FEDERAL COURT OF AUSTRALIA

ADH17 v Minister for Immigration and Border Protection [2020] FCA 53

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    On 7 December 2018, the appellant filed an application for an extension of time within which to appeal from the judgment and orders of the Federal Circuit Court of Australia pronounced on 24 October 2018, published as ADH17 v Minister for Immigration and Anor [2018] FCCA 2968. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 December 2016 refusing to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

2    The application for an extension of time was supported by an affidavit of Kurt William Esser sworn on 30 November 2018 which exhibited a draft notice of appeal. On 7 May 2019, Moshinsky J granted the extension of time and ordered that the draft notice of appeal stand as the notice of appeal in the proceeding.

3    The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1.

4    The notice of appeal contains a single ground: that the primary judge erred by not accepting the appellant’s arguments presented to the Federal Circuit Court. Thus, this appeal concerns the same issues as those raised before the primary judge.

5    On 27 May 2019, timetabling orders were made for the filing of submissions by the appellant and the Minister. The appellant did not comply with the timetable with the result that the Minister filed submissions in advance of the appellant. Nevertheless, the hearing of the appeal occurred as scheduled and, at the hearing, the appellant was represented by Counsel.

6    For the reasons explained below, I dismiss the appeal.

Background

7    The appellant is a male citizen of Chad who first entered Australia as an unauthorised air arrival on 1 July 2012. On 6 August 2012, the appellant applied for a protection visa and set out his claims for protection in a written statement dated 27 July 2012. In that statement, the appellant provided the following background information about his life:

My name is [the appellant]. I am 33 years old and a citizen of Chad. I was born in North Chad, in Moso Kori and grew up there. My father is deceased. I have a mother and two unmarried sisters aged 29 and 25 years who live in Chad. I have no formal education and have no education apart from Koran studies between the ages of 6-11. As a child, I worked selling water to help support my family. I then worked as a mechanic assistant and then a personal assistant/driver. I am married with 3 daughters aged 6, 4 and 2.5 years. My wife and children are in Saudi Arabia, which is where I lived before coming to Australia. I moved to Saudi Arabia from Chad in September 2004. I married in Saudi Arabia and my daughters were born there. I have no legal rights to reside in Saudi Arabia. I cannot return to Chad because I fear I will be killed or seriously harmed if I do so.

8    The statement set out the basis for the appellant’s principal claim for protection. It is unnecessary to set out the claim in detail. The Tribunal found that the appellant was not a truthful witness and did not believe the principal claim. That finding was not the subject of the application for review in the Federal Circuit Court and is not raised on this appeal. Nevertheless, it is necessary to have some understanding of the appellant’s principal claim in order to understand the context in which a further claim was made before the Tribunal, which is the subject of this appeal. The following is a summary of the principal claim, drawn from the appellant’s statement dated 27 July 2012:

(a)    The appellant stated that problems for him started in Chad when, in 1998, he was offered a position of employment in the capital city of Chad, N'Djamena, by a man named Haroun Koso Moussa. The appellant worked for Haroun until 2004 as a driver and assistant. Haroun was a merchant who had previously been a military officer under the former president Hasan Hardi. Haroun’s wife was from a powerful political family which included army generals. Haroun and his family were supporters of the opposition party in Chad, known as the Movement for Democracy and Justice in Chad (MDJT). MDJT is a Chadian rebel group that tried to oust the Chadian government and current president Idriss Deby.

(b)    The appellant stated that he undertook various errands for Haroun as part of his role. One of his regular tasks was to drop off goods to a colonel named Edrishay, who used to work for the government but had left and was now supporting the opposition. The appellant claimed that he transported goods such as ammunition, money, bullets, boxes and a land cruiser to the colonel. In August 2003, the appellant claimed that he was asked by Haroun to deliver some wireless devices (similar to “walkie-talkies”) to the colonel. Upon returning to Haroun’s house, the appellant saw that Haroun’s uncle (who was an army general) was there. Haroun’s uncle told the appellant that members of the intelligence services had discovered the equipment he had taken to the colonel and that Haroun was under arrest. The uncle told the appellant to run away as his life was at risk.

