proper approach to the assessment of credit by courts”. It also referred to constraints on assessments of credit and provided a number of reasons why a refugee might not give a complete story of their claim including distrust of authorities and trauma. The Court further considered that:

“Very often the Refugee Review Tribunal expressly refers to the approach it intends to take to the assessment of evidence. There are many examples of Tribunal decisions which acknowledge the constraints referred to by Professor Hathaway and the authorities concerning the assessment of credit. The practice of recording the general approach which the Tribunal intends to take to the assessment of credit is a valuable one. Thereby, the Tribunal reminds itself of the proper approach to its task, and also provides a reassurance to the reader that the proper approach has been taken. In the end, however, the reasons of the Tribunal should disclose whether the proper approach has in fact been taken. This is the safeguard against the problem which arises where the Tribunal records the self direction, but does so in a hollow, formulaic way as a means to attempt to immunise the decision against criticism for failure to take the proper approach to the assessment of credit.”

15.    In the matter at hand, the Tribunal’s consideration of its intended approach to the Appellant’s evidence is scant and is contained at [150] of the reasons. It is not suggested however that SAAK stands for the proposition that the Tribunal must explicitly refer to its approach in the assessment of an applicant’s credibility. The Full Court ultimately found the Tribunal during its process of evaluation had actually demonstrated that it had approached the assessment of credit in a cautious way, notwithstanding the omission of an explicit reference. In SAAK, the Tribunal recorded the applicant’s reason for his failure to mention the issue at the first interview, gave the applicant a further opportunity to present an explanation after the hearing, and then considered the explanations and gave reasons for rejecting them.

16.    The approach taken by the Tribunal in SAAK can be contrasted with the approach it took in this matter:

a.    The Tribunal’s reasons do not mention an explanation by the Appellant for not mentioning the Taliban letters in his original statement. The reasons mention only that the Tribunal had put the omission to the Appellant. Importantly, the Appellant did give the explanation that he mentioned the letters to the Immigration officer.

b.    There is no consideration of the Appellant’s peculiar and extraordinary experience of having, very recently, swum through shark and crocodile infested waters and its impact on his ability to give a considered history of events.

c.    SAAK involved a failure to mention part of a claim at the delegate level. An interview with the Minister’s delegate involves a question and answer style interview and is a reasonable opportunity for an applicant to mention issues. As such, some weight can be given to omissions at that stage. The matter at hand however involves on omission prior to meeting with the delegate. It is not in dispute the Appellant mentioned the letters to the delegate during his interview. The Tribunal’s reasons disclose no consideration or contrast between the nature of the two opportunities.

d.    The Tribunal’s reasons do not mention the Appellant omitted to mention other aspects of his claim in his statement.

e.    There is no consideration that the Appellant’s statement was three pages in length and as such represents a limited opportunity to mention issues. It cannot be expected of applicants to mention every piece of information in a statement, particularly in circumstances where it is anticipated that an interview with the delegate will soon occur and that interview gives the applicant a more detailed opportunity to present his or her claim to the required degree of satisfaction.

f.    There is no consideration in the Tribunal’s reasons that the Appellant did not speak English and that his statement was given via a translator.

17.    A fair reading of the Tribunal’s decision does not demonstrate that it exercised caution in reaching an adverse view of the Appellant’s credibility by failing to mention the Taliban letters in his initial statement.

18.    Further or in the alternative, the Tribunal’s adverse view of the Appellant’s credibility by omitting to mention the Taliban letters in his initial statement, is unreasonable and illogical in light of:

a.    The failure of the Tribunal to assess and consider the considerations raised above at [16]; and

b.    The fact the Appellant mentioned the letters to the Minister’s delegate during his interview. The Appellant told the delegate “his parents received threat letters about him…”

c.    The broad consistencies between the Appellant’s evidence to the Minister and later to the Tribunal.

19.    "No rational or logical decision maker could arrive on the same evidence" to the view that because the Appellant did not mention the letters in his initial letter, his later mention of the letters was not taken to be credible. Similarly, the decision is also legally unreasonable in the sense that it lacks an "evident and intelligible justification".

(Footnotes omitted).

Vagueness of description

27    The second basis on which the Appellant alleges the Tribunal found that the letters were not genuine was its finding that his description of the letters during his interview with the delegate was “vague”, and further its observation that the Appellant could not identify whether they had been addressed to him personally or government employees generally.

28    The Appellant submits that these issues are “in essence” challenges to the Applicant’s credibility. In this regard, the Tribunal’s reasons again failed to demonstrate the degree of caution required by SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367; 121 FCR 185 (SAAK) in that:

a.    It is unclear if the ‘vagueness issue’ and the ‘intended addressee issue’ mentioned at [186] of the Tribunal’s reasons are independent considerations or if the latter is an example of the vagueness complained of. Assuming they are independent considerations, the Tribunal does not explain what of the Appellant’s evidence to the delegate was vague. It’s [sic] failure to do [so] is critical because the reader is left to speculate, impermissibly, about which elements of the evidence might be vague.

b.    Further, the apparent lack of clarity about whether the letters were addressed to the Appellant or to government employees generally is a misunderstanding of the delegate’s decision. The decision, which presumably accurately summarises the Appellant’s evidence to the delegate, says:

i.    “[H]is parents received threat letters about him”

ii.    The letters “did mention his name”

iii.    The letters said (presumably words to the effect of), “your son has joined the Navy and he is with the government and is against us”

iv.    When asked if the brochures were addressed to him, he said they were not but they put them near his home or inside the house and they knew everyone there and they target government employees

In circumstances where the Appellant’s evidence was that the letters specifically mentioned him, it cannot be said there is any suggestion by the Appellant that the letters were addressed generally to government employees. It is apparent however that letters, other than the specific letters directed to the Appellant, were generally sent to government employees.

c.    There is an apparent inconsistency between the Appellant’s comment to the delegate that the letters were not addressed to him and the letters themselves which are addressed to the Appellant. The inconsistency was not considered by the Tribunal.

