FEDERAL COURT OF AUSTRALIA

ANH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 10

ORDERS

THE COURT ORDERS THAT:

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

2.    The application for an extension of time is granted.

3.    The draft notice of appeal is deemed to have been filed.

4.    The appeal be dismissed.

5.    The applicant/appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Before the Court is an application for extension of time to file a notice of appeal in relation to a decision of the Federal Circuit Court of Australia (FCCA) to dismiss an application for judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) to affirm the decision of a delegate of the Minister of Home Affairs (now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) to refuse the applicant a Protection (Class XA) visa: see ANH16 v Minister for Immigration & Border Protection [2017] FCCA 2373.

2    The applicant (also referred to as ANH16 or the appellant) is a Pakistani national who lived in the Upper Kurram Agency of the Federally Administered Tribal Areas (FATA) in Pakistan. He is a member of the Bangash Tribe and a Shia Muslim. ANH16 came to Australia in July 2012 by aeroplane. He applied for a protection visa in January 2013. ANH16’s claim was based upon the fact that he had worked as a minibus driver on a route between Peshawar and Parachinar. He said that there was an incident in 2007 where the minibus ahead of him in a convoy had a rocket fired at it by the Taliban, killing at least eight passengers and injuring another six, following which the security detail with the convoy returned fire. He said that in 2008 his uncle was captured by the Taliban while travelling on the road to Parachinar and killed. The applicant said that he ceased minibus driving and sold the bus after the attacks, but purchased another minibus and resumed driving in 2011 for about four months ending in March 2012. ANH16 said that he was later warned that the Taliban had threatened to kill Shia Muslims who were driving minibuses. He ceased driving, sold his minibus and soon after came to Australia.

3    A delegate refused to grant ANH16 a visa on 13 March 2014.

4    The Tribunal affirmed the decision of the delegate and issued a decision record (or DR) on 18 February 2016.

Tribunal’s decision

5    The Tribunal accepted ANH16’s claims regarding:

(1)    The security situation in Upper Kurram in 2007.

(2)    An incident in which two cars which were driving in front of him were fired at.

(3)    The death of his uncle in 2008 when he and a number of other drivers were stopped and taken out of their vehicles and beheaded en route from Peshawar.

(4)    The kidnapping by the Taliban of his friend in 2009.

(5)    As a result of the unsafe conditions in Upper Kurram, the applicant gave up his employment as a driver and that he remained in his village working on his farm.

6    The Tribunal did not accept that ANH16 resumed driving for a short period from late 2011 because it did not accept that ANH16 moved away from his home village towards the end of 2011. That was because of a discrepancy between where he said that he lived during that time in his statutory declaration supporting his claims (Peshawar) and his evidence at the interview (Islamabad). It therefore followed that the Tribunal did not accept ANH16’s claim that he had been warned by his employer against continuing to work as a driver because of risk to both ANH16 and the employer if people (including the Taliban) found out that the employer had a Shia working for him. The Tribunal did not accept that ANH16 had worked as a mini bus driver after 2007 when he sold the bus and resumed working on the family farm and it therefore did not accept that he would recommence driving as his occupation if he returned to Pakistan. However, the Tribunal found that if he does resume that occupation, based on country information, ANH16 does not face a real chance of serious harm.

7    At DR[50]-[66], the Tribunal considered independent country information provided by ANH16 through his representative and other country information including the following:

(1)    Department of Foreign Affairs and Trade (DFAT) 2015, DFAT Thematic Report Shias in Pakistan 14 April 2015 (2015 DFAT report);

(2)    The US Department of State, International Religious Freedom Report for 2013 (2013 US State Department report);

(3)    The US Department of State, Country Report on Human Right Practices for 2014 (2014 US State Department report);

(4)    UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, 14 May 2012 (UNHCR Eligibility Guidelines);

(5)    UNHCR, Post-return monitoring in areas of return Sholzan Tangi, Upper Kurram agency – June 2014¸ 30 June 2014;

(6)    May 2012, FATA Research Centre 2014, Security Report Second Quarter 2014;

(7)    FATA Research Centre 2015, Annual Security Report 2014;

(8)    FATA Research Centre 2015, Security Report Third Quarter 2015;

(9)    South Asia Terrorism Portal (SATP) ‘FATA Assessment 2015’

(10)    A May 2015 decision of the Refugee Review Tribunal (May 2015 RRT decision);

(11)    Reports concerning a bomb explosion on 13 December 2015 in a market place in Parachinar, in which those killed were Shia; and

(12)    Department of Foreign Affairs and Trade 2016, DFAT Thematic Report – Shias in Pakistan 14 January 2016 (2016 DFAT report).

8    The Tribunal said the following at DR[49]-[53] (as written, emphasis added):

49.    The Tribunal has considered whether the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, if he returns to his home area in [redacted] in Upper Kurram, FATA because of his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency, as outlined in the applicant's adviser's submission to the Tribunal.

50.    The Tribunal has had regard to the independent information provided by the applicant’s adviser in the submission to the Tribunal regarding the situation in Parachinar and Kurram Agency; including DFA T Thematic Report- Shias in Pakistan, US State Department International Religious Freedom Report for 2013, the US Department of State Country Report on Human Rights Practices for 2014 and UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan released on 14 May 2012. It was highlighted in the submission that the 2012 UNHCR report states that members of the Shia community, “particularly those in areas where Taliban-affiliated groups are active, such as in the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, be in need of international protection”. The adviser cited various sections of DFAT’s Thematic Report - Shias in Pakistan dated 14 April 2015 which refers to an improved situation in Kurram agency, but which also noted that there is a “high degree of generalised violence in FATA and a moderate risk of sectarian violence in some areas” and the situation in FATA remains volatile due to an ongoing counterinsurgency operations by the Pakistani security services. The adviser also referred to information in the DFAT report indicating that many internally displaced persons had returned to Kurram Agency, but that UNHCR reported in its Fact Sheet of May 2015 that no Internally Displaced Persons (IDP’s) had returned to the Kurram Agency in 2015.

51.    The adviser cited a decision of the RRT of May 2015 which set out continued attacks on Shias in Kurram Agency, notwithstanding the reported decline in the levels of violence since 2009 and an RRT decision of December 2014 which found that despite reports of stabilisation in the region, it found the situation in Parachinar remained volatile, particularly in relation to the situation on the Parachinar-Thall road that remained unstable.

52.    Reference was also made to the FATA Research Centre report on sectarian violence in FATA for the period July to September 2015 which it was noted provided a troubling update on the situation in Kurram Agency and also the South Asia Terrorism Portal (SATP) FATA 2015 Assessment which purportedly asserted that the threat from terrorist groups was ongoing and makes clear that sectarian attacks on Shia civilians continue to occur as revenge for counterinsurgency operations undertaken by the security forces.

53.    The Tribunal has carefully considered the applicant’s evidence, the submissions made by his adviser and the independent evidence, including the information outlined below, as put to the applicant in the hearing, in regard to the situation in the applicant's home area in Kurram Agency in determining whether he would face a real chance of persecution for a Convention reason, now or in the reasonably foreseeable future, if returned to Pakistan.

9    At DR[54]-[62], the Tribunal considered aspects of reports referred to at [7] above in relation to the security situation in the Kurram in the period from a truce in 2013 between the Shia Turi and mostly Sunni Bangash communities in the Kurram Agency, including articles provided by ANH16’s representative after the hearing.

10    At DR[54], the Tribunal referred to a report of the FATA Research Centre from July 2014 in relation to the period between April-June 2014, which reported that the security situation in the Kurram Agency had been stable in the reporting period and that compared to the previous two quarters there had been signs of improvement. The Tribunal quoted from the report that “Overall, six terrorism incidents were reported from the agency, costing thirteen lives. Most of these incidents involving bomb blasts were recorded from central and lower Kurram, whereas in the border areas of Shelwanzai Tangi, security forces also clashed with militants”.