(c)    The appellant claimed that, some time later, intelligence officers came and arrested him. He claimed that he was imprisoned and tortured for a month.

(d)    The appellant claimed that, while he was in hospital being treated for a gunshot wound to his leg, a relative helped him to escape and took him to Cameroon. The relative then obtained his passport and helped him get a visa to Saudi Arabia.

(e)    The appellant stated that he does not have the right to live in Saudi Arabia. He stayed in Saudi Arabia unlawfully after arriving in 2004.

(f)    The appellant claimed that, in 2009, he found out that his name was on a list of wanted persons published by the Chad Embassy. He claimed that he cannot return to Chad because he has a well-founded fear that he will be killed based on his political opinion and association with Haroun. The appellant claimed that that was why he left Saudi Arabia and travelled to Australia.

9    On 27 August 2012, the appellant was invited to attend an interview with a delegate of the Minister. He attended the interview on 7 September 2012. The delegate refused to grant the appellant a protection visa on 28 November 2014.

10    On 8 December 2014, the appellant applied to the Tribunal for review of the delegate’s decision. Prior to the Tribunal hearing, the appellant provided the Tribunal with a statutory declaration dated 29 July 2016. The statutory declaration referred to the previous claims made by the appellant, and included the following statement concerning the Islamic extremist group, Boko Haram (which was the subject of the application for review in the Federal Circuit Court and is the subject of this appeal):

In addition to the activities of the current government, in recent years the Islamic extremist group Boko Haram has become active in Chad. This group has been responsible for numerous attacks on the population. I have learnt that my sister, Zainab, was a victim of a Boko Haram attack which took place in the capital N’Djamena in July 2015.

11    The appellant’s migration agent provided the Tribunal with a written submission dated 22 September 2016. With respect to the appellant’s claims for protection under the refugee and complementary protection criteria, the submission repeated the appellant’s original claims. Under the heading “Relevant Country Information”, the submission contained the following statements relating to Boko Haram (errors in original):

It is submitted that the applicant’s well-founded fear of persecution in Chad is credible and consistent with independent country information available. It is further submitted that the situation in Chad has not changed to any significant degree since the departure of [the appellant], and there are numerous reports of the existence of widespread violations of human rights, including at the hands of the Chadian authorities. To the extent that the situation has changed, it is submitted that the situation has become more unsafe in safe, with new issues, including the emergence of Boko Haram in recent years, now exist as a further security issue.

…

Of further note is the emergence of Islamic extremist groups in Chad, such as Boko Haram, in recent years, which have increased the level of human rights abuses in the country. Amnesty International recently reported on the numerous incidents related to the activities of Boko Haram and notes:

Boko Haram killed more than 200 civilians during the year, and looted and destroyed private properties and public facilities. Violence lead to the displacement of approximately 70,000 people.

It is submitted, with regard to the reports cited above, there has not been any improvement in the human rights situation in Chad and there is evidence that the situation has in fact deteriorated.

12    Under the heading “Relocation and State Protection”, the submission stated:

It is submitted that as [the appellant] fears a state actor, he is unable to avail himself of the protection of the state. Further relocation to elsewhere in Chad is not an option for [the appellant], as the agencies of the Chad government operate throughout the country and would be able to locate him wherever he relocated to.

13    The submission did not expressly state that the appellant sought protection because of the activities of Boko Haram in Chad.

14    On 8 December 2016, the Tribunal affirmed the delegate’s decision.

15    On 11 January 2017, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The appellant filed an amended application on 16 October 2017. The Federal Circuit Court dismissed the appellant’s application on 24 October 2018.

The Tribunal's Decision

16    As noted above, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

17    The Tribunal accepted that the appellant was a national of Chad who did not have a right to enter or reside in any other country except Chad (at [54]). The Tribunal concluded that Chad is the appellant’s receiving country for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act.