29    At the hearing, counsel for the Appellant Mr Fuller submitted that “what the Tribunal has done is pick up the findings of the delegate. So it hasn’t made its own independent review of this particular issue.”

30    Mr Fuller further submitted that some difficulties in the Tribunal’s reasoning with respect to this issue flowed from the fact that there were “oddities” in the language the Appellant used before the Tribunal. In his submission, those “oddities” simply reflected the fact that the first language of the Appellant was not English and that he gave his evidence via a translator.

Failure to provide a detailed description

31    The third basis on which the Appellant alleges that the Tribunal found the letters not to be genuine is that it rejected his evidence that his family, whom he had returned to his home area to visit, had not alerted him to the nature of the letters which they had received with respect to him or prevented him from returning. The Appellant appears to submit that this finding led the Tribunal to conclude that the Appellant should have been able to provide a more detailed description of the letters.

32    With respect to this basis, the Appellant makes the following submissions:

… The Appellant’s evidence was:

a.    The Tribunal concluded at [102] that he had visited his parents in September 2013. The conclusion is in error and contrary to the Appellant’s clear evidence that he returned in December 2013.

b.    Prior to going home in 2013, the Appellant’s parents told him not to come because his “life was in danger”. They did not reveal the letter to him at this stage.

c.    It is unclear from the Appellant’s evidence but it seems that when he arrived in Swabi during his visit, he was told about the letters.

d.    Whilst in Swabi, he stayed at his uncle’s house and was not allowed out in public.

23.    The misunderstanding relates to the point in time when the Appellant physically received the Taliban letters. The Tribunal concluded that the “Appellant said he had not received the letters until later in 2014”. This conclusion is not supported by the evidence. The transcripts do not reveal that statement. The document submitted by the Appellant to the Tribunal (which enclosed the letters) does not contain that statement.

24.    The fundamental question that was not asked by the Tribunal was ‘when’ did the Appellant first received the letters. The evidence might be able to establish that he was first made aware of the existence of the letters when he went home in 2013 (as described above at paragraph 22(c)), but it does not establish that he was aware of the content of the letters in any detail, nor precisely when he was first given copies of the them. Had the Tribunal asked this fundamental question and determined that he was in possession of the letters before the interview with the delegate, its conclusion would be have been open. The evidence does not however provide a rational basis for concluding, as the Tribunal appears to do at [186] of its reasons, that he should have been able to describe the letters in detail.

(Footnotes omitted).

33    Apart from addressing those three bases for the Tribunal’s hearing, the Appellant makes a further submission with respect to the letters as follows:

27.    The unreasonableness and/or illogicality of the Tribunal’s conclusion is further highlighted by its apparent acceptance of the letter produced by the Appellant28 from his commanding officer in the Navy. At [41] of its reasons, the Tribunal sets out the contents of the letter. At [274] and [275], the Tribunal appears to accept the letter as genuine. There is no consideration by the Tribunal as to why the Appellant might forge the Taliban letters but present a genuine letter from the Navy. There is no consideration by the Tribunal that the letters all contain attempted translations (presumably by the Appellant), a factor which supports their asserted genuine nature. There is no consideration that all the letters are addressed to the Appellant’s father; another factor supporting the genuine nature of the letters. Finally, there is no consideration that the September 2013 Taliban letter contain a chronologically accurate reference to two workers (‘Sheraz’ and ‘Aziz’) who were killed earlier in 2013 by gunmen. The killing was reported in a news article provided by the Appellant. Notably the two workers were killed in the Appellant’s town of Swabi. The Tribunal was on notice of the article and the apparent link and appeared to accept the killings were committed by the Taliban.

(Footnotes omitted).

34    With respect to the argument advanced by the Minister (described below) that there was an additional basis for the Tribunal’s finding with respect to the letters apart from the three described by the Appellant, namely the Appellant’s willingness to return to his village without taking credible evasive measures (said to be addressed at [188]), Mr Fuller made further submissions. He submitted that:

My reading of the decision is – at paragraph 184 the tribunal says the letters aren’t genuine. Paragraphs 185, 186 and 187, it advances three reasons why that’s the case … [a]nd then paragraph 188 … doesn’t reference the Taliban letters in any way. That is an entirely different matter, and one which, in my submission, has nothing to do with the rationale or the bases for the tribunal invalidating the genuine nature of the letters

… On a common-sense approach, how could [the Appellant’s claim] that he avoided detection in his village merely by staying at his uncle’s house one kilometre away and remain[ing] there for a week … impug[n] whether or not the letters from the Taliban were genuine?

35    In addition to attacking the three bases for the Tribunal’s finding with respect to the letters described above, the Appellant also makes the following further submissions regarding the Tribunal’s reasoning:

26.    In addition to the matters set out above, in reaching the conclusion that the Taliban letters were not genuine, the Tribunal also failed to consider:

a.    The Appellant’s evidence to the Tribunal about the issue given over two days.

b.    The broad consistencies between the Appellant’s evidence to the Minister and later to the Tribunal.

c.    The letters themselves.