11    At DR[55], the Tribunal noted that in its annual security report for 2014 (published in May 2015), the FATA Research Centre stated that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014. It went on to say that (as written):

In the first quarter Kurram Agency remained turbulent, facing 17 terrorism incidents in which 16 people died and 29 were injured. It was observed that the main trend of terrorism was bomb blasts which mostly happened on dust paths and fields and were sectarian oriented, with the victims being Sunni. It was stated that the Agency was less disturbed in the second quarter of the year with six incidents reported, four of which occurred in central and lower Kurram agency. The third quarter was again less turbulent with only one terrorism incident and in the fourth quarter Kurram Agency was described as remaining comparatively quiet among the seven tribal agencies in 2014, with a total of two incidents, one bomb blast and one target killing during the reporting period.

12    DR[56] then dealt with FATA Research Centre’s reports relating to 2015. In relation to the first quarter, the Tribunal noted that almost every agency in the tribal belt faced terrorist subversive activities. In relation to the Kurram Agency, it noted that the Lower Kurram Agency was an “epicentre of military activities”. In the second quarter, the Kurram Agency remained relatively stable. Only three security related incidents occurred, two were clashes between militants and security forces in which four militants in total died, two militants were injured and one security forces member was injured. The third was a bomb blast in which a security forces member was injured. Kurram Agency “witnessed a surge in militancy and counter military incidents” in the third quarter, with six incidents recorded (double the three of the previous quarter). In the last quarter, the areas that remained turbulent were in Central and Lower Kurram.

13    At DR[57], the Tribunal noted that, consistent with that information, the SATP (in its FATA Assessment for 2015) reported that civilian and security forces fatalities in the FATA recorded a seven year decline, while overall fatalities were higher due to the increase in terrorist fatalities under ongoing military operations in NWA and Khyber Agencies. It went on to say that (as written, emphasis added):

It reported that total fatalities through 2014 stood at 2,863, including 2,510 terrorists, 194 security forces personnel and 159 civilians; as compared to 1,716, including 1,199 terrorists, 319 civilians and 198 SF personnel in 2013. While SATP noted the number of major incidents (each involving three or more fatalities) in FATA increased by 48.87 per cent in 2014 compared to the previous year, this was said to be principally due to the counter-insurgency operations with the overwhelming number of fatalities occurring among groups registered as terrorists rather than civilians or security forces personnel. SATP reported that other parameters of violence such as suicide attacks, explosions and sectarian attacks remained low throughout 2014 with significantly less casualties from both suicide attacks and incidents of explosion. SATP recorded that sectarian violence in the region also registered a steep decline.

14    At DR[58], the Tribunal quoted the passages at [4.35]-[4.37] of the 2015 DFAT report which are set out in full at [41] below.

15    At DR[59], the Tribunal noted that, consistently with the 2015 DFAT report, the UNHCR (Protection cluster mission to Kurram from 22-26 April 2014) reported that IDPs (that is, internally displaced persons) commenced return to Upper and Lower Kurram. The UNHCR report noted that 23 main villages and 76 sub-villages were visited and “[i]t is evident that general peace in upper and lower Kurram is restored but still the sense of un-secureness prevails among the minority groups for return”.

16    At DR[60], the Tribunal quoted from the UNHCR’s report from June 2014 which was a “detailed review of those who had returned to the Upper Kurram area” as follows:

2) General situation and security in areas of return

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

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

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

17    At DR[61], the Tribunal said that it was mindful “that while there has been a reported decline in the levels of violence in the Kurram Agency in recent years, DFAT has advised that there continues to be sectarian and terrorist attacks and that the security situation remains volatile due to ongoing insurgency operations by Pakistani security services in FATA”. It also noted that “DFAT also assessed that there is a high level of generalised violence and a moderate risk of sectarian violence in some areas of FATA. The Tribunal notes according to FATA Research Centre's security report for the first quarter of 2015, violence as a consequence of persistent conflict was observed in all seven agencies of FATA including Kurram Agency and recorded militant activities in the area shows that the agency still faces the menace of terrorism”.

18    At DR[62], the Tribunal noted ANH16’s responses to the information it put to him at the hearing as outlined above, to the effect that the media reports on high profile killings but no-one reports when one, two or three people are killed, citing an unreported incident said to have occurred 2.5 km from his home village where people were killed. ANH16 also relied on an article from Dawn dated 18 November 2014 relating to an incident in the Nasti Kot area in Parachinar district when an improvised explosive device was planted on the roadside and detonated when a school van passed nearby, killing two and wounding five.

19    The Tribunal went on to conclude at DR[63]-[65] as follows (as written, emphasis added):

63.    While the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Upper Kurram Agency where the applicant’s village is located, as borne out by the information discussed above, the Tribunal finds on the range of sources consulted that the situation has changed significantly as compared to previous years and that there has been an improvement as a result of stabilisation in the region. The independent information provides that in Kurram Agency in particular, 2014 saw a steady improvement in the security situation from the beginning of the year, which ultimately led to the area being described as comparatively quite. The Tribunal notes that in DFAT's country report of April 2015, it was assessed that there is a moderate risk of sectarian violence in some areas of FATA. The Tribunal does not accept on the basis of all the information before it, including information from the FATA research centre and SATP, that Upper Kurram, including Parachinar, is one of the areas where such a risk exists. The Tribunal refers to the information from the FATA research centre cited above, which reports that most of the incidents in 2014 in Kurram Agency were in Central and Lower Kurram Agency. This is confirmed in the more recent DFAT report dated 15 January 2016 in which DFAT assesses there is a low level of sectarian violence overall in the FATA.

64.    The Tribunal has considered DFAT’s assessment in the April 2015 report that the situation in FATA generally remains volatile due to ongoing counterinsurgency operations by the Pakistani security services. The Tribunal refers to the information cited above from the South Asian Terrorism Portal which reported an increase in major incidents in FATA in 2014, compared to 2013, due to the counter-insurgency operations, which resulted in an overwhelming number of fatalities in those classified as terrorists, as opposed to civilians and security forces personnel. The Tribunal notes the reference made by the applicant’s adviser, in their post hearing submission, to the 2015 assessment made by SATP which makes clear that sectarian attacks on Shia civilians continue to occur as revenge for counterinsurgency operations undertaken by the security forces. While the Tribunal appreciates that there will continue to be instability as a result of the authorities continued struggle with terrorist, militant and sectarian groups, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm as a result of counterinsurgency operations in FATA more generally. The Tribunal refers to the information cited above from UNHCR, detailing a review of those who had returned to the region in Upper Kurram, in which it was reported that all key informants from five·villages expressed satisfaction with the security situation in the area and shared that they felt safe and secure. Those who were consulted also stated that no major security incidents had occurred since their return.

65.    Similarly, the Tribunal notes DFAT's assessment in the April 2015 report that there is a high degree of generalised violence in the FATA. However, given all the country information before it, as discussed above, the Tribunal does not accept that Upper Kurram is one [of] the areas where the this level of risk is present. This is also confirmed in the more recent DFAT report from January 2016 in which it was stated that the level of generalised violence varies throughout FATA, with this violence greatest in North Waziristan and Khyber Agencies because of ongoing military activities associated with Operation Zarb-e-Azb. DFAT assessed there is a low level of generalised violence in Kurram and Orakzai Agencies. While the Tribunal accepts that there is some level of risk to the applicant in the context of generalised violence, it finds on the basis of all the evidence before it that this risk is remote and does not accept that there is a real chance he would be targeted for harm based upon any Convention characteristics, including his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency.

20    After referring to information provided by ANH16’s adviser in further submissions dated 18 December 2015 regarding a bomb explosion a few days earlier at a market place in Parachinar in which those who were killed were Shia and reports from the Guardian and Dawn about extremist groups based in South Waziristan Agency, at DR[66], the Tribunal said (as written):

While the applicant's adviser asserted that this attack is a clear indication that sectarian violence is still a significant issue in Parachinar and that Shia civilians are still at very high risk, the Tribunal does not accept that this type of attack, which has been extremely rare in the area over the last few years, represents a certain change in the security situation that has prevailed for several years now, despite threats of similar attacks made by [Lashkar-e-Jhangiv Al Alami]. Although the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency where the applicant's village is located, as borne out by the information discussed above, including the recent attack in December 2015, the Tribunal finds on the range of sources consulted that the situation has changed significantly as compared to previous years and that there has been an improvement as a result of stabilisation in the region since the beginning of 2014. The Tribunal finds that there is nothing in the country information to suggest that this recent attack threatens the truce that has been in place since 2013. Nor does the Tribunal accept on the evidence before it that it can be extrapolated from this particular incident that the security situation in Parachinar or in Kurram Agency generally, has deteriorated such that there is a real chance that any Shia member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.