18    The Tribunal found that the appellant was not a witness of truth. It rejected all of the appellant’s principal claims, including that (at [87]):

(a)    the appellant was employed by a person in Chad who was an active member of the MDJT;

(b)    he made deliveries to opposition party members;

(c)    he was arrested, imprisoned, tortured and forced to sign a confession;

(d)    he escaped from hospital and fled Chad for the reasons claimed;

(e)    he is or was of adverse interest to the Chadian intelligence agency or government;

(f)    one of his friends advised him that he was wanted in Chad by staff at the Embassy in Saudi Arabia; and

(g)    he overheard a conversation in 2010 and 2011 that he was wanted in Chad.

19    The Tribunal found that the appellant was not interested in politics and did not remain in contact with anyone (including colleagues from the MDJT) due to a shared interest in politics (at [88]). It also did not accept that the appellant would be perceived or be imputed as having a political opinion due to his previous employment in Chad, that he had a political opinion or was politically opposed to the Chadian government, or that he would undertake any political activity upon returning to Chad (at [89]). Accordingly, the Tribunal did not accept there was a real chance that the appellant would be harmed or mistreated due to his real or imputed political opinion, including his purported (but not accepted) involvement with MDJT if he returned to Chad (at [90]-[92]).

20    The Tribunal also rejected various other claims made by the appellant:

(a)    the Tribunal did not accept the appellant’s claim that there were outstanding court sentences against him in Chad (at [95]);

(b)    the Tribunal was not satisfied that the appellant would face a real chance of serious harm on the basis of racism or his tribal membership upon his return to Chad (at [97]); and

(c)    based on country information, the Tribunal did not accept the appellant’s claim that returnees to Chad, including failed asylum seekers from Western countries, were targeted, imprisoned or “disappeared” upon their return to Chad (at [98]-[99]).

21    The Tribunal set out the appellant’s claims concerning Boko Haram made in his statutory declaration dated 29 July 2016 and the submission dated 22 September 2016 (at [31]) and made the following findings:

100. During the hearing the Tribunal also spoke to the applicant about his fears of being harmed by Boko Haram. The Tribunal noted the applicant had declared his sister was killed by Boko Haram and on questioning the applicant told the Tribunal Boko Haram is targeting all people and while they do not know the applicant, they are targeting everyone.

101. The Tribunal notes the country information indicates Boko Haram does operate in Chad and has stepped up attacks in the capital. Boko Haram killed more than 200 civilians during the year and looted and destroyed properties and public facilities. While the Tribunal has significant concerns about the applicant’s credibility, in light of the country information the Tribunal is prepared to accept the applicant’s sister was killed by Boko Haram. The Tribunal notes the applicant’s oral evidence when questioned if Boko Haram would target the applicant specifically, the applicant told the Tribunal they are targeting everyone.

102. While the Tribunal accepts Boko Haram attacks have increased in Chad, on the information before it, the Tribunal does not accept the applicant would be specifically targeted by Boko Haram and the Tribunal does not accept the attacks from Boko Haram are aimed at the applicant specifically or involve systemic and discriminatory conduct as required by s.91R(1)(c).

…

115. While the Tribunal accepts Boko Haram attacks have increased in Chad, on the information before it, the Tribunal does not accept Boko Haram will specifically target the applicant and the Tribunal considers the risk of harm from Boko Haram is one faced by the population of the country generally and is not faced by the applicant personally. Therefore, in accordance with s.36(2B)(c) the risk is taken not to be a real risk that the applicant will suffer significant harm in Chad.

22    Ultimately, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution and found he did not meet the criteria in s 36(2)(a) of the Act (at [103]-[105]) and was not satisfied that the appellant’s claims, considered individually and cumulatively, gave rise to a real risk of significant harm and found he did not meet the criteria in s 36(2)(aa) of the Act (at [117]-[118]).

Federal Circuit Court Decision

23    On 11 January 2017, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court under s 476 of the Act. An amended application was filed on 16 October 2017.

