Federal Court of Australia

CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant be granted leave to amend the notice of appeal.

2.    The appeal be allowed.

3.    Order 2 of the orders of the Federal Circuit Court made 27 February 2020 be set aside and in lieu thereof the Court orders that the decision of the Second Respondent dated 18 July 2016 be quashed, and the Appellant’s visa application be remitted to the Second Respondent to be re-determined according to law.

4.    The First Respondent pay the Appellant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

MURPHY J:

1    By a proposed amended notice of appeal dated 27 November 2020 the appellant appeals from a judgment of the Federal Circuit Court handed down on 27 February 2020, which dismissed his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal made 18 July 2016. The Tribunal had affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refusing to grant the appellant a Protection visa (visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2    The grounds of the proposed amended notice of appeal are new, not having been raised before the Federal Circuit Court, and the appellant therefore requires leave of the Court before he may advance the grounds. For the reasons I explain, I am persuaded that it is appropriate to grant leave to the appellant to advance the fresh grounds of appeal, and to allow the appeal on one of the grounds.

Background Facts and procedural history

3    The appellant is a male citizen of Pakistan, and a member of the Turi tribe of Shia Muslim faith. He arrived in Australia by boat on 9 August 2012, without a visa, and was therefore an “unauthorised maritime arrival” under the Act. On 19 December 2012, he lodged an application for a visa together with a statutory declaration dated 12 December 2012, in which he stated that:

(a)    he was born in a village in Lower Kurram Agency, Pakistan;

(b)    his father owned 60 Jeribs of land spread over four areas in Kurram Agency on which he employed 10-15 workers, growing wheat, rice, corn and other vegetables;

(c)    the appellant went to Peshawar to study at the Agricultural University in 2006;

(d)    he led a comfortable life until 2007, when the Taliban began attacking areas where Shiites lived including the area near his family’s farm and they occupied part of his family’s farm;

(e)    in May 2008, the appellant’s uncle was kidnapped and subsequently beheaded by the Taliban;

(f)    in August 2008, whilst he was attending university in Peshawar, his home village was attacked by the Taliban and people were killed. The Taliban also attacked his family’s farm and some workers were killed and others escaped. As a result, the Taliban confiscated his family’s farm and his father moved the rest of his family to Parachinar;

(g)    in August 2008, the appellant’s 18 year old cousin was killed by the Taliban while fleeing to Parachinar with the appellant’s father;

(h)    the appellant’s father was unable to seek medical treatment because of roadblocks around Parachinar, and died of a heart attack;

(i)    there were 80 Shia students from the Kurram Agency studying in Peshawar and they could not go home because of roadblocks. The appellant was effectively stranded in Peshawar;

(j)    in July 2010, the appellant joined a convoy leaving Peshawar in an attempt to return to his family. However, a convoy going in the opposite direction was ambushed by the Taliban and around 18 people were killed and as a result the appellant abandoned his attempted return; and

(k)    the appellant and other students protested at the Provincial Government House in Peshawar about the situation with the road, but received no support, so they took the protest to Islamabad. They camped outside Parliament House for two months but they received little support;

(l)    when the students returned to their accommodation in Peshawar, the appellant and other students from the Turi tribe were sent generic threatening letters by the Taliban, and he and others also received some threatening text messages by telephone;

(m)    later some Shiites were kidnapped from Peshawar; and

(n)    the appellant then took steps to seek asylum in Australia.

The delegate’s decision

4    On 23 October 2013, the appellant attended an interview with a delegate of the Minister. On 29 August 2014, the delegate refused to grant the visa application.

5    The delegate’s decision has been superseded by the decision of the Tribunal and it is unnecessary to go to it in detail. It suffices to note that the delegate found that the appellant had a well-founded fear of persecution in the Kurram Agency as a Shia Muslim of the Turi tribe for reasons of his religion and for his imputed political opinion, but concluded that he could reasonably and practicably relocate within Pakistan to Peshawar, Islamabad, Rawalpindi or Karachi. On that basis the delegate was not satisfied that Australia owed the appellant protection obligations under s 36 of the Act.

The Tribunal’s decision

6    On 4 September 2014, the appellant applied to the Tribunal, then known as the Refugee Review Tribunal, for a review of the delegate’s decision.

7    On 10 February 2016, the Tribunal invited the appellant to attend a hearing on 9 March 2016 to give evidence and present arguments relating to the issues arising on the decision under review.

8    On 4 March 2016, the appellant’s legal representative provided the Tribunal with pre-hearing submissions and a further statutory declaration dated that day in which he provided some further details about why he returned to Peshawar after his convoy had been attacked in July 2010. He also said that in June/July 2009 he was travelling on a bus from Quetta to Peshawar which was attacked by the Taliban and at least one person died. He said that due to his fear of the Taliban infiltrating the University there were nights when he left his university accommodation to hide in nearby bushes.

9    On 9 March 2016, the appellant attended the Tribunal hearing with the assistance of his legal representative, an interpreter and a friend.

10    On 23 March 2016, the appellant’s legal representative provided the Tribunal with post-hearing submissions, stating:

(a)    the test to be applied when assessing whether the appellant has a well-founded fear of persecution;

(b)    that reports as to the return of internally displaced persons in Pakistan to the area did not provide strong evidence of a sustained improvement in the security situation in the Kurram Agency, nor was it a reliable indication of the level of risk for the appellant should he be returned to Pakistan;

(c)    in relation to the possibility of relocation, that Shia Muslims are not safe anywhere in Pakistan;

(d)    that the military operations by the Pakistani army against the Taliban were not as successful as claimed and, for so long as the Taliban maintained a strong presence in Pakistan, there remained a real chance that the appellant would be persecuted in the reasonably foreseeable future if he is returned there.