21    The Tribunal found as follows at DR[67]:

While the Tribunal accepts that there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured, the Tribunal finds that the overall country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards, and when this is considered together with the applicant's profile as an ordinary Bangash Shia and the fact that the applicant's family have remained in the area without experiencing any serious harm in recent years, the Tribunal finds the chance of the applicant facing serious harm from the Taliban generally or if he attends religious gatherings, or from other extremist groups or individuals, Sunnis or people generally for reasons of his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a longstanding violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency, is remote. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, for a Convention [reason].

22    After considering claims raised during the hearing concerning the threat posed by the distribution of letters by Daish in his village (which the Tribunal did not accept on the limited evidence provided), the claim to fear harm due to ANH16’s extended presence in Australia, a western country with a Christian heritage and as an asylum seeker at DR[68]-[70], the Tribunal found as follows at DR[71]-[72]:

71.    Based on the country information and the fact the applicant left the country legally on his own passport and no-one, apart from his family, knows where he has gone or that he has been in Australia, the Tribunal finds that the applicant does not face a real chance of persecution, now or in reasonably foreseeable future from the Taliban or anyone else on account of his extended presence in Australia (a western country with Christian heritage) as any asylum seeker or his membership of the particular social groups “returnees from the West” or “failed asylum seekers returning from a Western country”.

72.    Considering the applicant's claims both individually and cumulatively, as a Bangash Shia from Kurram Agency who has spent an extended period of time in Australia, a western country with a Christian heritage and has applied for asylum, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western county with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency if returned to Pakistan now or in the reasonably foreseeable future. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).

23    The Tribunal then turned to consider the complementary protection criterion under s 36(2)(aa), having regard to the definition of “significant harm” in s 36(2A) of the Migration Act, at DR[73]-[77] and concluded that it was not satisfied that ANH16 meets the criteria for protection under those provisions.

Application for extension of time

24    Rule 36.03 of the Federal Court Rules 2011 (Cth) requires a prospective appellant to file a notice of appeal within 21 days after the date of judgment or orders made. The FCCA Judge delivered judgment on 11 October 2017. Rule 36.03 required a notice of appeal to be filed by 1 November 2017. The application for extension of time before the Court was lodged in the Victorian Registry on 5 February 2018 with a supporting affidavit sworn by ANH16 on 30 January 2018.

Principles to be applied on an application for extension of time

25    The factors which should be taken into account when determining whether to grant an extension of time generally include the length of delay, the explanation for the delay, any prejudice to the opposing party (although the absence of such prejudice is not a sufficient reason to grant an extension) and the merits of the appeal: see SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 (Flick, Griffiths, Perry JJ) at [6], relying on Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348-349 (Wilcox J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (Cowdroy J). See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [36]-[39] (Griffth J, Edmonds J agreeing).

Grounds of application for extension of time

26    The grounds on which ANH16 relies in relation to the application for extension of time are set out in his supporting affidavit to which were annexed copies of lodgement records and emails dated between 1 November 2017 and 20 November 2017. Those documents disclose that:

(1)    A notice of appeal was lodged in the New South Wales Registry of the Federal Court at 4:16 pm on 1 November 2017, 14 minutes before that Registry closed and time for lodging a notice of appeal expired under r 36.03 of the Federal Court Rules.

(2)    A notification was sent by the New South Wales District Registry (NSWDR) at 11:55 am on 3 November 2017 to an email address which appears to be that of ANH16’s counsel on this application stating that the lodgement had been rejected because it did not comply with “Court Rules” and that, as an appeal from a Victorian matter, it should be filed with the Victorian Registry.

(3)    There were a series of email exchanges on 20 November 2017 as follows:

(a)    At 10.01 am, counsel for ANH16 sent an email to NSWDR, requesting NSWDR to put the notice of appeal “back into pending” so that it could be amended to change the registry, saying “Otherwise, the appellant is out of time and will have to put on application for an extension of time and an affidavit in support” and he “has limited funds and cannot afford a translator”.

(b)    By email in response at 12.15 pm, NSWDR advised that once a lodgement had been rejected it could not be revived.

(c)    By email sent to NSWDR at 12.20 pm, counsel said that “the appeal should never have been rejected straight out of hand” and “instead it should have been placed in pending with a request to amend the registry” and that the “appellant should have been given an opportunity to change the registry” and that ANH16 “is now out of time”. A request was made for the issue to be referred to a Registrar.

(d)    By email sent to counsel at 4.29 pm, NSWDR advised that the lodgement was “not accepted as it was filed with the incorrect registry. There was no fee was paid nor was it accompanied by an approved fee waiver”. In those circumstances, the Duty Registrar confirmed that “you will need to approach the Melbourne Registry in regards to filing”.

27    By an affidavit sworn on 22 August 2018 read in support of his application, ANH16 further explained as follows:

The reason why there was a further delay in filing my application between 20 November 2017 and 5 February 2018 is because I could not afford a translator and had to rely on my friend to translate for me. Unfortunately my friend was away during the first part of December. My lawyer was also on leave for the first two weeks of January 2018. I then made a number of mistakes in the application for an extension of time and my supporting affidavit and they had to be redone. This all caused delay in the filing of my application for an extension of time.

28    At the hearing, counsel for ANH16 acknowledged that the “situation was difficult” given that the circumstances give rise to the potential for counsel to become a witness in the application, and therefore the potential need for him to seek leave to withdraw.

Submissions

29    In his written submissions, counsel for ANH16 said that the extension of time should be granted because:

(1)    The extent of the delay, 3 months and 4 days, is in the low to mid-range of objective seriousness.

(2)    The delay is explained by the failure to lodge the notice of appeal correctly when using the Court’s “e-Lodgement” services in accordance with the Federal Court Rules.

(3)    Even where the Court finds that there is no adequate explanation for the delay, the Court may still find that the interests of administration of justice will nevertheless compel the granting of an extension of time, especially where there is clear jurisdictional error by the decision maker under review.

(4)    The impact on the applicant will be significant if an extension of time is not granted. He will be removed to Pakistan where he faces a real risk of persecution from the Taliban and other Islamic extremists.

(5)    The merits of the notice of appeal raise an arguable case. Exercise of the Court’s power to strike out should be used sparingly and only in the most hopeless of cases, relying on s 486E of the Migration Act and General Steel Industries Inc v Commissioner for Railways (NSW) 1964] HCA 69; 112 CLR 125 at 128 – 129 (Barwick CJ).

30    The Minister relied on Hunter Valley Developments Pty Ltd v Cohen. Counsel for the Minister acknowledged that the Minister would suffer no prejudice if leave were granted but submitted that the explanation for delay is inadequate and the grounds did not have sufficient merit to warrant consideration on appeal on the basis that the first ground proceedings on a misconception of what an “issue” is for the purposes of s 425(1) of the Migration Act, grounds two and three seek impermissible merit review undercover of grounds of irrationality and unreasonableness and an analytically flawed contention about the import of the “real chance” test as applied to the Convention criterion, and the fourth ground either lacks a factual basis or it is based on a legal argument that does not arise.

Consideration

31    The principles for determination of whether to grant an extension of time to file a notice of appeal are well-established and they are those set out under that heading above.

32    A period of three months and four days is a long period of delay in instigating an appeal process and in the ordinary course that period of delay may justify dismissing the application. Such a long period would normally require the exhibition of substantial merit to the grounds of appeal to justify an extension being granted.

33    In this case, the delay appears to have been caused by counsel for ANH16 first lodging the notice of appeal with the wrong registry of the Court and then taking some time to arrange for lodgement of an application to extend time to file a notice of appeal in the correct registry. ANH16 explained that delay as being occasioned by ANH16’s inability to afford a translator coupled with the absence during December 2017 of ANH16’s friend who translates for him, the holiday season and counsel’s absence during January. That is not an adequate explanation for the delay, but it is one difficult to lay at the feet of ANH16. It should not disentitle ANH16 to the benefit of an appeal in circumstances where:

(1)    The applicant’s counsel attempted to lodge a notice of appeal within the required time and it is not apparent that the grounds have changed since that attempt.