27.    The unreasonableness and/or illogicality of the Tribunal’s conclusion is further highlighted by its apparent acceptance of the letter produced by the Appellant28 from his commanding officer in the Navy. At [41] of its reasons, the Tribunal sets out the contents of the letter. At [274] and [275], the Tribunal appears to accept the letter as genuine. There is no consideration by the Tribunal as to why the Appellant might forge the Taliban letters but present a genuine letter from the Navy. There is no consideration by the Tribunal that the letters all contain attempted translations (presumably by the Appellant), a factor which supports their asserted genuine nature. There is no consideration that all the letters are addressed to the Appellant’s father; another factor supporting the genuine nature of the letters. Finally, there is no consideration that the September 2013 Taliban letter contain a chronologically accurate reference to two workers (‘Sheraz’ and ‘Aziz’) who were killed earlier in 2013 by gunmen. The killing was reported in a news article provided by the Appellant. Notably the two workers were killed in the Appellant’s town of Swabi. The Tribunal was on notice of the article and the apparent link and appeared to accept the killings were committed by the Taliban.

(Footnotes omitted).

Minister’s Submissions

36    At the outset, the Minister’s submissions reject the Appellant’s contention that there were three bases for the Tribunal’s finding that the letters were not genuine. The Minister submits that there was a fourth basis for that finding, namely that:

The Tribunal also dismissed the Appellant’s claim that he was able to avoid detection by the Taliban (who were supposedly threatening his life at that time) on return to his village by staying in his uncle’s house one kilometre away in the same village

37    The Minister submits that the Appellant’s willingness to return his village and the “credibility and/or effectiveness” of the evasive measures he took while staying there were directly relevant to the Tribunal’s assessment of the genuineness of the letters, which “purported to articulate direct and personal threats to the Appellant’s life”.

38    The Minister submits that as a result, any error with respect to other three alleged bases for the Tribunal’s findings regarding the letters (which the Minister denies) was not material:

11.    It may be accepted that an irrational finding ‘along the way’ to an ultimate finding as to protection may amount to jurisdictional error. However, where there are multiple bases available to support a particular intermediate finding, and only one or some such bases are able to be impugned, it is submitted that it will often be difficult for a disappointed visa applicant to prove that any error in coming to that intermediate finding deprived him of the realistic possibility of a successful outcome, and therefore was an error which amounted to jurisdictional error. For reasons which are addressed further below, the Minister submits that the Appellant cannot demonstrate illogicality in any basis of the Tribunal’s reasoning with respect to the genuineness of the letters. However, even if the Appellant could successfully demonstrate some illogicality with respect to a basis for its reasoning (which is denied), questions of materiality would squarely arise.

(Footnotes omitted).

39    The Minister further raised concerns regarding the limitations of judicial review with respect to adverse credibility findings, as follows:

12.    Furthermore, the finding here that the letters were not genuine was not based on an assessment of the internal indicators of the authenticity of the document, but instead flowed from the Tribunal’s disbelieving the Appellant on his own evidence on this subject matter. That is, the finding that the letters were not genuine reflected an adverse credibility finding in respect of the Appellant. And while credibility findings are not necessarily immune from judicial review, such findings are par excellence a matter for the Tribunal. Thus, as a Full Court of this Court has recently observed:

A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at 14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

13.    For the reasons given more fully below, it is submitted that there is nothing in the matters identified by the Appellant which would demonstrate illogical fact-finding, let alone which would satisfy such a high bar of “extreme” illogicality. It is convenient to turn now to the two matters which the Appellant claims amount to such illogicality.

(Footnotes omitted).

40    Regardless, the Minister also made submissions with respect to what the Appellant alleged were the sole bases for the Tribunal’s finding that the letters were not genuine:

Failure to mention in statutory declaration

14.    The Appellant complains that the Tribunal relied on the Appellant’s omission of any claim concerning the letters in his initial statement of claims (i.e. statutory declaration) (cf. AWS, pars 12-19). It is submitted that it was open to the Tribunal to weigh the fact that the Appellant had not mentioned such a significant matter as direct personal Taliban death threats sent by letter in his initial claims document (which was settled with the assistance of his migration agents and interpreted to him by an interpreter) against the Appellant’s credibility on that matter.

15.    Notably, this not a matter of omission from an initial interview (sometimes termed an ‘entry interview’) of the kind considered in SAAK v Minister for Immigration and Multicultural Affairs, a case on which the Appellant heavily relies (AWS, pars 13-15). Rather this is an omission from a formal claims document which accompanied the Appellant’s written application for the visa. There is no suggestion in the statutory declaration that the Appellant regarded it as incomplete or provisional [AB 30-32].

16.    In any event, where the Tribunal does not rely solely on a failure to mention a matter at an early stage in arriving at an adverse credit finding (as here), then that failure may legitimately be relied upon and may legitimately add to the Tribunal’s concerns about an applicant’s credibility.

17.    Before turning to the other matters addressed by the Appellant, it is convenient to address some miscellaneous matters arising from the Appellant’s submissions on this point:

17.1    First, it is unclear why the Appellant points to the failure of the Tribunal to set out the Appellant’s evidence in its reasons that he told the Immigration officer about “the slips” (i.e. letters) (cf. AWS, par 16(a)). After all, the Appellant’s complaint is that the Tribunal relied on the omission from the statutory declaration, not from the interview with the delegate (T: [185]).

17.2    Secondly, the Appellant’s complaint that various matters are not explicitly set out in the Tribunal’s reasons as having been taken into account is misconceived (AWS, pars 16(a)-(f), 18(a)-(c)). It is well accepted that “no detailed reasons need be given” for credibility findings, noting that the Tribunal must give reasons for its decision but “not the sub-set of reasons why it accepted or rejected individual pieces of evidence”. Moreover, a lack of reasons cannot constitute jurisdictional error. In otherwise lengthy reasons, it is not incumbent on the Tribunal to set out all the pieces of evidence which bear upon each separate finding which might later bear on a separate credibility assessment.