11    On 18 July 2016, the Tribunal affirmed the delegate’s decision to refuse the visa application. The Tribunal broadly accepted the appellant’s account, including as to the confiscation of his family’s farm and the killing of their employees; the murders of his uncle and cousin and the death of his father; the appellant becoming stranded in Peshawar and caught up in violence on the roads when a bus he was travelling on was attacked and bordered by members of the Taliban, the appellant attempting to flee Peshawar but abandoning his attempt because the convoy coming from the opposite direction was attacked, and his subsequent participation in protests and his receipt of generic threats from the Taliban.

12    Having regard to country information the Tribunal found that:

(a)    “there has been sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counter-insurgency campaigns” (at [47]);

(b)    “Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups, including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban” (at [54]);

(c)    “there continue to be incidents of sectarian violence in the FATA (Federally Administered Tribal Areas) including in Kurram Agency where the [appellant’s] home village…is located” (at [64]);

(d)    “there is some level of risk to the [appellant] in the context of generalised violence” (at [65]); and

(e)    “there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured” (at [66]).

13    The Tribunal however concluded that the security situation in the Federally Administered Tribal Areas (FATA), including the Kurram Agency, had improved. While it accepted that the security situation can “change and fluctuate” and that there was “an element of vulnerability in the government security measures” (at [63]), it said that having regard to the most recent DFAT assessment, as well as credible and independent country information from other sources, a level of security had been restored to the Kurram Agency and “general peace” restored. On that basis the Tribunal found that there is not a real chance that the appellant would suffer serious or significant harm from the Taliban or other anti-Shia extremist groups on return to the Kurram Agency (at [63]-[64]).

14    In reaching that conclusion, the Tribunal had regard to continuing incidents of sectarian violence in the Kurram Agency, including an IED attack on a market in Parachinar on 13 December 2015 in which at least 25 people were killed and over 70 were injured (the December 2015 Attack). The Tribunal, however, considered that the weight of evidence indicated that there had been a significant and sustained improvement in the security situation in the Kurram Agency since 2013/14, and that it would be premature to conclude that the December 2015 Attack marked a definite change in the security situation. It said that it would be “mere speculation” to find on the evidence before it that the December 2015 Attack meant that there has been such a deterioration in the security situation in Parachinar or in Kurram Agency more generally, that there is a real chance that any individual Shia Turi, including the appellant would be killed or injured in the reasonably foreseeable future (at [64]).

15    The Tribunal concluded that the risk to the appellant was remote and did not accept that there was a real chance that he would be targeted and suffer serious harm for a Convention reason on return to the Kurram Agency now or in the reasonably foreseeable future (at [65]-[68]). The Tribunal relied on the same findings to conclude that there was not a real chance that the appellant would suffer significant harm under the complementary protection criteria in the Act (at [69]-[72]).

The Federal Circuit Court

16    By an amended application dated 20 December 2019, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The appellant advanced two grounds of review before the primary judge.

17    On 27 February 2020, the primary judge dismissed the application for judicial review. Neither of the grounds upon which the primary judge made the decision are the subject of the appeal, and it is unnecessary to set them out.

The appeal to this Court

18    By a proposed amended notice of appeal dated 27 November 2020, the appellant alleges four fresh grounds of review of the Tribunal decision. The appellant requires leave of the Court before he may advance grounds on appeal which were not raised in the Court below.

Whether leave should be granted

19    It is established that where a proposed new ground of appeal could not possibly have been met by calling evidence in the hearing below, an appellate court has a discretion to permit an appellant to argue a new issue on appeal where it considers that it is expedient in the interests of justice to entertain the issue: Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). Generally speaking the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 317 ALR 665 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).

20    Those principles were discussed in the context of migration appeals in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ) and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166] (Madgwick J, with whom Conti J agreed). In NAJT the Full Court set out a non-exhaustive list of the considerations relevant to a grant of leave in that context.

21    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases. When determining whether it is expedient in the interests of justice to grant leave to advance a fresh ground of appeal it is important to take into account the serious consequences that may attend a wrongful refusal of a protection visa: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [36] (Murphy, Mortimer and O’Callaghan JJ), Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [56]-[58] per Mortimer J.

22    The merit of the proposed new grounds are an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; (2014) 226 FCR 68 at [55] (Flick J).

23    One consideration weighing against a grant of leave in the present case is that the appellant was represented in the Federal Circuit Court by solicitors and counsel experienced in proceedings such as this, and he is represented by the same solicitors in the appeal. The amended grounds of review before the Court below were drafted by counsel, and the evidence shows that the proposed new grounds were only advanced when new counsel came into the case because of the previous counsel’s unavailability. A new ground of appeal may though be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J); approved in CGA15 at [37].

24    Other considerations point in favour of a grant of leave. First, each of the proposed new grounds raises questions of law based in the proper construction of the Tribunal’s reasons. They could not have been addressed by calling evidence. Second, although the proposed new grounds are new, ground two is similar to ground one of the application below. Third, there is no substantial difference between the time to be taken by the Court to deal with an application for leave to appeal and to deal with the appeal substantively. The entire matter was heard in three hours. Fourth, the Minister does not contend that he will suffer any prejudice if leave is granted, whereas the prejudice suffered by the appellant may be significant if leave is refused. Fifth, in relation to the merits of the proposed new grounds, the Court is required is to decide whether the proposed ground is reasonably arguable, or has reasonable prospects of success, and it should not descend into a full consideration of the arguments for and against the ground so as to decide it. At that level I consider all but one of the proposed new grounds to be reasonably arguable, and as I explain ground four is made out. In the circumstances it is expedient in the interests of justice to grant leave to advance the proposed new grounds of appeal.