(2)    The parties agree that no new evidence or submissions would be required to determine the appeal.

(3)    The nature of the appeal, that is, its context of a protection visa application, albeit that the prospects of success of any of the grounds are weak.

(4)    Blame cannot fairly be attributed to the applicant himself for the failure to lodge the application on time in the correct registry of the Court.

34    Accordingly, the Court grants ANH16 leave to appeal on the grounds set out in the draft notice of appeal annexed to his supporting affidavit and waives any requirement to file a notice of appeal.

Grounds of appeal

35    The draft notice of appeal relied on four particularised grounds. The grounds reflect the grounds pleaded in the FCCA.

First ground

36    The first ground is the denial of procedural fairness ground as follows:

The primary judge erred at [18] of the judgment by finding that the decision by the Tribunal was not affected by jurisdictional error, given the Tribunal failed to give the applicant a meaningful opportunity to give evidence and present arguments relating to the 2016 DFAT report as required under section 425 of the Migration Act 1958 (Cth).

Particulars

a)    The Tribunal put to the applicant country information derived from a 2015 DFAT report.

b)    After the Tribunal hearing, in January 2016, a new DFAT report was released which differed from the 2015 DFAT report in material respects.

c)    The Tribunal did not convene an additional hearing to enable the applicant to give evidence and present arguments relating to the issues arising from the new DFAT report.

d)    The Tribunal relied on the 2016 DFAT report in affirming the decision.

  e)    At [18] of the judgment, the primary judge therefore erred by finding:

In these circumstances, I am not persuaded that this additional evidence had created an “issue” in the sense the word is used in s.425, as explained by Bromberg J in ABV16. Rather, this case concerns additional evidentiary material: see generally the reasoning given by Barnes FM in SZSHD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 and Bennett J in SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486. The evidentiary material did not need to be provided to the applicant as a result of s.424A.

37    Counsel for ANH16 submitted, and the Minister does not disagree, that this ground of appeal turns on the meaning of “issue” in s 425(1) of the Migration Act. Section 425(1) provides as follows:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

38    For the reasons that follow the first ground is not made out.

39    The basis of ANH16’s complaint under this ground is that the Tribunal relied on the 2016 DFAT report which was adverse to ANH16’s claims and issued after the Tribunal’s oral hearing without giving ANH16 a further hearing or a copy of the 2016 DFAT report on which to comment. Counsel submitted that the 2016 DFAT report formed the basis of the Tribunal’s decision at DR[63] in breach of ss 424, 424A and 425 of the Migration Act. Although, in terms, the first ground refers only to DR[63], counsel for ANH16 also relied on DR[65].

40    ANH16’s submission before the FCCA Judge and in this Court is that, while s 424A(3) of the Migration Act provides (in effect) that country information need not be provided to an applicant, s 425 prevails over the operation of s 424A, as found in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [41] and [58] (Bromberg J) and that obligations under s 425 are not one time only, relying on SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; 172 FCR 1 at [10], [95] and [103]. These submissions, at the level of principle, appear to have been accepted by the FCCA Judge at J[11] and were not disputed by the Minister.

41    The FCCA Judge set out (at J[12]) the “relevant passages” of the 2015 DFAT report and the 2016 DFAT report referred to in DR[63] and DR[65] as follows:

(DFAT Thematic Report – Shias in Pakistan – 14 April 2015)

4.30    The majority of the Shia population in the FATA is concentrated in the Kurram and Orakzai Agencies. The population of Kurram Agency is estimated to be around 935,000, of which Shias are estimated to make up approximately 40 per cent. Prior to the influx of refugees from Afghanistan in the 1980s, Shias formed a majority in Kurram Agency.

4.31    The majority of Shias in FATA and Kurram Agency are from the Turi tribe, the only exclusively Pashtun Shia tribe which is estimated to number around 500,000, dispersed throughout Pakistan. Turi Shias are primarily located in upper Kurram, a strategic strip of land in the north of the Agency bordering Afghanistan. Sunnis occupy areas of central and lower Kurram. A main road links Parachinar in upper Kurram to Thal in lower Kurram.

4.32    In addition to Turi Shias, a Shia-minority community of Bangash live in the FATA, including in Kohat, Hangy and Orakzai and the settled areas of Khyber Pakhtunkhwa. DFAT has no information on the size of this community but credible sources have told DFAT that Shia Bangash are less visible and their Shia identities are difficult to distinguish from Sunni Bangash.

4.33    The current conflict in Kurram can be traced to the 1980s when the Turis refused to provide support to the Mujahideen and later the al-Qaeda and Taliban forces fleeing Afghanistan. There has been a history of violence between Shias and Sunnis in Kurram particularly since 2007. On the Sunni side, the TTP and the Haqqani network have been active in Kurram Agency as have Shia groups Hizballah, Mehdi Milita and Hydri Taliban.

4.34    Ongoing counterinsurgency operations by the Pakistani security services against the TTP and other militants in the FATA have resulted in a high level of generalised violence and widespread displacement of communities from the FATA. Many Shias sought support from relatives in neighbouring areas of Hangu, Kohat and Peshawar, and in Islamabad and its smaller satellite towns.

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

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

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

(DFAT Thematic Report – Shias in Pakistan – 15 January 2016)

4.36    DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence caries [scil varies] throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb. DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.

42    The FCCA Judge found (at J[13]) that it was apparent from DR[50] and DR[51] (see [8] above) that the level of violence of a sectarian or general nature was an issue at the Tribunal hearing. DR[50] and [51] referred to submissions made by ANH16’s advisor by reference to the 2013 and 2014 US State Department reports, UNHCR’s Eligibility Guidelines, the 2015 DFAT report and the May 2015 RRT decision. The Court notes that, at DR[52], the Tribunal also referred to the FATA Research Centre’s Security Report Third Quarter for the period July to September 2015 and the SATP’s FATA 2015 Assessment.

43    His Honour then turned to consider the decision in ABV16 at J[14] and [15] and contrasted it with the circumstances of this case at J[16] and [17] as follows:

14.    This ground turns upon the meaning of “issue” under s.425 of the Act. Counsel for the applicant relied upon the decision of Bromberg J, ABV16, where his Honour analysed the operation of the section in the context of a case concerning the Chinese government’s one-child policy, where the hearing had been conducted on one basis and the evidence altered thereafter. His Honour said:

31. ... Having conducted a hearing on the basis that the Chinese government had a policy by which there were barriers to the registration of ‘black children’, and having on that basis (and fairly at the time of the hearing) invited no evidence or submissions on the status of that policy or its application to the appellant, the Tribunal came into knowledge that the policy was no longer in force. It was on that basis that the Tribunal found against the appellant. In the absence of countervailing circumstances, the Tribunal was obliged by s 425(1) to give notice to the appellant that the status of the policy was now in issue, and to invite the appellant to present evidence and make submissions at a hearing. Having not done so rendered hollow, and not meaningful, whatever opportunity to respond that had been provided by the Tribunal through the holding of the first hearing. The denial resulted in a practical injustice to the appellant.

15.    It is clear from this paragraph of the reasons that the hearing in ABV16 proceeded on the assumption that the one-child policy operated and there were no submissions on the status of that policy, however, whether or not the policy was actually being enforced by the Chinese government became an issue after the hearing and therefore fell within the ambit of the operation of s.425.

16.    In this case, the DFAT evidence provided after the hearing was not in the applicant’s favour. However, at the time of the hearing, it is clear that the question of whether or not there was a risk of generalised or sectarian violence and the extent of that risk was clearly an issue, as can be seen from the Tribunal’s statement at paras.50 and 51 of their decisions (quoted above), and the further submissions made by the applicant’s migration agent after the hearing as to further events that had taken place in order to demonstrate the extent of sectarian violence.