17.3    Lastly, at least at one point in the Appellant’s written submissions on this topic, the Appellant asserts an error which does not appear to relate to ground 1 of the amended notice of appeal (see AWS, par 17).

Description of letters before delegate

18.    The Appellant separately complains about the Tribunal’s finding that the Appellant’s description of the letters to the delegate was “vague” and its noting that he was unable to say whether or not the letters were addressed to him or to government employees generally (T: [186]).

19.    The Appellant submits the Tribunal does not sufficiently set out its reasoning on this aspect (AWS, pars 21(a), (c)). It is sufficient on that point for the Minister to repeat the observations at par 17.2 above.

20.    The Appellant also contends that the second part of the finding misunderstood the delegate’s decision concerning whether the letters were or were not addressed to him (AWS, par 21(b)). However, it is plain from the delegate’s decision that the Appellant’s evidence to the delegate was confused on this point. Although he said at one point that he was mentioned in the letters, he also said at other points the following:

20.1    they were not letters but “brochures” and were not sent to his parents but were instead “thrown at his home” [AB 92];

20.2    they were not delivered to his home, but were put near his home, and were not addressed to him [AB 92]; and

20.3    the brochures targeted specifically government employees [AB 93].

Not surprisingly, the delegate found this aspect of the evidence to be vague and observed that the Appellant was not able to explain “whether or not they were addressed to him personally or if they were issued generally to government employees” [AB 95], and the Tribunal came to similar unobjectionable conclusions (T: [186]).

21.    The Appellant also contends that there was a misunderstanding by the Tribunal about when the letters were in fact received by the Appellant (AWS, pars 22-23). It is unclear how any such finding affects the matters under consideration. In particular, the Tribunal’s findings at [186] about which complaint is made simply state that since “he visited his family after [the date of the letters] and was aware of the letters prior to being interviewed by the delegate he would have been able to describe this situation in clear detail”. Such a finding does not turn on the Appellant’s personal receipt of the letters, but the fact that, on any view, his claim was that his parents had received and made him aware of the letters before the delegate’s interview. It was open to the Tribunal to consider that vagueness in relation to the nature of a specific threat to his life tended against the Appellant’s credibility in these circumstances. The Appellant’s final suggestion on this point, that the Tribunal was obliged to ask further questions on this matter (AWS, par 24), faces the difficulty that the Tribunal is under no general obligation to make enquiries.

Consideration

41    I am not satisfied that the Tribunal fell into the error that the Full Court (North, Goldberg and Hely JJ) cautioned against in SAAK.

42    What their Honours observed at [21]-[31] regarding the caution that must be applied before a fact-finder places any weight on an omission or falsity in what an applicant for a protection visa has stated during his or her “first interview” remains valid. If regard is not had to that necessary caution, then that circumstance is an error. Depending on the seriousness of that error and its consequences, it potentially remains available as a basis for setting a decision aside for legal unreasonableness.

43    However, understood in context, the “first interview” to which their Honours referred in SAAK is one conducted by officials on or shortly after the relevant person’s arrival. As their Honours note, having regard to Professor Hathaway’s article which they cite, a person at that time may be suspicious of officials and, as would have been the case of the Appellant who had swum ashore in shark infested waters, still be stressed by the circumstances of his or her arrival.

44    That analysis however is not, all things being equal, self-evidently applicable to a written statement prepared at some remove from a an asylum seeker’s arrival, made with the assistance of a migration agent, setting out the basis of their claim. It can be accepted that the principles stated in SAAK potentially can continue to have operation at that point. However the factual basis, for example that the person was still suffering from post-traumatic stress disorder and therefore remained suspicious of officials, would need to be asserted and established. In the present instance, the Minister is correct to submit that no such case was advanced. Accordingly, no reason commends itself as to why the failure to mention any letters or leaflets written by the Taliban making threats towards the Appellant in his written statement might not have been taken into account by the Tribunal as one indicia suggesting that the existence of any such letters was to be doubted as a later invention. That such a later invention may have first been manifested when the Appellant gave oral evidence to the delegate, rather than when giving evidence to the Tribunal, does not alter that position.

45    Once that is accepted, the additional findings of the Tribunal upon which it relied to conclude that the letters were not genuine, viz that the Applicant’s evidence was vague and lacked credibility because of its inherent implausibility, are not readily susceptible to judicial review. I accept that legal unreasonableness is available as a ground of review even as to findings turning on credit. However, to establish legal unreasonableness something more than even strong disagreement with the conclusion reached by a fact-finder is required. While the Tribunal on one view may be thought to have been perhaps too ready to reach the conclusion it did with respect to the letters, its reasoning process exhibits no obvious illogicality.

46    As the Minister submits, it is not open to the Court to substitute itself as the fact-finder. With that caution in mind, I reject the proposition that the Court is entitled to find that the Tribunal went beyond the bounds of what was open for it to conclude on the evidence before it. Even assuming the Tribunal could have reached a wrong conclusion, it did not exceed its authority thereby and did not fall into jurisdictional error.

Ground 2 and Ground 3

47    It is convenient to address both of these overlapping grounds together.

48    AWU15’s second ground is as follows:

2.    The Court erred by not considering the Second Respondent fell into jurisdictional error by failing to consider a relevant consideration, namely the legal and practical consequences for the Appellant of having a “non-bailable” warrant issued for the Appellant’s arrest.