Ground one

25    Ground one of the appeal alleges as follows:

The Tribunal failed to discharge its task, in that it chose to consult superseded country information, and ignored up-to-date information from the same sources which indicated a material change in country conditions.

Particulars

The Tribunal relied principally on country information from 2014 and 2015 (see, e.g., [18], [55]-[57] of its reasons) in finding that the Appellant did not face a real chance or risk of harm from generalised or sectarian violence in his home region, and that the perceived decline in violence was likely to continue. However, the Tribunal overlooked or ignored more recent country information which differed materially from the country information consulted. It thereby failed to discharge its task.

26    Ground one is based in the Tribunal’s reliance on what the appellant asserts was “outdated” or “superseded” country information. The appellant’s claim to have a well-founded fear of persecution was in large part premised on the threat of harm from sectarian or generalised violence by anti-Shia extremists including the Taliban, in the FATA and his home region of the Kurram Agency. The Tribunal accepted the appellant’s claim in relation to the violence and threats suffered by him and his family, that since 2007 there had continued to be incidents of sectarian and generalised violence against Shia Muslims in the FATA and in Kurram Agency, and that there was some level of risk to the appellant in the context of that violence. The Tribunal, however, considered that there had been a decline in sectarian and generalised violence in Kurram Agency, which it discussed with the appellant at the hearing (at [62]).

27    In his post-hearing submissions the appellant asserted that “the purported improvements in the current security situation for Shias, particularly those of the Turi Tribe originating from Kurram Agency, cannot be said to be durable.” He submitted that the return of internally displaced persons to the FATA “cannot be taken to indicate more than a very basic, and possibly temporary, improvement in the general security situation.”

28    The Tribunal expressly noted these submissions (at [36]-[37]), and said (at [53]) that it had considered them. But it said (at [54]):

However, as discussed with the [appellant] at hearing, there is credible country information that indicates that the situation has improved in the FATA, including Kurram Agency. This includes the following information.

29    The Tribunal then turned to consider the following country information (at [55]):

(a)    a FATA Research Centre (FRC) report titled Annual Security Report 2014;

(b)    a report of the UN High Commissioner for Refugees (UNHCR) dated 30 June 2014, titled Post-return monitoring in areas of return Sholzan Tangi, Upper Kurram Agency-June 2014 (June 2014 UNHCR Report);

(c)    a FRC report titled Annual Security Report 2015;

(d)    a South Asia Terrorism Portal FATA Assessment 2015;

(e)    a UK Home Office report titled Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015;

(f)    a report of the Pakistani Institute for Peace Studies (PIPS) titled 2014, Pakistan Security Report; and

(g)    an Australian Department of Foreign Affairs and Trade (DFAT) report titled Thematic Report Shias in Pakistan, 15 January 2016 (the 2016 DFAT Report).

30    The appellant notes that the Tribunal made its decision on 18 July 2016. He contends that the Tribunal’s reliance upon these reports, largely dated in 2014 and 2015, shows that it fell into error by not relying on current country information.

31    The appellant notes that the Tribunal said (at [55]) that the 2014 FRC Annual Security Report states:

…Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014 and that a total of two incidents, one bomb blast and one target killing, were recorded during the reporting period, killing three people and injuring one. The bomb blast was a roadside bomb and the killing was of a tribal elder on his way to Sadda Bazaar from Central Kurram Agency.

And the Tribunal said (at [57]) that the 2015 FRC Annual Security Report states:

…the year marked a significant decline in terrorism-related incidents in the tribal areas of FATA. According to that report, militancy and counter militancy incidents were recorded from all the seven agencies of FATA in 2015, and the year remained turbulent with armed conflict between non state militant actors and law enforcement and security agents remaining at its peak. However, the report also noted that militant violence declined by 40% compared to 2014. It is also reported that out of the total casualties in FATA in 2015 almost 65% were militants. From a security point of view, the FRC reported that the most turbulent area during the outgoing quarter (of 2015) in FATA remained North Waziristan and Khyber Agencies where military operations against local militants is ongoing.

32    In contrast to those descriptions of the security situation in the FATA and the Kurram Agency the appellant notes that, on 22 April 2016, approximately three months before the Tribunal decision, the FRC had published a report for the first quarter of 2016, titled FATA Security Report First Quarter 2016 (the FRC 2016 First Quarterly Security Report). That report states:

The security situation in the Federally Administered Tribal Areas of Pakistan (FATA) remained turbulent during the first quarter - January to March 2016. An escalation in violence as a consequence of militant and counter militant activities has left deep impact on the local population inhabiting the region. With the exception of Orakzai Agency, almost every FATA agency witnessed a surge in militant activities. Compared to last quarter – October to December 2015 – militant activities have increased by 34 percent during the current quarter, i.e., January to March 2016.

33    The report also states:

Kurram is one of the most sensitive FATA Agency since it borders three Afghan provinces on its west. It has served as one of the key routes for militant movement in Afghanistan and is thought to be mainly used by the Haqqani Network as an operational base. Although military operations in the past have largely dismantled militant networks in the Agency, militants belonging to the TTP-South Waziristan chapter (also known as Shehryar Mahsud group) are operating in [a] few pockets of the Agency along the Afghan border. During the past three months of the current quarter, Shaheedano Dan area of lower Kurram and Qaimatey area of Upper Kurram remained disturbed.