17.    In these circumstances, the issue was a live issue before the Tribunal and all that changed is that a further piece of evidence (the 2016 DFAT reports) became available. On ordinary principles of procedural fairness (if there were no statutory modifications in the Act) this material would have to have been put to the applicant. However, s.425 is a code for the extent to which procedural fairness must be provided. In this case the issue (although not the 2016 evidence) had been squarely raised with the applicant and was a live issue prior to the additional evidence being provided.

44    Counsel for ANH16 submitted that the FCCA Judge erred in his finding at J[17] that the issue (which the Court takes to be a reference to the question identified at J[16]) was a live issue before the additional evidence (the 2016 DFAT report) was obtained by the Tribunal.

45    In his oral submissions to this Court, counsel for ANH16 noted that, at DR[50], the Tribunal cited the 2015 DFAT report as referring to an improved situation in Kurram Agency but also noted that the report also said that there is “a high degree of generalised violence in FATA and a moderate risk of sectarian violence in some areas”.

46    Counsel submitted that, at DR[63] (see [19] above), the Tribunal referred to this passage from the 2015 DFAT report but did not include the words “a high degree of generalised violence in the FATA”. In contrast, the 2016 DFAT report contained the words emphasised in DR[63] that “DFAT assesses there is a low level of sectarian violence overall in the FATA”. Counsel submitted that, accordingly, there was material “shifting ground” between the earlier reports and the 2016 DFAT report and ANH16 should have been given an opportunity to comment. In ABV16, there was a one child policy and there was a change in that policy; in this case there was country information and a change in that country information. Counsel disputed the Minister’s position that the emphasised words in DR[63] from the 2016 DFAT report confirmed a trend which the Tribunal had already discerned from the 2015 DFAT report and other materials. Counsel for ANH16 submitted that the issue of “generalised violence”, the 2016 DFAT report said that “the level of generalised violence varies throughout the FATA” so it could not be confirmatory.

47    Counsel for ANH16 submitted that there was a material difference between the 2015 and 2016 DFAT reports, the Tribunal was obliged to act fairly under s 420 in the substantive dictates of justice, and it did not do that because it failed to give ANH16 an opportunity to address the Tribunal on the treatment of violence in the two reports. Section 420 of the Migration Act provides as follows:

420 Tribunal’s way of operating

The Tribunal, in reviewing a Part 7-reviewable decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    must act according to substantial justice and the merits of the case.

48    Counsel for ANH16 submitted that the FCCA Judge therefore erred at J[18] by finding that the Tribunal was not required to give ANH16 an opportunity to comment on the 2016 DFAT report.

49    Counsel submitted that, as the Tribunal got the 2016 DFAT report before it made its decision, s 424 of the Migration Act applies. Section 424 relevantly provides as follows:

424 Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

  (3)    …

50    Counsel submitted that under s 424(1), the Tribunal had to have regard to the 2016 DFAT report in making the decision under review. Under s 424(2), the Tribunal “may” invite a person to give information. Counsel accepted that “may” confers a discretion on the Tribunal but he submitted that, in the circumstances, that discretion should have been exercised in favour of ANH16 being given an opportunity to reply to it. Counsel submitted that s 424 should be read in the context of ss 420 and 425 and that, by enacting s 420, Parliament evidenced an intention that the Tribunal act in accordance with principles of substantive justice which required the Tribunal to give ANH16 an opportunity to comment on the new material.

51    In oral submissions, the Minister noted that the first ground, as pleaded does not raise any issue in relation to s 424 of the Migration Act, it relies only on s 425. The Court notes that the written submissions prepared by ANH16’s counsel did raise ss 424 and 424A at [8], however there was no indication that Counsel intended to rely on s 420 or s 424 in the way that he did in his oral submissions.

52    The Minister noted that, in ANH16’s written submissions at [12], ANH16 acknowledges that s 424A(3)(a) of the Migration Act does not require the Tribunal to provide country information to an applicant. Under the express terms of s 425 of the Migration Act, the Tribunal’s obligation to invite an applicant to appear before it to get it evidence and present arguments relates to “issues arising in relation to the decision under review”.

53    The Minister relied on the High Court’s reasons in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [35] and the analysis of Barnes FM (as her Honour then was) in SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 at [36]-[39] in relation to the proper approach to determining what an “issue” is for the purposes of s 425. Judge Barnes (as her Honour now is) said:

36.    The “issues” referred to in s.425 cannot necessarily be identified simply by describing them as whether the applicant was entitled to a protection visa. As the High Court stated in SZBEL at [34]:

The statutory language ‘arising in relation to the decision under review’ is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s.415) all powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

37.    The Tribunal’s task is to review the delegate’s decision. It has to identify the issues that arose in relation to that decision. However, if a Tribunal takes “no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review” (SZBEL at [35]).

38.    I have had regard to the fact that what is in issue is the scope of s.425, not common law procedural fairness. Hence some caution must be exercised in the application of statements made in that context to s.425. What the High Court stated at [38] reflected approval of the statement by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591 that the requirement of procedural fairness in the exercise of a statutory power includes the fact that “The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material”. In that context the High Court expressed the view (at [38]) that what was “obviously…open” in the Tribunal’s review “can be identified only by having regard to ‘the issues arising in relation to the decision under review’ ”. It was those issues which it was said would determine whether rejection of critical aspects of an applicant’s account of events (as was said to have occurred in SZBEL) was “obviously … open on the known material”. In contrast, in the context of s.425 the focus is on whether the Tribunal has met its obligation to invite the applicant to appear before it to give evidence and present arguments “relating to the issues arising in relation to the decision under review”

39.    An exercise in characterisation must be undertaken to identify what are the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based. It is those issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s.425.

54    The Minister submitted that the “exercise of characterisation” described by Judge Barnes necessarily involves the disaggregation of factual matters going to the issues and the issues themselves, relying on her Honour’s discussion of SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 (Bennett J). In SZJUB at [25], Bennett J analysed the issue before her Honour this way:

The question is whether the fact that [the applicant] had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it.

55    The Minister submitted that: The issue in play in this case was the security situation in ANH16’s home region in the Upper Kurram Agency of the FATA which the Tribunal had to consider so as to determine whether ANH16 would face a real chance of persecution for a Convention reason, currently or in the reasonably foreseeable future, if he returned to Pakistan. Broadly speaking, the effect of the information from objective sources referred to at DR[54]-[65], to which the Tribunal had regard, was that the security situation in the area had improved significantly in recent years as a result of stabilisation in the region so that there was no real chance of harm from generalised or sectarian violence. That is the effect of DR[63] read as a whole and ANH16’s argument cannot succeed because:

(1)    The exercise of characterisation explained in SZHZD has the clear result that the Tribunal’s reference to the 2016 DFAT report is by way of confirmation or fortification of conclusions of fact already reached so that it may not be altogether accurate to conclude that the Tribunal “relied” on it.

(2)    The bolded portion of DR[63] manifestly does not raise an “issue” for the purpose of s 425(1). At best, it goes to a factual matter underlying an issue so that to accept the analysis for which ANH16 contends would be to undermine the policy evident in s 424A(3)(a) of the Migration Act.

(3)    Properly analysed, the “new” information on which the Tribunal sought to rely in ABV16 reframed the “issue” it had to deal with. The dispositive issue shifted from whether the applicant would suffer the harm specified by reason of his status as a “black” child to whether the policy of the People’s Republic of China contemplated harm at all following from a child’s status as a “black” child. That is not the case here: the question of whether there was a risk of generalised or sectarian violence and the extent of that risk was clearly the “issue”.

(4)    The 2016 DFAT report was adjectival and to the same effect as the information already discussed with him so that it did not raise a new “issue”; it was unnecessary for the Tribunal to hold a new hearing to discharge the Tribunal’s s 425 obligation.

Consideration

56    The Court does not perceive error by the FCCA Judge in the manner in which his Honour addressed the issue raised by this ground and the first ground of judicial review in the FCCA at J[10]-[20].

57    The Tribunal set out ANH16’s Convention based claims at DR[49] (set out at [8] above). The Tribunal then went on to consider the country information submitted by ANH16’s representative which addressed what the FCCA Judge correctly identified (at J[16]-[17]) as the “live issue” before the Tribunal, being “the question of whether or not there was a risk of generalised or sectarian violence and the extent of that risk”. Of course, this related to the area to which ANH16 would go if he returned to Pakistan, being Upper Kurram.