24    Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

25    The grounds of review stated in the amended application to the Federal Circuit Court were as follows:

1. The Tribunal misunderstood or misconstrued s 36(2B)(c), with respect to the claims concerning Boko Haram.

2. The Tribunal failed to respond to the Boko Haram claims, in that it purported to dispose of these claims based on s 36(2B)(c) where there was an inadequate basis for such findings.

26    The application was heard by the primary judge on 18 May and 7 August 2018, and the primary judge delivered judgment on 24 October 2018, dismissing the application.

27    The appellant argued that, in applying s 36(2B)(c), the Tribunal was required to make findings as to where in Chad the appellant would likely return if removed from Australia (to assess the risk of significant harm) and had erred in failing to do so, relying on the reasons of the Full Federal Court in CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 (CSO15) at [45]. The primary judge rejected that argument and concluded that, as the Tribunal had rejected the factual premises on which the appellant’s claims were based, it was unnecessary for the Tribunal to undertake the exercise contemplated by the Full Court in CSO15 (at [35]).

Appellant’s submissions

28    The appellant submitted that the Tribunal’s analysis of s 36(2B)(c) was “thin” and inadequate to engage the exclusion.

29    In reliance on BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313 (BCX16) at [37]-[38], the appellant submitted that the concept in s 36(2B)(c) of a risk being faced by a non-citizen personally may include a risk faced by a person because of the circumstance that he or she resides in a specific area of a country, notwithstanding that other persons residing in the same area are exposed to the same risk. The appellant argued that the Tribunal found (at [101]) that country information indicated that the risk of harm from Boko Haram was elevated in the capital of Chad, N’Djamena. The appellant further submitted that there was a credible possibility that the appellant may return to live in N’Djamena, given that he had lived there in the past, and that if he were to return to Chad and live in N’Djamena, and the risk from Boko Haram in N’Djamena was higher than the risk in other parts of the country, the exclusion under s 36(2B)(c) would not be engaged.

30    In reliance on CSO15 at [42]-[48], the appellant submitted that the facts before the Tribunal about the appellant’s personal circumstances, and the information provided about Boko Haram, required the Tribunal to grapple with the question of where within Chad the appellant would return to. Unless that question was considered, the Tribunal would be unable to reach a decision about the applicability of s 36(2B)(c).

31    Although the Tribunal recorded (at [100]-[101]) that the appellant had stated that Boko Haram is targeting everyone, the appellant submitted that it is not clear from the Tribunal’s reasons whether the appellant was referring to everyone in N’Djamena or everyone in the country generally. Therefore, the appellant’s statement was not a sufficient basis for the Tribunal to find that the risk of harm from Boko Haram was one faced by the population of the country generally.

Minister’s submissions

32    The Minister advanced two primary submissions in response to the appeal.

33    First, BCX16 is distinguishable from the present case because the appellant did not claim that there was a real risk of significant harm if he was returned to the capital of Chad, N’Djamena, because of the increase in attacks by Boko Haram there. The Tribunal recorded (at [100]-[101]) that, in answer to questions from the Tribunal, the appellant stated that “Boko Haram is targeting all people and while they do not know the applicant, they are targeting everyone”. The Minister submitted that the Tribunal was therefore not required to consider whether or not the appellant’s residency in N’Djamena was, of itself, a circumstance that exposed him to a real risk of significant harm as a non-targeted citizen, relying on CSO15 at [54] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58] and [68].

34    Second, and in any event, the Tribunal’s reasons disclose an acceptance by the Tribunal that the applicant was likely to return to the capital (at [101]), but the Tribunal found that “Boko Haram attacks have increased in Chad” and did not accept that Boko Haram would specifically target the appellant. On that basis, the Tribunal concluded that the risk of harm from Boko Haram was one faced by the population of the country generally and was not faced by the appellant personally, either by dint of his residency in N’Djamena or for any other reason. In other words, the Tribunal’s findings were founded on an understanding that the appellant would likely return to the capital, but that the relative risk to the appellant in the capital was no different to that experienced by the general population of Chad.

Consideration

35    The appeal concerns the complementary protection criterion in s 36(2)(aa) of the Act and the meaning and application of s 36(2B)(c).