Militants employed a variety of tactics for attacking their opponents in the Agency. On 7 January 2016, two civilians were injured in an IED planted by the TTP militants detonated in Shaheedona area of Lower Kurram. The TTP militants also destroyed a newly constructed military camp in Sharinao area of the Agency. Similarly, TTP militant based in Khost province of Afghanistan targeted security check-post in Qaimaty area of Upper Kurram, but no casualty was reported. Cross-border attacks remains the most effective tactics by the TTP militants to target security check post located near the Afghan border. It is feared that such attacks may escalate during the coming months.

34    The appellant also notes that the Tribunal relied upon the June 2014 UNHCR Report, which included a review in relation to displaced persons who had returned to a region in the Upper Kurram Agency. The Tribunal extracted the following parts of that report (at [55]):

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 CNIC. When entering to the area of origin, there are three checkpoints that the returnees have to cross before entering their area of origin. These checkpoints are guarded by the khassadar and Pakistani Army. It was shared that the military regularly checks identity documents of all those who pass through the checkpoints.

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

35    The Tribunal also said the following in relation to that report (at [56]):

It is clear from the UNHCR advice that the returnees were genuinely satisfied with the security situation in the area and felt safe and that UNHCR had concluded that general peace had been restored in Upper and Lower Kurram.

36    The appellant contrasts that with a later report by a United Nations agency named the UN Office of Coordination of Humanitarian Affairs, Pakistan, titled Inter-Cluster Assessment Mission to Kurram Agency, 20-21 September 2015 (the September 2015 UNOCHA Report), which states that:

..over 60 to 70 per cent of the population has returned spontaneously to most of the villages except for [the appellant’s home village] which is completely destroyed. … Some communities still feel the threat of being targeted by the opposite group and this is the reason that they do not stay overnight in their areas of origin but prefer to return to areas inhabited by people of their sect.

37    In relation to the appellant’s home village the report states:

[The appellant’s home village and another village] were highly populated areas of the Lower Kurram and consist of many small villages. The areas of [the appellant’s home village and another village] had a mixed populated of Shia and Sunni sects while all Sunni were displaced from the area and Shia population were still present in their villages. Before the sectarian conflict in 2008, both Shia and Sunni communities were living together in the mentioned villages.

Sunnis are avoiding returning to those villages due to the following reasons:

 •    Security situation is not stable (sectarian conflict).

 •    Some houses are completely destroyed. The returnees will be facing problems including, privacy for females and harsh weather in the winter season.

 •    Some schools are not functional in the area, particularly girls’ schools were destroyed. In Sunni areas, girls’ and boys’ schools are demolished.

 •    Livelihood opportunities are not available, due to non-availability of markets in some areas.

•    Agriculture, livestock and water channels for cultivable land are also disrupted.

38    I should note in this context that the appellant’s reliance on the FRC 2016 First Quarterly Report and the September 2015 UNOCHA Report is somewhat selective, and the relevant differences between the security situation outlined in those reports and the country information upon which the Tribunal relied is not as stark as the appellant contends.

39    For example, the appellant relies on part of the FRC 2016 First Quarterly Report which refers to a surge in militant activities by 34 percent across the FATA as a whole during the first quarter of 2016. But in relation to the Kurram Agency, where the appellant’s home village is located, the report states:

Kurram Agency witnessed a reduction in militant incidents from January-March 2016. A total of five militant and counter-militant incidents were recorded in the Agency, which is 44 percent less than that of the previous quarter (October-December 2015). The militant attacks in the Agency during the current quarter comprised of one cross-border attack, kidnapping and an IED attack on the civilians. One search operation in one incident of drone strike was also recorded during the outgoing quarter of 2016.

The report also notes that “simultaneous military operations in various parts of FATA have dismantled terrorist infrastructure to a large extent.”

40    In another example, while the September 2015 UNOCHA Report states that the security situation is “not stable”, it found the conditions “generally conducive” for the return of displaced persons to the Kurram Agency.

41    The Tribunal decision records (at [62]) that at the hearing the Tribunal discussed with the appellant the indications in the country information that there had been a decline in sectarian and generalised violence in the Kurram Agency. In his post-hearing submissions, the appellant contended that the improved security situation in the FATA was not “durable” and any improvement was “very basic” and “possibly temporary”. The Tribunal accepted that the security situation can “change and fluctuate” (at [63]).

42    On the basis that the improved security situation was not durable, the appellant argues that the Tribunal fell into jurisdictional error by relying on “superseded” and “outdated” country information, including by ignoring up-to-date country information from the same sources. The appellant contends that approach led the Tribunal to a materially misguided or incomplete assessment of the risks of serious or significant harm that the appellant would face should he return to Pakistan, and thereby, the Tribunal failed to discharge its statutory task.

43    For the reasons I explain I am not persuaded that the Tribunal fell into jurisdictional error as alleged.

44    Deciding whether a person has a well-founded fear of persecution involves making an assessment about the circumstances in the person’s country of nationality at the time the person is likely to be returned there. It is a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573. Credible and up-to-date country information will often be central in making such an assessment, particularly when the risk that the visa applicant may suffer serious or significant harm on return to that country is a changing one.