58    By reference to the country information before the Tribunal (the materials referred to at [7] above, other than the 2016 DFAT report), the Tribunal considered whether ANH16 would be exposed to both sectarian and generalised violence in Upper Kurram. On a fair reading of the material overall, the Tribunal discerned that the Kurram Agency in general began to stabilise after 2013, sectarian violence still occurred, but the incidents were primarily in Central or Lower Kurram, not Upper Kurram. At DR[63], the Tribunal accepted that there continues to be ongoing sectarian violence in the FATA including Upper Kurram, but found “on the range of sources consulted” that the situation has changed significantly as compared to previous years and there has been an improvement as a result of stabilisation in the region. The Tribunal specifically relied on the 2015 DFAT report for its finding that there was a “moderate risk of sectarian violence in some areas” of the FATA but it did not accept, based on information from the FATA Research Centre and SATP that Upper Kurram (including Parachinar) is one of those areas, noting that the FATA Research Centre reports that most of the incidents in 2014 in the Kurram Agency were in Central and Lower Kurram. The Tribunal looks to the 2016 DFAT report for confirmation of that trend with respect to sectarian violence in Upper Kurram and finds it: the DFAT says that there is a “low level of sectarian violence overall in the FATA”. The Tribunal is not dealing with generalised violence at DR[63] so the submissions based on the failure to mention “generalised violence” at this point is not indicative of error. That topic is dealt with at DR[65].

59    At DR[64], the Tribunal turns to DFAT’s assessment in the 2015 DFAT report that the situation in FATA generally remains volatile due to ongoing insurgency operations. It goes on to note the submission made by ANH16’s representative that the SATP 2015 assessment makes it clear that sectarian attacks on Shia civilians continue to occur as revenge for counterinsurgency operations. However the Tribunal relies on information from the UNHCR detailing a review of people who had returned to the Upper Kurram region in 2014 who had expressed satisfaction with the security situation in that area and who said that they had not experienced major security incidents since their return to find that ANH16 did not face a real chance of serious harm as a result of counterinsurgency operations in FATA more generally.

60    The Tribunal then turned to deal with generalised violence. At DR[65], the Tribunal specifically addressed the fact that 2015 DFAT report found that there was a high degree of generalised violence in the FATA, however, the materials quoted in the preceding paragraphs support the conclusion that Upper Kurram was not one of those areas. By reference to the 2016 DFAT report, the Tribunal confirmed that view, finding that the greatest violence was in the Waziristan and Khyber Agencies, with a low level of risk in Kurram Agency. While this does indicate change in relation to Kurram Agency as a whole, it does not indicate change from the trend perceived by the Tribunal from information relating to 2014 and 2015 in relation to Upper Kurram Agency.

61    Having regard to the authorities on which the Minister relied and ABV16, the 2016 DFAT report did not raise a new “issue” so as to engage the Minister’s obligations under s 425. Addressed to the “issue” – the risk of sectarian or generalised violence [in Upper Kurram] upon ANH16’s return to Pakistan – the 2016 DFAT report confirmed a trend perceived by the Tribunal from the other materials before it which had been addressed by ANH16’s representative. The 2016 DFAT report is properly to be described as going to a factual matter underlying an “issue”, rather than raising an issue of the kind addressed in ABV16.

62    It is not evident from the FCCA Judge’s reasons that ANH16 raised the argument based on s 420(b) before the primary judge. It appears from J[19], that the counsel who represented ANH16 in the FCCA relied instead on s 422B(3) in saying that s 425 must be interpreted in a way which is “fair and just” relying on BZAID v Minister for Immigration and Border Protection [2016] FCA 508; 242 FCR 310 at [49] (Edelman J).

63    Section 422B provides as follows:

422B Exhaustive statement of natural justice hearing rule

(1)    This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3)    In applying this Division, the Tribunal must act in a way that is fair and just.

64    The FCCA Judge did not err in concluding (at J[17]) that s 425 was a “code”. Division 4 of Pt 7 of the Migration Act is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with – and the matter s 425 deals with is “issues arising in relation to the decision under review”. Having regard to s 424A(3)(a) and the finding by the FCCA Judge (with which this Court agrees) that the 2016 DFAT report did not raise a new “issue” as opposed to factual information going to an issue on which ANH16 had already had an opportunity to comment, the Tribunal was not obliged to give ANH16 an opportunity to comment on the 2016 DFAT report before making a decision in this case, whatever its obligations under general law might have been. The facts of this case are not a good analogy with the facts in ABV16 and the reasoning employed by Bromberg J in that case is not available in this case. As the Court has also accepted that the 2016 DFAT report was confirmatory of a trend observed by the Tribunal in the country information relating to the period 2014-2016, it is difficult to see that the Tribunal behaved in way that was not “fair and just” by failing to give ANH16 that opportunity.

65    ANH16’s argument was not improved by his counsel’s reliance on s 420 in oral argument. To interpret s 420 in the way proposed by counsel for ANH16 deprives s 422B of the effect clearly intended by Parliament and the Court does not accept counsel’s submission to the contrary effect. Counsel sought no leave to rely on s 420 and it appears that leave was required as the FCCA Judge’s reasons do not indicate that it was relied on below. In the Court’s view, that argument lacks sufficient merit to warrant its consideration on appeal as a new ground.

66    Insofar as s 424(2) confers a discretion on the Tribunal to invite a person to give information, neither the language used in the first ground nor the written submissions prepared by ANH16’s counsel raised the issue of where the Tribunal failed to exercise a discretion conferred on it by s 424(2) to get information in relation to the first ground. The argument may properly be described as a new ground going beyond the matters raised in the FCCA. Counsel did not seek leave to raise that ground and leave should be refused to allow that argument to be raised for the first time on appeal.

Second ground

67    The second ground is the unreasonableness/no evidence ground as follows:

The primary judge erred at [26]-[27] of the judgment by finding that there was a sufficient logical or evidentiary basis for the Tribunal to find at [63] of the decision record, that the applicant did not face a real risk of harm from sectarian harm, in light of the relevant passages in the DFAT reports from 2015 (and the FATA material referred to at [56] of the decision record.

Particulars

a)    The Tribunal purported to rely on an April 2015 DFAT report for the proposition that there was “a moderate risk of sectarian violence in some areas of FATA” but omitted to refer to the full sentence, namely, “Overall, DFAT assessed that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas.”

b)    The primary judge therefore erred at [26] of the judgment by finding:

The relevant extracts from the 2015 and 2016 DFAT Thematic Reports are set out above. Given that there was an evidentiary basis for the finding that logically supported it, it is not a finding that was illogical or irrational in the sense discussed by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (especially at [135]).

c)    Further, the primary judge erred at [27] of the judgment by finding:

When looking at the material as a whole I accept the submissions from the Minister in that regard. It was open to the Tribunal to reach the conclusions that it did on the Tribunal’s assessment of material as a whole. I am not persuaded that when taken as a whole it was unreasonable in the Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] I KB 223) sense nor in any of the other sense identified in SZMDS at [136].

68    At J[21]-[24], the FCCA Judge summarised ANH16’s submissions that the Tribunal’s decision was so unreasonable or illogical that no reasonable decision-maker could reach it with reference to:

(1)    The Tribunal’s reasoning at DR[56];

(2)    UNHCRs reports referred to at DR[60] and [61]; and

(3)    Passages from the SATP assessment and FATA report set out in ANH16’s submissions to the Tribunal which appeared in the FCCA Court Book at 148, which his Honour noted did not refer to incidents in Upper Kurram but did refer to incidents either in the Lower or Central Kurram Agencies or incidents which were not in the Kurram Agency at all.