Appellant’s Submissions

49    The Appellant submits that:

63.    The Tribunal was provided with a copy of a warrant for the Appellant’s arrest which was issued on 7 September 2014. The warrant mentions at the top of the page that it is ‘non-bailable’.

64.    The fact that the Appellant will face time in detention before he is sentenced for the offence of desertion was not considered by the Tribunal. The issue of pre-trial detention is particularly relevant to the Appellant’s complementary protection claims in circumstances where the independent country information shows that prison conditions in Pakistan are poor and, further, that pre-trial detention numbers in Pakistani prisons are considerable such that “at time individuals remained in pre-trial detention for periods longer than the maximum sentence for the crime with which they were charged”.

65.    The failure to consider this issue amounts to a jurisdictional error.

(Footnotes omitted).

50    As to the submission of the Minister described below relying on SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL), Mr Fuller drew attention to the aspects of that judgment that provide that “evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn” and that in some cases “the degree of foresight may render the inference compelling”. He suggested that an inference of intent might be drawn where authorities were for example aware that torture or degrading treatment occurred in prisons.

Minister’s Submissions

51    The Minister submits that this ground cannot succeed in light of the Tribunal’s finding that the authorities did not intend to cause harm by the prison conditions in Pakistan. The Minister submits that “no matter how poor the conditions [are] found to be” they are therefore irrelevant to Australia’s complementary protections with respect to the Appellant, in light of the relevant aspects of the definition of “significant harm” in the Migration Act and the reasoning of the High Court of Australia in SZTAL. This submission was also advanced with respect to ground 3, and is addressed in greater detail below in that context.

52    AWU15’s third ground is as follows:

3.    The Court erred by not considering the Second Respondent fell into jurisdictional error by failing to give proper, genuine and realistic consideration to a relevant consideration, namely the country information regarding prison conditions in Pakistan in circumstances where that information was before the Second Respondent.

Appellant’s Submissions

53    Under this ground the Appellant takes issue with the Tribunal’s finding that the Appellant might face a “brief period of custodial detention” on his return, during which conditions of imprisonment would be “considerably lower” than Western standards. The Appellant submits that it is “concerning” that the Tribunal did not identify the source of information underpinning its finding regarding prison conditions. This is said to be because country information before the Delegate and the Tribunal included the following:

a.    DFAT’s November 2013 Country information Report which provides:

“4.9 Section 14(2) of Pakistan’s Constitution specifically prohibits the use of torture for extracting evidence. Pakistan ratified the Convention against Torture (CAT) in 2010. However, Pakistan has yet to pass domestic legislation to criminalise the practice and there are a number of credible reports from international and local human rights groups that torture by police and security forces is widespread.”

b.    The UK Home Office’s Pakistan COI Report which provides:

“Torture remains endemic, widespread, and is typically accompanied by impunity in Pakistan. Extreme forms of torture continue to be documented in the country, including, inter alia: beatings with fists, sticks, and guns on different parts of the body, including the soles of the feet, face, and sexual organs; death threats and mock executions; strangulation and asphyxiation; prolonged shackling in painful positions; use of chilliwater in the eyes, throat and nose; exposure to extreme hot and cold temperatures; mutilation, including of sexual organs; and sexual violence, including rape. Torture is used by the military and intelligence agencies in the contexts of counter-terrorism and armed conflict, but is also widespread in routine investigations by the police.”

In relation to prison conditions, the report referred to a US State Department report which said:

“Prison conditions often were extremely poor and failed to meet international standards. Police sometimes tortured and mistreated those in custody and, at times, killed prisoners inside police facilities. Overcrowding was common, except for the cells of wealthy or influential prisoners. Provincial governments were the primary managers of prisons and detention centers. Human rights groups that surveyed prison conditions found sexual abuse, torture, and prolonged detention prevalent. The groups said that prisons could not be described as correctional institutions because the conditions in many of the prisons were so inhumane that criminals often left more hardened than before their incarcerations.”

c.    The UK Home Office’s report on Pakistani prisons refers to a report by International Crisis Group, an NGO, reported in October 2011 that provides:

‘Prisoner abuse, including torture, by jail staff is rampant’ and that ‘Accountability mechanisms for checking prisoner abuse, corruption and other malpractices on the part of prisons staff are almost non-existent.’ The same report further noted that ‘Massive overcrowding, corrupt, brutal and poorly trained staff and abysmal living conditions have made prisons a hotbed of violence, drug abuse, criminality and militant activity.’

54    In oral submissions Mr Fuller referred to a range of additional materials, for example with respect to deaths in custody.

55    Mr Fuller then raised s 36(2A) of the Migration Act, which defines “significant harm”: the criterion that activates Australia’s complementary protection obligations under that Act. He submitted that the reason for that the alleged inadequacy Tribunal’s reasoning with respect to prison conditions went to jurisdiction was that:

All of these issues go to whether or not, at the hands of the state, this individual will be subject to cruel or inhuman treatment or punishment, torture or degrading treatment or punishment, and they’re the matters listed in 36(2A).

56    As to the proposition, arising during oral argument, that it was open to the Tribunal to choose and weigh the country information before it with respect to the issue of prison conditions as it saw fit, Mr Fuller submitted as follows:

… [I]t’s not a situation where the tribunal said, “Well, I’ve got these bits of information. I’ve got these other bits of information, [and] I’ve made a decision that prefer this other information.” The qualm is with the way the [T]ribunal assessed it in that it had all of this information before it but nowhere in the reasons does it refer to sources of information, nowhere in the reasons does it refer to preferring some information over the other, and that is the … task of review.