45    As part of the lawful performance of its task and discharge of its duties under the Act to review the delegate’s decision by reference to the situation in Pakistan as it stood at the time of the Tribunal’s review. To perform that task it was required to examine and consider any relevant country information which reflected the likely situation to which the appellant would be returned. It is common ground between the parties that, if in making an assessment as to whether a visa applicant faces a well-founded fear of persecution, a decision-maker relies upon outdated country information where more recent country information is within the decision-maker’s possession, a decision-maker may fall into jurisdictional error.

46    But the question in the appeal is one step removed from that. That is so because there is nothing to show that either the FRC 2016 First Quarterly Report or the September 2015 UNOCHA Report were actually before the Tribunal; that the Tribunal was aware of them, or that the Tribunal had constructive knowledge of them. The appellant’s argument relies upon establishing an obligation for the Tribunal to search out further country information where there is nothing to show that it had that information, was aware of it, or had constructive knowledge of it.

47    Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 concerned the grant of land rights to an Aboriginal group in the Northern Territory. A mining company, Peko-Wallsend, had made submissions to successive Ministers claiming that there was a significant uranium deposit which fell completely within the proposed land grant and that it would suffer detriment. Its submissions were made to predecessor Ministers, prior to a change in government, and although the submissions were held by the relevant Department, they were not provided to and considered by the Minister who ultimately made the decision. Mason J said (at 44):

The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.

His Honour went on to say (at 45):

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

(Emphasis added.)

48    The words “the most recent and accurate information that the Minister has to hand” and the requirement to take into account any material of which the Minister has “actual or constructive knowledge” are, in my view, important. The case concerned submissions which had been provided to previous Ministers and should have been put before the current Minister but were not. Mason J concluded that the Minister was required to have considered those submissions which were constructively before him.

49    SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938; (2008) 172 FCR 563 (Rares J) concerned whether the Tribunal had fallen into jurisdictional error by failing to consider the most up-to-date country information when deciding an application for a protection visa. The Tribunal had a current Department of Foreign Affairs and Trade report to which it referred in one context, but it only relied upon other older country information in reaching a finding as to the situation then pertaining in the applicant’s country of origin. Rares J noted (at [29]) that the principle identified in Peko-Wallsend requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes that duty. His Honour said (at [40]):

If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45.

(Emphasis added.)

50    His Honour referred to a requirement for the decision-maker to have “actual notice” of the relevant information, whereas Peko Wallsend referred to a requirement for “actual or constructive” notice, but the qualification remains. His Honour confirmed that (at [41]) when he said:

The trend of events throughout the world is one of constant change. A decision-maker charged with the important function of assessing whether Australia owes protection obligations to an applicant for a protection visa cannot ignore recent, up to date information actually before him or her and make a decision on earlier material which may be out of date.

51    Importantly, his Honour went on to say (at [42]):

… there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45.

(Emphasis in bold added.)

52    In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ) the Full Court considered whether in that case the Tribunal’s decision to refuse a protection visa was affected by jurisdictional error because of a failure to consider the most recent country information available. The Tribunal had before it pre and post-hearing submissions by the applicant in relation to how volatile and dangerous the situation would be “on the ground” in Zimbabwe for people who were or were perceived to be members of the MDC and therefore opponents of the Government, particularly when an anticipated election was announced, and in its aftermath. The Tribunal considered earlier country information in relation to the risk of harm faced by the visa applicant but its reasons disclosed no evaluation, as opposed to an acknowledgement of the existence of, the most current country information and material before it. The Full Court said (at [73]-[75]:

Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.

That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant’s circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

We agree, with respect, with the approach taken by Rares J in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at [36]-[42].

53    The Full Court’s approval of SZJTQ necessarily included approval of the finding that there is no unqualified obligation on a decision-maker to search out country information which it does not already have before it. The Full Court noted (at [76] and [77]) Mason J’s observations in Peko-Wallsend and said that a decision-maker’s consideration must be based on “the most recent and accurate information to hand”, and “the most current material available” (emphasis added). By “available” I take the Full Court to mean material of which the Tribunal has actual or constructive knowledge at the time it made that relevant decision.

54    That is not the position in the present case. Unlike in Peko-Wallsend, SZJTQ and MZYTS there is nothing to show that the Tribunal actually had the FRC 2016 First Quarterly Report or the September 2015 UNOCHA Report, that it was aware of those reports, or that it had constructive knowledge of those reports. In my view the authorities provide that the Tribunal was not under an unqualified obligation to search out those reports.

55    Further, it should be noted that:

(a)    the Tribunal relied upon the annual 2014 and 2015 FRC Security Reports in relation to the security situation in the FATA, which each covered a 12 month period in relation to a security situation which the Tribunal found (at [63]) “can change and fluctuate”. The FRC 2016 First Quarterly Report did not come into existence until 22 April 2016, approximately one and a half months after the hearing on 9 March 2016, after the appellant’s post-hearing submissions, and about three months before the Tribunal made its decision. It relates to only a three month period in a fluctuating situation, which limits its value; and

(b)    the September 2015 UNOCHA Report is not an update of the June 2014 UNHCR Report on which the Tribunal relied; being by a different United Nations secretariat, and it is not apt to describe it as ‘superseding” the earlier report. Although the appellant now ascribes significance to the September 2015 UNOCHA report, it was in existence prior to the hearing and the appellant made no reference to it in either his pre-hearing or post-hearing submissions to the Tribunal.