69    The FCCA Judge summarised the Minister’s submissions at J[25] as follows:

25.    Counsel for the Minister summarises the material that forms the evidentiary basis for this finding in their submissions:

20.    Secondly, it is said (Ground 2, particular (b); applicant’s submissions [28]-[31]) that there was ‘no material’ before the Tribunal ‘to support the conclusion that Upper Kurram was not an area where the risk of violence described in the 2015 DFAT report existed.’ But there was. The tenor of the objective sources to which the Tribunal referred at [54]-[61] of its decision is that Kurram Agency’s security situation in general is improving ([54] CB 202; [57] CB 203; [58] CB 203; [59] CB 203-4), so that it is said (in various sources) to be ‘quiet’ and ‘relatively stable’. The objective sources also show that the preponderance of the instability/destabilising incidents referred to occurred in Lower Kurram Agency ([56] CB 202; [59] CB 203-4). And in any event, the UNHCR report of June 2014 quoted at [60] of the DR (‘all key informants in the five villages [of Upper Kurram] showed satisfaction over the security situation in the area and they shared that they feel safe and secure currently in area of return’) cuts squarely against the applicant’s complaint that there was no basis for the Tribunal’s conclusion. Again, this strand of the complaint is really as to the substantive conclusion the Tribunal reached, not the legality of the process by which it reached that conclusion. On no view does this point meet Crennan and Bell JJ’s description of irrationality either.

70    In ANH16’s written submissions to this Court, counsel submitted that, at DR[63] (see [19] above), the Tribunal purportedly considered country information regarding sectarian violence in FATA, including Upper Kurram Agency. The Tribunal noted the 2015 DFAT report where DFAT assessed that there was a moderate risk of sectarian violence in some areas of the FATA, but the Tribunal did not accept, on the basis of all of the information before it including from the FATA Research Centre and SATP, that Upper Kurram, including Parachinar, is one of the areas where such risk exists. Counsel submitted that it was not reasonably open to the Tribunal to find that there was a low or remote risk of harm if ANH16 returned to his home village in Upper Kurram given that the 2015 DFAT report found that there was a “high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas”.

71    Counsel submitted that, contrary to the FCCA Judge’s findings at J[26]-[27], in making its finding at DR[63], the Tribunal either misapplied the relevant principles (relying on Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179, failed to give proper, genuine and realistic consideration to the merit of ANH16’s claims (relying on Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; 14 ALD 291 (Gummow J)) or there was an insufficient logical or evidentiary basis for the Tribunal’s finding. For the last proposition (insufficient logical or evidentiary basis), ANH16 relied on the principles concerning legal unreasonableness summarised in Minister for Immigration & Border Protection v SZVFW [2017] FCAFC 33; 248 FCR 1 at [38], the discussion of when a decision may be found to be illogical or irrational in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] (Crennan and Bell JJ) and jurisdictional error arising from ignoring relevant material in a way that affects the exercise of power discussed in Minister for Immigration and Citizenship v SZRKT [2013] HCA 16; 212 FCR 99 at [96] (Robertson J).

72    In his oral submissions, counsel for ANH16 submitted that:

(1)    The information from the SAPT report referred to at DR[57] (see [13] above), including the total fatalities and the 48.87% increase in major incidents in 2014, indicates that, despite DFAT’s assessment referred to at DR[58], the 2013 truce could not be regarded as still being in place. There was a complete breakdown in the Tribunal’s logic based on country information. Despite the improvement reported, the material at DR[57] indicates that there was still an unacceptably high risk of harm to ANH16. The Tribunal’s reasoning contained a gloss, derived from the apparent chronological ordering of its recounting of the independent reports on which it relied. The Tribunal misplaced the UNHCR report (dealing with the return of people to Upper Kurram during 2014) chronologically at DR[60] as though it is evidence of a maintenance of peace, when there is a report of a spike in violence in the FATA Research Centre covering the third quarter of 2015 placed earlier in the reasons at DR[56].

(2)    Having regard to the summary of the materials before the Tribunal at DR[61], it was not open to the Tribunal to make the findings it did at DR[63] and [65].

Consideration

73    In the Court’s view, this ground must fail. In stating its reasons, the Court draws on relevant submissions made by the Minister, including submissions which were the same as those summarised by the FCCA Judge at J[25].

74    As with the first ground, ANH16’s complaint is that, at DR[63], the Tribunal dealt only with the risk of sectarian violence when [4.37] of the 2015 DFAT report also referred to a “high degree of generalised violence in the FATA”. As pointed out by the Minister, the risk of sectarian violence was an integer of ANH16’s Convention based claims and it was, as required, dealt with specifically at DR[63]. In relation to that risk, the Tribunal reasoned that while sectarian violence existed in Upper Kurram, all of the information before it indicated that the situation had changed significantly since earlier years and none of the information before it indicated that Upper Kurram was an area to which the “moderate risk” of sectarian violence in the FATA applied. Most of the incidents the subject of reports considered by the Tribunal referred to Central and Lower Kurram. The 2016 DFAT report indicated that there is a “low level of sectarian violence overall in the FATA”. The Court perceives no error in the FCCA Judge’s findings that there was an evidentiary basis for the Tribunal’s findings in this regard and those findings were not irrational, illogical or legally unreasonable having regard to the authorities cited by counsel for ANH16.

75    For completeness, while it is true that the material quoted at DR[59] and [60] from UNHCR reports dated 22-26 April 2014 and June 2014 (dealing with the security situation in Upper Kurram) predates the security report from June-September 2015 issued by the FATA Research Centre referred to at DR[56] (which indicates that there was a “surge in militancy and counter militancy incidents” in the Kurram Agency) there is no logical inconsistency between those paragraphs. DR[59] and [60] deal specifically with Upper Kurram and the tenor of DR[56] is that the surge related to counter insurgency operations in the Central and Lower Kurram. Moreover, while counsel for ANH16 notes that the numbers of people killed quoted at DR[57] are high, they relate to counter-insurgency operations, not sectarian violence, the material does not relate to the Kurram Agency, and the SATP report for 2015 on which the information is based records both a seven year decline in such fatalities in the NWA and Khyber Agency and that sectarian violence in the region had also registered a steep decline.

76    Further, at DR[64], the Tribunal addressed the issue of volatility due to counterinsurgency operations in the FATA and specifically addressed a submission made by ANH16’s representative that attacks on Shias may occur as revenge for counterinsurgency operations undertaken by security forces. The Tribunal relied on the UNHCR’s findings concerning the security situation in Upper Kurram in addressing that issue, as it was entitled to do having regard to the information before it that the surge in counterinsurgency activity in one quarter of 2015 was in Central and Lower Kurram. The Court notes the submission made by counsel for ANH16 that Upper, Central and Lower Kurram are geographically close, and suggested that the distance was similar to that between Sydney city and Bondi or Melbourne city and St Kilda. However, counsel did not adduce evidence to support that assertion and the distinction between Upper, Central and Lower Kurram appears to have been relevant in DFAT’s reporting and in the reporting of other independent sources. In the Court’s view counsel’s submission was an invitation to engage in impermissible merit review of the Tribunal’s findings.

77    Further, at DR[65], the Tribunal dealt with the fact that the 2015 DFAT report said that there was a “high degree of generalised violence in the FATA”, finding that the Upper Kurram was not one of those areas by reference to all of the material before the Tribunal. The Tribunal found that this was “confirmed” by the 2016 DFAT report which said that generalised violence “varies” throughout the FATA and DFAT assessed that there is a low level of generalised violence in the Kurram and Orakzai Agencies. Contrary to counsel’s oral submissions, the Court accepts that the 2016 DFAT report was confirmatory in this respect, since it indicates that generalised violence was not experienced to the same extent throughout the FATA and it was low level in the Kurram Agency. The Tribunal therefore cannot to be said to have failed to engage with this element of DFAT’s finding at [4.37] of the 2015 DFAT report by taking into account other country information and later country information in the 2016 DFAT report.

78    While counsel for ANH16 cited a number of authorities on which he sought to rely (some of which did not appear to be referred to in argument before the FCCA Judge), the Court accepts the Minister’s submission that the Tribunal did not misapply relevant principles or fail to give proper or realist consideration to the materials before it in this regard.

Third ground

79    The third ground is the misapplication of law in relation to the refugee criterion ground as follows:

The primary judge erred at [28] of the judgment by finding that the Tribunal did not misapply the real chance test at [65] and [66] of the decision record, when assessing whether the applicant faced a real chance of serious harm under the refugee criterion.