And I accept … that it is a matter generally for the tribunal to decide which pieces of information it wants to accept and weigh in its ultimate decision-making process, but what the tribunal is expected to do in undergoing this review which is prescribed by the statute – and it is expected to form a state of satisfaction, and it is expected to participate in a review. And the thrust of the submission, your Honour, is that there … wasn’t even a review. And then the second part of the submission is that if your Honour accepts there wasn’t even a review, the information before it was so serious that it had to have engaged in a review, and that’s where the jurisdictional error arises.

57    In advancing that argument, Mr Fuller referred the Court to the case of Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431.

58    With respect to the argument (described below) advanced by the Minister that the Tribunal’s concision with respect to this issue reflected the fact that the death penalty was the more central issue at the hearing, Mr Fuller submitted that the evidence given by the Appellant before the Tribunal did squarely raise broader claims regarding prison conditions. In any case, whatever was argued the Tribunal did, in fact, “grapple” with the issue of prison conditions and “did so in a manner contrary to what it was required to do”.

59    With respect to the Minister’s argument (also described below) that it was further relevant that the information on which the Appellant relied was only before the Tribunal by reference on the basis that it was before the Delegate, Mr Fuller referred to s 418 of the Migration Act. Mr Fuller submitted that in these circumstances, this provision required all the materials before the Delegate to actually be “transmitted” to the Tribunal.

60    Mr Fuller finally stated that his “ultimate submission” was that given the grave nature of what he submitted to be the risk of the Appellant suffering “degrading, inhumane treatment … torture … and effects from prison conditions … the Tribunal hasn’t approached its task with the level of consideration sufficient for that degree of risk”.

Minister’s Submissions

61    The Minister submits that this Ground:

invites the Court to descend into an impermissible merits review, and ignores the principle that the choice of and weight to be given to country information is a matter for the Tribunal.

62    The Minister further submits that this ground must fail in any case because the Tribunal made a finding that the Pakistani authorities did not intend to cause harm by the poor prison conditions prevailing in that country. At the hearing, Mr Solomon-Bridge submitted that as a result the Tribunal must also be taken to have rejected that cruel or inhuman treatment, torture, or degrading treatment or punishment were a concern given that those aspects of “significant harm” require an intention to cause harm. In its findings regarding prison conditions, the Tribunal must in this way also be taken to have rejected “anything more sinister”. The Minister submits, again relying on SZTAL, that prison conditions in Pakistan (and any extended period which the Appellant might spend within them) are therefore irrelevant to Australia’s complementary protection obligations with respect to the Appellant.

63    Mr Solomon-Bridge made a further point at the hearing. He submitted that the brevity with which the Tribunal dealt with the concerns raised regarding poor prison conditions was not reflective of error, but rather flowed from the fact that this claim was “auxiliary” to the Appellant’s “principal claim” before the Tribunal and the only one which was “squarely put”: namely that the Appellant could suffer the death penalty if returned to Pakistan. The other issues were considered by the Tribunal “on its own behalf, almost charitably for the Appellant”.

64    Mr Solomon-Bridge also emphasised that the information raised by Mr Fuller had not been shown to have been before the Tribunal. Mr Solomon-Bridge accepted that the material can be taken to have been before the Tribunal because it was before the Delegate. However, where a voluminous amount of material was before the Tribunal only by reference Mr Solomon-Bridge submitted that it lay ill in the mouth of the Appellant to complain that materials had been overlooked when he had not drawn the Tribunal’s attention to those materials at the hearing.

Consideration

65    Insofar as the Tribunal was addressing itself to the possibility that AWU15 might, in common with many returnees, face a short period of detention for illegally having departed Pakistan that circumstance, subject to the possibility that substantially changed factors as might emerge with respect to his likely treatment, is not available as a basis for setting the Tribunal’s decision aside: SZTAL.

66    However, that was not AWU15’s case. His case was that he would be subject to arrest for a “non-bailable” offence and for that reason would face, at a minimum, a long period of pre-trial imprisonment in circumstances that would be distinctly different from those facing ordinary returnees. His case was that he would face prisoner abuse, including torture, by gaol staff in circumstances where accountability mechanisms for checking prisoner abuse, corruption and other malpractice on the part of prison staff were non-existent or illusory.

67    In that regard, I reject the Minister’s submission that SZTAL is authority for the proposition that in this quite different factual context “no matter how poor the conditions [are] found to be” in Pakistan’s prisons they will be necessarily irrelevant to Australia’s complementary protection obligation with respect to the Appellant. As Mr Fuller submits, that proposition ignores the aspects of the judgment that provide that “evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn” (at [27]) and that in some cases “the degree of foresight may render the inference compelling” (at [29]). Thus an inference of such intent potentially might be drawn if there is evidence before the Tribunal to establish that the authorities of a particular country are aware that torture or degrading treatment is routinely occurring in their prisons by the actions of state officials and there is evidence that that conduct is tolerated by those authorities.

68    In my view it is self-evident that there was material (see as referred to above at [53]) in the country information before the Tribunal which, at least potentially, may have justified such a finding both with respect to prison conditions in Pakistan and the impunity effectively granted by that state to state officials who torture or degrade prisoners. I reject the proposition that because the prime focus of AWU15’s concern when he appeared before the Tribunal was that he was at risk of the imposition of the death penalty, his alternative claims that he would otherwise face (at least) a period of prolonged pre-trial imprisonment were capable of being dismissed or disregarded. They were claims clearly advanced, albeit in the alternative to his primary claim that he might be executed, which is no longer pressed.

69    In the circumstances I am satisfied that grounds 2 and 3 are made out. It is not for the Court to evaluate the plausibility of the country information to which the Court has referred above at [53] which was before the Tribunal. It is sufficient that the Court accepts that the Tribunal fell into jurisdictional error, given that it was in possession of that country information, when it failed to address a significant claim AWU15 had advanced before it.