56    In my view this is not a case in which the Tribunal exclusively relied on old, out of date or superseded information in relation to whether there is a real chance that the appellant faced serious or significant harm on return to the FATA and the Kurram Agency. The Tribunal relied on a range of country information, and in particular the 2016 DFAT Report published in January 2016, to which it expressly gave weight (at [63]). Pursuant to Ministerial Direction No 56 of 21 June 2013, made under s 499(1) of the Act, the Tribunal was required to take that report into account: see BMP15 v Minister for Immigration [2018] FCA 1291 at [33] (O’Callaghan J).

57    The 2016 DFAT Report stated that there “is a low level of sectarian violence overall in the FATA” and “a low level of generalised violence” in the Kurram Agency. The Tribunal somewhat inaccurately characterised that (at [63]) as an assessment that there is “a low risk of sectarian violence and low risk of generalised violence” in Kurram Agency. In relation to this report the Tribunal said (at [61]):

Significantly, this report records a change from the previous report of April 2015 in DFAT’s assessment of both the risk of sectarian violence in the FATA (from moderate to low) and the level of generalised violence in the FATA (from high to variable throughout the FATA but low in Kurram Agency). The Tribunal has given consideration to the fact that the Tribunal decision of 25 May 2015 referred to by the applicant’s representative drew on the findings of the April 2015 report but did not have the benefit of the subsequent significantly altered assessment contained in the most recent DFAT report of 15 January 2016.

Given its date I do not accept that it is appropriate to characterise the 2016 DFAT Report as old, outdated or superseded, and the Tribunal gave this report weight.

58    The Tribunal went on to say (at [63]):

The Tribunal has had regard to the applicant’s concerns regarding the durability of the improved security situation as well as the representative's submissions relevant to this issue, and the applicants [sic] concerns that the Pakistan government is doing nothing to get the Taliban out of Kurram Agency, seeks to conceal civilian casualties, and that his village is in a particularly dangerous area. The Tribunal finds that the weight of the country information discussed above does not support a conclusion that the Pakistan government has done nothing or is doing nothing to get the Taliban out of Kurram Agency. The Tribunal also finds the reporting on casualties from sectarian and generalised violence in Pakistan, including the reporting of DFAT, is drawn from a variety of independent sources, both government and non-government, many of which are independent of the Pakistan government. The Tribunal considers that the totality of these sources provides an accurate picture of the security situation and overall level of casualties. The Tribunal also gives weight to the fact that DFAT’s assessment that there is a low risk of sectarian violence and low risk of generalised violence applies to Kurram Agency as a whole, including the area of Kurram Agency in which the applicant's home village of [redacted] is located. The Tribunal acknowledges that the situation can change and fluctuate, as indicated in the FRC's annual security report for 2015 cited above for example, and that there is an element of vulnerability in the government security measures, as illustrated by the December 2015 attack in Parachinar.

(Emphasis added.)

59    The Tribunal accepted (at [64]) that there continue to be incidents of sectarian violence in the FATA and in the Kurram Agency, but said (at [65]) that it:

…accepts DFAT's assessment regarding the risk of generalised violence in the FATA and accepts that there is some level of risk to the applicant in the context of generalised violence. However, the Tribunal finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm for reasons of his Shia religion, Turi ethnicity, imputed political opinion of opposition to the TTP and/or other extremist Sunni groups (because of his Shia religion, Turi ethnicity, his origins from Parachinar and his extended presence in Australia (a western country with a Christian heritage) as an asylum seeker), and/or because he is seen to be a member of a particular social group comprising Turi Shias from Kurram Agency, or any other Convention reasons.

60    It was appropriate for the Tribunal to give weight to the 2016 DFAT Report, as the most recent report before it and having regard to Ministerial Direction No 56, and for it to rely on the suite of other country information to which it referred. Given the fluctuating security situation in the FATA and the Kurram Agency it would have been preferable for the Tribunal to check that it was relying on the most current information available, but I do not consider that by not searching out the FRC 2016 First Quarterly Report and the September 2015 UNOCHA Report, and instead relying upon other country information including the 2016 DFAT Report, the Tribunal fell into jurisdictional error as alleged.

Ground two

61    Ground two of the appeal alleges as follows:

The Tribunal found that the Appellant did not face a real chance or risk of serious or significant harm from sectarian or generalised violence in his home region. In so finding, the Tribunal misapplied the ‘real chance’ test and the ‘real risk’ test, and/or misconstrued the claims and evidence before it.

Particulars

The Tribunal accepted the Appellant’s factual claims, and accepted that there was ongoing violence in his home region, and that he faced some risk of harm (see, e.g., [41]-[68] of its reasons). However, it did not accept that the Appellant faced a real chance or risk of harm from violence in his home region. It thereby misapplied the ‘real chance’ test and the ‘real risk’ test. Further, at [63] of its reasons, it characterised a DFAT report as indicating that there was a ‘low risk’ of sectarian and generalised violence in the Appellant’s home region. In fact, the report indicated that there was a low level of actual violence in the region. Accordingly, its conclusion relied in part on a misconstruction of the evidence.

62    The appellant submits that the application of orthodox principles in relation to whether he has a well-founded fear of persecution for a Convention reason if he returns to Pakistan is sufficient to expose jurisdictional error in the Tribunal’s approach. He notes that the Tribunal accepted the appellant’s account; that there was ongoing sectarian and generalised violence in the appellant’s home region of the Kurram Agency (at [47], [64]); that Shia Muslims were at particular risk from that violence; that the security situation in the FATA can “change and fluctuate” and that there is “an element of vulnerability” in the government security measures (at [63]), and in context of the generalised violence in the FATA that the appellant faced “some level of risk” (at [65]). The appellant says that the Tribunal erred in concluding (at [66]) that, notwithstanding its findings, the risk the appellant would face in return is “remote” and the appellant did not face a real chance of suffering serious or significant harm on return to Pakistan.