36    Section 36(2)(aa) provides as follows:

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

37    Section 36(2B) provides as follows:

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)     the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

38    Section 36(2B)(c) has been considered in a number of decisions of this Court, including particularly SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (SZSPT), BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 (BBK15) and BCX16.

39    In SZSPT, Rares J rejected an argument that the complementary protection criterion was satisfied in circumstances where the appellant might face punishment including imprisonment for leaving Sri Lanka illegally in contravention of Sri Lanka’s criminal law. His Honour concluded that the exception in s 36(2B)(c) was engaged because the relevant criminal law applied to the population of Sri Lanka generally. His Honour said (at [11]):

In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.

40    In BBK15, Buchanan J stated (at [30]) that “s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense”, referring to SZSPT at [11]. His Honour concluded (at [31]) that the Tribunal had correctly applied s 36(2B)(c) having found that the appellant would not face a particular, personal risk of harm in the Sadda area, if returned to Pakistan, and that any risk of harm he would face was one which arose from sectarian or generalised violence in Pakistan. His Honour further observed that (at [32]):

I also reject the Appellant’s contention that s 36(2B)(c) only applies if a risk is faced by all members of the population of a country. In my view, the Tribunal was correct to understand that a reference to “the population of the country generally” is a reference to the commonly understood concept of the general population – i.e. there need not be a risk faced by all members of the population or by each citizen of a country for s 36(2B)(c) to apply.

41    In BCX16, the appellant relied on his place of residency in Kabul as a personal circumstance that caused him to face a real risk of significant harm that was not the same as that faced by the population of Afghanistan generally. Charlesworth J concluded (at [37]):

Read in the context of s 36(2B)(a), the concept in s 36(2B)(c) of a risk being faced by a non-citizen personally in my view may include a risk faced by a person because of the circumstance that he or she resides in an area of a country. A risk to which a person is exposed because of the circumstance that he or she resides in a specific area of the country is, in my view, a risk that is faced by the person personally, notwithstanding that other persons residing in the same area are exposed to the same risk. In such cases, s 36(2B)(a) operates so that in cases where it would be reasonable for such a person to relocate to an area of the country where there would not be a real risk that he or she would suffer significant harm, then the risk in fact faced by the person must be taken not to be a real risk.

42    The above cases illustrate that the proper construction and application of s 36(2B)(c) in various circumstances may not be straightforward. The exception juxtaposes the concept of a risk faced by the population of a country generally with a risk faced by the non-citizen personally. Each of SZSPT and BBK15 support the conclusion that the phrase “faced by the population of the country generally” does not mean that the risk must be faced by everyone in the country. The question of when a risk is “general” and not “personal” for the purposes of s 36(2B)(c) may be difficult to determine, particularly if the risk is geographically located, as in BCX16. While BCX16 concerned a risk in the capital city of a country (Kabul), questions might arise whether a risk is personal and not general for the purposes of s 36(2B)(c) if it exists in a wider geographic area, for example the northern half of a country compared with the southern half.

43    It is unnecessary to explore such questions further in this case. Neither party submitted that any of the above cases that have considered s 36(2B)(c) was wrongly decided or should not be followed. For the reasons explained below, in my view the facts of the present case are analogous to the circumstances considered by Buchanan J in BBK15 and are not analogous to the circumstances considered by Charlesworth J in BCX16. In the present case, the appellant did not expressly claim that, if returned to Chad, he faced a real risk of significant harm by reason of likely residency in the capital N’Djamena; nor did such a claim clearly arise from the submissions and evidence before the Tribunal. In my view, the appellant’s claim was correctly understood by the Tribunal as facing a risk of harm throughout Chad, expressly on account of the appellant’s political opinions, but potentially also on account of the activities of Boko Haram.