Grounds 4 and 5

70    Both parties conveniently made submissions with respect to these grounds together.

71    The fourth ground is as follows:

4.    The Court erred by not considering the Second Respondent fell into jurisdiction error by failing to give proper, genuine and realistic consideration to the Appellant’s likely court sentence in Pakistan.

72    The fifth ground is as follows:

5.    In the alternative to [Ground 4], the Court erred by not considering the Second Respondent fell into jurisdiction error by reaching conclusions about the Appellant’s likely court sentence in Pakistan which were unreasonable or illogical.

Appellant’s Submissions

73    With respect to these two grounds, the Appellant submits as follows:

60.    The Tribunal set out the relevant offence of desertion at [135] of its reasons. The sentences include ‘long imprisonment’ if committed on ‘active service’ and ‘short imprisonment’ if committed in other circumstances. The type of service is critical to the determination of whether the Appellant could be subject to a short or a long period of imprisonment. Further, it is relevant to determining the real risk of harm to the Appellant as a result of Pakistani prison conditions described above.

61.    The Tribunal however gave no consideration to whether the Appellant was on active service or otherwise, nor is there an explanation of the relevant source of a definitional distinction between the two. It appears to have simply accepted, at [29], the delegate’s decision that the Appellant was on non-active service when it referred to his status as ‘not whilst in action’.

62.    The Tribunal failed to give a proper, genuine and realistic consideration to whether the Appellant was on active service or otherwise. Without an evidential basis or reference to its logic stream, the conclusion of ‘active’ service is also unreasonable and illogical.

(Footnotes omitted).

Minister’s Submissions

74    The Minister’s submissions with respect to these grounds are as follows:

33.    Under cover of grounds 4 and 5, the Appellant complains that the Tribunal erred in considering the length of sentence that the Appellant would face on return for desertion. The Appellant submits that a long prison sentence would expose him to a greater risk of significant harm through the poor prison conditions (AWS, par 60). Relevant to this assessment, it is said, was the Tribunal’s assessment whether or not the desertion occurred during “active service” (AWS, par 60).

34.    In this connection, it is not clear on what basis it is said that it was not open to the Tribunal to find that the Appellant’s desertion was not whilst in action (i.e. on active service) (T: [281]; AWS, pars 60-62). The country information before the Tribunal indicated that active service for these purposes was defined as follows: “i.e. during conflict” [AB 204]. The Appellant did not suggest he was at war when his boat sailed into Darwin Port [AB 31]. Rather, the evidence suggested that the Appellant escaped during a maritime exercise between various nations, and not during conflict [AB 203-204], and the Tribunal so found (T: [281]).

35.    In any event, the grounds must also fail for the reasons given at par 31 above – i.e. that no matter what the length of the prison sentence, it could not amount to significant harm because of the unchallenged and independent finding of a lack of intention to cause the relevant harm.

Consideration

75    In my view, neither ground 4 nor ground 5 has been made out. On the evidence before it, the finding of the Tribunal that AWU15 did not desert while on active service was open to it. At no point before the hearing in the Tribunal, or in the court below, or in this Court, has the contrary been persuasively advanced. It was and remains a contention without any plausible foundation. Insofar as the concern that a short prison sentence would be the likely consequence of AWU15’s return arises, my reasons for decision in respect of grounds 2 and 3 above sufficiently address the consequences of any prolongation of pre-trial imprisonment. They need not be separately and further addressed.

Ground 6

76    The sixth ground is as follows:

6.    The Court erred by failing to accept the Second Respondent fell into jurisdiction error by failing to give proper, genuine and realistic consideration to the Appellant’s protection claims by failing to consider the most recent publicly available information and to consider relevant material.

Appellant’s Submissions

77    The Appellant’s submissions with respect to this ground take issue with the Tribunal’s findings that:

(a)    The risk posed by the Taliban in the Appellant’s home area had fallen as the state had largely regained control of that area; and

(b)    The individual risk to the Appellant as a low profile, “low level sailor” was low.

78    Regarding the first point, the Appellant submits that the Tribunal’s finding was contrary to the Appellant’s evidence before it. It is convenient to reproduce in full this aspect of the Appellant’s submissions:

32.    Firstly, the finding of the state’s control of the security situation is contrary to the Appellant’s evidence. The Tribunal was conscious of and specifically mentioned the Appellant’s evidence that the Taliban routinely returned. The Appellant’s actual evidence to the Tribunal was

“…When the (indistinct) no Army there, they would come over there and whatever they want to do they do it. Like, they (indistinct) there, so they use the space. When there's no army they come over there and take what they want to do and they go back.”

33.    The Appellant was asked by Tribunal:

“What I’m asking you at the moment in your home area who is in charge? Is Taliban in charge?”

He responded, “In my area Taliban, whatever they say seems to be agreed upon”

34.    Further, the Appellant gave evidence of a telephone conversation he had with his father approximately two months prior to the Tribunal hearing in which his father told him that “day by day the conditions becoming bad with the Taliban around”

35.    It was also the Appellant’s evidence that, despite other towns having instituted local militias to fight the Taliban, there was no local militia in his area.

36.    The Appellant’s clear evidence to the Tribunal was that the Taliban, despite the military raid in 2009, remained a presence in his local area and remained in control. The Tribunal’s reasons do not demonstrate any consideration of this evidence. The reader is left to speculate as to how the Tribunal considered or assessed this evidence.

(Footnotes omitted).