63    The appellant submits that that there are number of problems with the Tribunal’s approach. First, that the “real chance” test is not relative and the fact that the chance of harm to the appellant in a particular place may be lower than it used to be, lower than it is in other places, or lower than it is for other people in that place, does not demonstrate that the appellant does not face a real chance of harm: see CGA15 at [23]. He argues that the Tribunal’s assessment that the sectarian and generalised violence in the FATA and in Kurram Agency had declined from high levels to a significantly reduced level, but which was nevertheless ongoing, did not license its conclusion that there was no real chance or real risk of harm to the appellant.

64    Second, the appellant argues that the authorities provide that a low chance may be a “real chance”, and even if the assessment in the January 2016 DFAT Report had been, as the Tribunal said, that “there is a low risk of sectarian violence and a low risk of generalised violence in Kurram Agency” that did not mean that there was not a real chance or risk of harm to the appellant. That was not DFAT’s assessment. As the Tribunal extracted (at [60]), the 2016 DFAT Report said that there is a “low level of sectarian violence overall in the FATA” and a “low level of generalised violence” in the Kurram Agency (emphasis added). The appellant submits that the Tribunal’s reasons show that it did not properly apply the “real chance” test. He contends that there was plainly more than a “low risk” of sectarian or generalised violence, indeed there was more even than a very high risk as there was in fact actual sectarian and generalised violence occurring at low levels in the FATA. On that basis the appellant argues that the Tribunal’s conclusion rests on a misunderstanding of the country information before it and a misapplication of the “real chance” test.

65    There is no dispute between the parties as to the applicable principles in deciding whether a decision-maker misunderstood or misapplied the test for whether a person has a well-founded fear of persecution. The questions to be determined relate to how the Tribunal went about its task and whether it fell into jurisdictional error.

66    Nevertheless it is appropriate to briefly set out the applicable principles to explain my conclusion that I am not satisfied that the Tribunal fell into error as alleged.

67    To satisfy the refugee criterion under s 36(2)(a) of the Act the appellant is required to show that on return to Pakistan he has a well-founded fear of persecution for a Convention reason. The appellant’s fear of persecution will be objectively “well-founded” if there is a “real chance” that he will suffer the claimed persecution in the reasonably foreseeable future if returned to Pakistan. A real chance of persecution excludes a chance that is merely theoretical, remote, far-fetched or insubstantial. It is a prospect that is “a substantial, as distinct from a remote chance, of persecution” and there may be a “real chance” of persecution even where the chance of persecution occurring is less than 50%. It is enough if persecution is a reasonable or serious possibility, and even where there is, for example, “only a 10% chance of persecution”: Chan at 389 (Mason CJ), 397-398 (Dawson J), 407 (Toohey J) and 429 (McHugh J). Although the test necessarily involves some speculation as to whether or not an event might or might not occur in the future it does not extend to “conjecture or surmise”: Guo at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). The “real risk” threshold that applies to complementary protection under s 36(2)(aa) is the same as the “real chance” threshold: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (Lander and Gordon JJ at [245]-[246], Besanko and Jagot JJ at [297], and Flick J agreeing).

68    As Mortimer J explained in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60], approved in AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168 (Besanko, Middleton and Mortimer JJ) at [49]:

The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

(Emphasis added.)

69    In relation to the applicable principles in deciding whether a decision-maker has misunderstood or misapplied the test for deciding whether a person has a well-founded fear of persecution the Full Court in CGA15 said at [25]-[26]:

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

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

70    In deciding whether, on return to Pakistan, the appellant faced a real chance of serious or significant harm, the Tribunal considered a variety of country information (set out at [29] above) regarding the security situation in the FATA and in the Kurram Agency (at [50]-[66]). Based on that country information, the Tribunal found (at [66]) that there was only a remote chance that the appellant would be seriously harmed by the Taliban or other anti-Shia extremist groups, and it found that he did not face a real chance of serious harm for a Convention reason on return to the Kurram Agency now or in the reasonably foreseeable future.

71    It is plain from the Tribunal’s reasons that it was aware that there was actual sectarian and generalised violence in the FATA and in the Kurram Agency, albeit at low levels. For example, the Tribunal accepted (at [64]) that “there continue to be incidents of sectarian violence in FATA and in Kurram Agency”. It said that the December 2015 Attack was evidence of that. Similarly, the Tribunal accepted (at [66]) that “there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured.”

72    However, having regard to the view it took of all the country information, the Tribunal said:

(a)    (at [63]) that it gave:

…weight to the fact that DFAT’s assessment that there is a low risk of sectarian violence and low risk of generalised violence applies to Kurram Agency as a whole…;

It also said that:

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

(Emphasis added.)

(b)    (at [64]) that notwithstanding the December 2015 Attack:

…the weight of the evidence indicates that there has been a significant and sustained improvement in the security situation in the Kurram Agency since 2013/14.

It said that it would be “mere speculation” to find that the December 2015 Attack meant that there had been:

…such a deterioration in the security situation in Parachinar or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe such as the [appellant] living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.

The Tribunal concluded that there was not more than a remote chance of that occurring;

(c)    (at [65]) that it accepts:

DFAT’s assessment regarding the risk of generalised violence in the FATA and accepts that there is some level of risk to the [appellant] in the context of generalised violence. However, the Tribunal finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm…

(d)    (at [66]) that it:

…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, however, that overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards.