44    It is well established that where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. In NABE, the Full Court of the Federal Court considered the question whether jurisdictional error might arise if the Tribunal failed to consider an argument that was not expressly made but which arose from the facts before the Tribunal. The Full Court said (at [58]):

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

45    In NABE, the Full Court concluded (at [61]) that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.

46    In the present case, the appellant did not expressly advance a claim for protection, either before the Minister or before the Tribunal, based on the activities of Boko Haram in Chad. In his statutory declaration dated 29 July 2016 which was submitted to the Tribunal, the appellant stated that he continued to rely on the information previously provided to support his claims. As described above, those claims related to events arising from the appellant’s employment by a man named Haroun. In relation to Boko Haram, the appellant stated that the group had become active in Chad and had been responsible for numerous attacks on the population. The appellant also stated that his sister had been a victim of a Boko Haram attack which took place in the capital N’Djamena in July 2015. The written submission dated 22 September 2016 provided to the Tribunal on behalf of the appellant referred to the activities of Boko Haram under the heading “relevant country information”. The submission did not state that the appellant feared harm by reason of the activities of Boko Haram. The submission stated that the security situation in Chad generally had not improved and, indeed, had worsened, including as a result of the emergence of Boko Haram. Specifically, the submission stated that, as a result of the activities of that group, the level of human rights abuses in the country had increased.

47    Although not expressly articulated by the appellant, the Tribunal nevertheless considered whether the activities of Boko Haram in Chad were such as to trigger Australia’s protection obligations under either the refugee or complementary protection criteria. In doing so, the Tribunal understood that the risk of harm from Boko Haram related to the country of Chad generally. The Tribunal accepted country information which stated that Boko Haram attacks had increased in Chad and recited information from an Amnesty International report that had been referred to in the appellant’s submission to the effect that Boko Haram had killed more than 200 civilians during the year in question and looted and destroyed properties and public facilities. The Tribunal concluded, however, that the risk of harm from Boko Haram is one faced by the population of the country generally and is not faced by the applicant personally within s 36(2B)(c).

48    In an effort to bring his case within the principles stated by Charlesworth J in BCX16, the appellant contended that the Tribunal had found that the risk of harm from Boko Haram was elevated in the capital of Chad, N’Djamena. I reject that contention. The appellant made no submission to the Tribunal that Boko Haram presented an elevated risk in the capital; such a claim did not clearly arise from the submissions and materials before the Tribunal; and the Tribunal made no such finding. While the Tribunal recorded that country information indicated that Boko Haram had stepped up attacks in the capital, in my view that statement is not a finding that the risk of harm from Boko Haram’s activities was greater in the capital than in other parts of Chad. The Tribunal accepted the appellant’s submission that his sister had been a victim of a Boko Haram attack, but the Tribunal did not refer to the fact that the attack had occurred in the capital and it is apparent that the Tribunal placed no significance on the location of that particular attack. The fact that that particular attack occurred in the capital provides no basis for a conclusion that the risk of harm from future attacks by Boko Haram is greater in the capital. Having regard to the evidence before me on this appeal, which consisted of the appellant’s statutory declaration and submission referred to above, in my view there was no proper basis for the Tribunal to conclude that the risk of harm from Boko Haram was greater in the capital than in the country of Chad generally and the Tribunal made no such finding.

49    In those circumstances, it was unnecessary for the Tribunal to consider and make findings about the area or areas of Chad in which the appellant would likely reside if he returned. The appellant had made no submissions to the Tribunal about his likely place of residence if he returned. The evidence before the Tribunal was that the appellant had grown up in the north of the country and had moved to the capital when he was 19 years old in 1998. The appellant’s submission that there was at least a possibility that he would return to reside in the capital can be accepted. However, it was not relevant for the Tribunal to make a direct finding about the appellant’s likely place of residence if returned to Chad in circumstances where the appellant had submitted to the Tribunal that he faced a risk of harm from government agencies throughout Chad and the appellant submitted, and the Tribunal found, that attacks by Boko Haram had increased in Chad generally.

Conclusion

50    In conclusion, in my view the grounds of appeal do not identify any jurisdictional error on the part of the Tribunal. The appeal should be dismissed with costs.

Associate:

Dated:    7 February 2020