79    The Appellant further submits that various media reports, DFAT country information and other reports sourced by the Tribunal and provided to it contradict its findings with respect to the security situation in the Appellant’s home area.

80    The Appellant then submits as follows:

44.    The criticism is not to be taken as one which invites a merits review. Rather, the criticism is … squarely directed at the Tribunal’s failure to consider material which is highly relevant to the issue of the Taliban’s continued presence and the state’s ability to control same. The fact that the material is contemporaneous in time and also contradictory to the Tribunal’s ultimate conclusion of control suggests it should have engaged in an analysis and comparison of the competing sources of information. Despite the information being available to the Tribunal, its reasons do not reveal an analysis, let alone a consideration of the information.

45.    In SZMSD v Minister For Immigration & Citizenship, Federal Magistrate Smith neatly explained the relevant/irrelevant material error and said, "the jurisdictional error of 'ignoring', or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker "is required to make his decision on the basis of material available to him at the time the decision is made".

46.    In the alternative, if the Court is however satisfied that the Tribunal did consider and assess the contradictory evidence from the Appellant, from the media reports, and from the independent country information, then it is submitted the Tribunal’s findings were irrational, illogical or unreasonable given the prevalence and content of the contradictory evidence.

(Footnotes omitted).

81    As to the second point, the Appellant submits that the country information before the Delegate in fact suggested that the Taliban’s attacks were less discriminate. It afforded no basis for a finding that the Taliban would target only government workers who were in conflict with it. On the contrary, the Tribunal accepted that the Tribunal had targeted polio vaccination volunteers, teachers and soldiers. The Appellant submits, therefore, that it is “a mere belief of government support linked to their status as representatives of the government or a government initiative that makes them a target”. As a member of the Navy, the Appellant is therefore at risk of attack.

82    The Appellant further submits that the Taliban, in targeting soldiers, cannot be expected to “engage in a logical reasoning process” and to discriminate in its treatment of soldiers and navy personnel.

Minister’s Submissions

83    It is convenient to reproduce the Minister’s submissions with respect to this ground in full:

23.    Under cover of ground 6, the Appellant complains about the Tribunal’s findings on the risks posed by the Taliban in the Appellant’s home area (described as “his region” (AWS, par 28), including as revealed by the country information (AWS, pars 28-53).

24.    The Appellant does not appear to submit that the findings of the Tribunal concerning the Taliban risk in the Appellant’s home area were not open on the material cited in support (T: [191]-[200]). Indeed, the country information set out at length at [71]-[73] of the Tribunal’s reasons and in various media articles provided by the Appellant himself (see e.g. [AB 129, 131, 135]; T: [169]) was probative of the authorities’ suppressing the Taliban in the Appellant’s home area, as the Tribunal found.

25.    Rather, the Appellant points to other country information which it says should have been taken into account or (one infers) given more weight (AWS, pars 31-43, 47-52). The Appellant also places much emphasis upon a 2013 DFAT report which is annexed to his solicitor’s affidavit made 13 September 2019 (despite the Tribunal having before it a later 2015 report). It is also unclear whether the UK Home Office report also heavily relied upon in the Appellant’s submissions (and annexed to the same affidavit) was before the Tribunal at all.

26.    As the Circuit Court below rightly observed, it is not the role of the Court “to assess the merits of the applicant’s claims by reference to selected country information” (FCCA: [47]). As stated by the Full Court on various occasions, the choice of country information, and the weight which it attributes to such information, is a matter for the Tribunal. The Appellant’s submissions run against that fundamental principle.

27.    In any event, and as it happens, the Tribunal referred to and engaged with the country information in some detail (see e.g. T: [35]-[41], [49]-[55], [59]-[60], [69]-[75], [109]-[114], [127]-[129], [132]-[136], [161]-[170], [174]-[177], [191]-[197], [205], [208]-[213], [218]-[221], [273], [277], [283]).

28.    Perhaps more fundamentally, the ground must fail because the Appellant’s attack under this ground is concerned with the findings concerning the Appellant’s home area of Swabi in Khyber Pakhtunkhwa, but ignores the fact that the Tribunal made an independent finding that, whatever the risk in his home area, it was reasonable for the Appellant to relocate to Karachi where he faced no risk of persecutory harm (T: [213]-[215], [249]-[260]). In that connection, the Appellant accepted before the Tribunal that those who were concerned that they faced a real chance of harm were able to leave and seek refuge in other parts of the country (T: [162]), and his evidence was that he had previously lived in Karachi for a number of years without incident (T: [158]-[159], [214], [253], [290]).

(Footnotes omitted).

84    Mr Solomon-Bridge made an additional submission with respect to this ground, namely that the Tribunal made an independent finding at [249]-[260] of its reasons that the Appellant was able to relocate to Karachi. As such, in his submission the Tribunal had found that even if it were wrong in that the Appellant might face serious harm if he went back to his home area he could reasonably relocate to avoid that harm.

Consideration

85    I accept the Minister’s written submissions set out at [26]-[28]. Ground 6 impermissibly seeks merits review of the Tribunal’s decision. Insofar as issues independent of AWU15’s potential liability for imprisonment were in issue, the logic of the Minister’s submission is compelling and must be accepted. Neither the Tribunal nor the Court below fell into error.

Conclusion

86    AWU15 has succeeded on grounds 2 and 3. Those grounds were not the subject of review in the FCCA. Accordingly, although the appeal must succeed and the orders of that court must be substituted for by an order that AWU15’s review be remitted to the Tribunal for determination according to law, I would not make any order for costs in that proceeding. The Appellant is however entitled to his costs in this Court. I will make orders accordingly.

Associate:

Dated:    2 December 2019