Particulars

a)    Having found that there was ongoing sectarian violence and generalised violence in the FATA and having accepted DFAT assessments of a risk of violence in those areas, the Tribunal’s finding that the applicant's chance of facing serious harm from the Taliban was remote constituted a misunderstanding of the test for a real chance of serious harm.

b)    The primary judge therefore erred at [28] of the judgment by finding:

The applicant relies upon what was said in paras.65 and 66 of the Tribunal decision (set out above) to argue that the Tribunal failed to apply the real chance test correctly. This is a difficult argument to make in light of the words used in para.66, which follow the High Court judgment in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. I also note that at the commencement of the decision the Tribunal identified the correct test (see para.13). Ultimately I am not persuaded that the Tribunal has fallen into error in this regard.

80    The argument prosecuted by counsel for ANH16 in his written submissions at [25] was that, having found that there was ongoing sectarian and generalised violence in the FATA and having accepted DFAT assessments of a risk of violence in those areas, the Tribunal’s finding that ANH16’s chance of facing serious harm from the Taliban was remote constituted a misunderstanding of the test for a real chance of serious harm. Counsel’s oral submissions were to similar effect.

Consideration

81    At DR[13], the Tribunal said:

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of persecution occurring is well below 50 per cent.

82    This explanation reflects the High Court’s reasoning in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389 (Mason CJ), 406-407 (Toohey J), 396-398 (Dawson J) and 428-429 (McHugh J). As pointed out by the Minister, the Tribunal also correctly referred to this test at DR[22], [49], [53], [64]-[67] and [72].

83    The Court accepts the Minister’s submission that where, as here, the decision record demonstrates that the Tribunal was aware of the correct test to be applied, the Court should not readily infer that the Tribunal did not apply that test unless it emerges clearly from the decision record that the Tribunal did not do so: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and Inglewood Olive Process Ltd v Chief Executive Officer of Customs (2005) FCAFC 101 at [26].

84    Counsel for ANH16’s argument again relied on the 2015 DFAT report’s finding at [4.37] that there was a high risk of generalised violence in the FATA and a moderate risk of sectarian violence for his contention that the Tribunal’s findings were not open to it. This is in the face of country information specific to Upper Kurram in the UNHCR’s reports referred to at DR[59] and [60] and the 2016 DFAT report at [4.36] that there was a low level of sectarian violence overall in the FATA and that the level of generalised violence varies throughout the FATA and “confirmation” in that DFAT report that there is low level generalised violence in Kurram Agency (see DR [65]). Counsel’s process of reasoning should be rejected.

85    The Tribunal, at DR[65] and [66] (set out at [19] and [20] above) accepted that there was “some level of risk to the applicant in the context of generalised violence” and that a specific event in which Shias had been killed had occurred on 13 December 2015 in the region to which ANH16 would be returned. The Court accepts the Minister’s submission that, at DR[65], the Tribunal was entitled to reason from the country information as it did, that is, though real, the risk of generalised violence to which ANH16 was exposed in Upper Kurram was remote. In this regard, the Tribunal made specific reference to the fact that Parachinar is a region with a long-standing violent conflict with the Taliban. At DR[67] (see [21] above), which was not addressed by counsel in his submissions, the Tribunal sets out its reason for finding that ANH16’s risk of facing serious harm from the Taliban generally or if he attends religious gatherings or from other extremist groups or individuals, Sunni Muslims or people generally on the bases set out in his Convention based claims was remote.

86    The Court also accepts the Minister’s submission that, as set out in DR[66], the Tribunal was entitled to evaluate the risk posed by the incident which occurred on 13 December 2015 in the context that such events were extremely rare in Parachinar, that it did not represent a change in the security situation generally and that, in itself, it did not threaten the truce that had been in place since 2013. The Court does not accept submissions made by Counsel for ANH16 that the Tribunal was not entitled to make the assessment that it did that the truce was holding, having regard to the country information on which it relied and the trend towards stabilisation which the country information recorded.

87    The Court does not accept that the reasons of the FCCA Judge at J[28] is attended by appellable error or the Tribunal’s reasoning at DR[65] and [66] reveals jurisdictional error.

Fourth ground

88    The fourth ground is the misapplication of law in relation to the refugee criterion ground as follows:

The primary judge erred at [33] of the judgment by finding that the decision by the Tribunal did not misapply the real chance test at [76] of the decision record, when assessing whether the applicant faced a real risk of significant harm under the complementary criterion.

Particulars

a)    Having found that there was ongoing sectarian violence and generalised violence in the FATA and having accepted DFAT assessments of a risk of violence in those areas, the Tribunal's finding that the applicant did not face a real risk of significant harm as a consequence of being removed to Pakistan constituted a misunderstanding of the test for a complementary protection.

89    At DR[75]-[76], the Tribunal said (as written):

75.    The Tribunal has considered whether the applicant would suffer significant harm based on his Shia religion, his Bangash ethnicity, an imputed political opinion based on his Shia religion, an imputed political opinion in opposition to the Taliban and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar and his extended presence in Australia (a western country with Christian heritage) as an asylum seeker, or his membership of a particular social group of Bangash Shia from Kurram Agency. The Tribunal is not satisfied on the basis of the country information before it and the Tribunal’s findings in the reasons discussed above regarding the improve security situation in the applicant’s home area located in Upper Kurram in Kurram Agency, FATA, and the applicant’s particular profile, including his occupation, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk he will suffer significant harm.

76.    While the Tribunal accepts that there may continue to be some sectarian, militant and generalized violence in the FATA generally, based upon all the country information before it and the Tribunal’s earlier findings and reasons, the Tribunal does not accept that the applicant faces a real risk of significant harm because of sectarian, militant or generalized violence including in his home area in Upper Kurram. The Tribunal also finds on the basis of the country information cited above and the applicant’s individual circumstances, that there are not substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm due to his extended presence in Australia (a western country with Christian heritage) as an asylum seeker or as a returnee from a western country or as a failed asylum seeker.

90    ANH16 again relied on the 2015 DFAT report’s finding of “a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas” to make the assertion in the particulars to this ground. As before the primary judge, counsel for ANH16 said that, in considering complementary protection obligations, the Tribunal erred by limiting itself to the bases of his Convention claims and failing to consider the risk posed by generalised violence.

Consideration

91    This ground should also be rejected.

92    It is first notable that at DR[73], the Tribunal correctly recorded that it would consider the alternative criteria in s 32(2)(aa) of the Migration Act, being whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of ANH16 being removed from Australia to Pakistan, there is a real risk that he will suffer “significant harm” as defined in s 36(2A) of that Act.

93    As found by the FCCA Judge:

(1)    On a fair reading of DR[76], the Tribunal made findings with respect to generalised violence and violence from militants: J[31]. In this regard, the FCCA Judge found that the Tribunal was entitled to rely on its findings in relation to Convention claims in assessing the complementary protection criterion, relying on the decision of Davies J in CTN15 v Minister for Immigration and Border Protection [2017] FCA 611 at [7]: J[32]. The Court notes the Tribunal’s findings at DR[64], [65] and [67] in this regard and the country information on which they were based cited earlier in the decision record.

(2)    Each of the protection claims (including to complimentary protection) made by ANH16 was framed as a Convention claim as explicitly confirmed in ANH16’s representative’s letter to the Tribunal dated 12 November 2015: see J[31].

The Court perceives no appellable error in these findings.

94    The FCCA Judge did not err in his Honour’s conclusion at J[33]. For the same reasons as those set out above in relation to the third ground, the premise of the particulars to this ground should be rejected. The fact that the Tribunal accepted that there was some sectarian, militant and generalised violence in the FATA generally did not necessitate a finding that there was a “real risk” of “significant harm” as counsel for ANH16 would have it. The argument based on the FATA as a whole invites the Court to impermissible merit review. The Tribunal properly, and carefully, considered the material before it in relation to the situation in Upper Kurram to which ANH16 would return in reaching the conclusion that it did.

Conclusion

95    As none of the grounds of appeal has been made out, the appeal should be dismissed with costs.

Associate:

Dated:    10 January 2020