It said that the appellant had never been:

…specifically targeted or harmed by the Taliban or other Sunni extremists in the past, nor have any of his family members since 2008 despite them remaining in the area. For these reasons when combined, the Tribunal finds remote the chance the [appellant] would be seriously harmed by the Taliban, other Sunni extremist groups, former Sunni neighbours or anyone else [for the Convention reasons claimed by the appellant].

On that basis the Tribunal found that the appellant did not face a real chance of serious harm for a Convention reason on return to Kurram Agency now or in the reasonably foreseeable future.

73    On a fair reading of the Tribunal’s reasons I do not consider it applied a relative test by, for example, concluding that the appellant faced less risk in the Kurram Agency relative to some other area. In my view the reasons show that the Tribunal concluded that the risk of serious or significant harm the appellant faced in the FATA and in the Kurram Agency in particular was objectively low, as distinct from relatively low.

74    In essence the appellant argues that the Tribunal must have misunderstood or misapplied the “real chance” test because it reached the conclusion that the risk of the appellant suffering harm was “remote”, notwithstanding its acceptance that there was some risk. On a fair reading of its reasons the Tribunal considered that there was some sectarian and generalised violence occurring in the FATA and in the Kurram Agency, and some level of risk of serious or significant harm, but that risk was remote and did not rise to the level of a “real chance”.

75    Whether or not the risk of harm likely to be faced by the appellant on return to Pakistan rises above the level of “remote” is a question of fact about which reasonable minds may differ. In essence, the appellant asks the Court to substitute its view for that of the Tribunal as to the risk of his suffering serious or significant harm on return to the FATA, when the Court has no power to undertake a merits review. The Tribunal’s conclusion that the appellant does not face a real chance of serious or significant harm on return to Pakistan was open to it and I am not persuaded that it misapplied the test. The finding does not in my view reveal jurisdictional error.

Ground three

76    Ground three of the appeal alleges as follows:

The Tribunal misconstrued, and so constructively failed to consider a letter of support from Mr Sajid Hussain Turi, a member of the National Assembly of Pakistan.

Particulars

The Tribunal at [47] of its reasons had regard to a letter from Mr Sajid Hussain Turi (at AB 75) which indicated that the Appellant’s family had received threats from the Taliban. However, it misunderstood the letter as referring to threats received by the Appellant after he protested as a student. It therefore failed to consider the distinct claim that his family had been threatened by the Taliban.

77    It will be recalled that the appellant claimed that after being involved in protests in Peshawar and Islamabad in 2010, he and other Turi students received generic threats from the Taliban by letter and by telephone. The Tribunal noted the appellant’s claim in this regard as follows (at [47]):

He stated that he received a threat letter from the Taliban and threatening text messages, but indicated that these were generic in nature, and that the letters were directed at all the Turi students at his University in Peshawar, and that some students, including him, also received text messages which stated that all the Turi and Shia people would not be safe, no matter where they went in Peshawar or Pakistan in general.

78    In support of his claim for a protection visa the appellant relied on a letter from a member of the National Assembly of Pakistan (the Support Letter) which said in part:

So the family of [the appellant’s father] is on the hit list of Taliban terrorist, this family was threatened by Taliban terrorists several times telephonically and by messages, either to kill or kidnap the [appellant] the elder son of [the appellant’s father] because of their activities against terrorism.

79    The Tribunal referred to the Support Letter as follows (at [47]:

While also giving consideration to the letter provided by the [appellant] from Sajid Hussain Turi, member of the National Assembly of Pakistan, which asserts that the [appellant] and his family is on the Taliban ‘hit list’ because of their activities against terrorism, the Tribunal concludes that the threat letter and text messages were generic threats intended to intimidate the Turi Shia students living in Peshawar as a whole and that they do not indicate that the [appellant] has a profile that would make him a specific target for the Taliban above other Turi Shias from Kurram Agency, or that the [appellant] is on a Taliban ‘hit list’.

80    The appellant submits that the Tribunal misunderstood the reference in the Support Letter to the threats received by his family as a reference to the messages the appellant himself received when he returned from protesting with other students. He argues that, in fact, he made two distinct claims:

(a)    that following the protests he and other students received threats from the Taliban by letter and text message; and

(b)    that his family had also received threats that he would be kidnapped or killed.

The appellant contends that the Support Letter refers to the threats made to the appellant’s family by the Taliban, and argues that by misconstruing it the Tribunal failed to consider this aspect of the appellant’s claims. He submits that the Support Letter added weight to the appellant’s claim that his family had attracted adverse interest from the Taliban and that by conflating the two claims of the Tribunal failed to consider this integer of his claims, being the threats made to his family.

81    I can see little merit in this ground of appeal.

82    In my view the Tribunal accurately set out the information contained within the Support Letter. The letter said that the appellant and his family were on a Taliban hit list because of their activities against terrorism, and that the Taliban had, by telephone and messages, threatened to kidnap or kill the appellant. However, contrary to the Minister’s contentions, I consider the Tribunal misunderstood the Support Letter as referring to the letters and text messages that had been sent to the appellant and other Turi students following the protests in 2010, rather than to threatening messages sent to the appellant’s family.

83    That the Tribunal misconstrued the Support Letter is readily understandable when at no point did the appellant say that he made two distinct claims, one being that he had personally received threatening letters and texts and the other that his family had received threats to kidnap or kill him. The materials show that in his visa application, his statutory declaration dated 12 December 2012, his statutory declaration dated 2 March 2016 or in his pre-hearing and post-hearing submissions, the appellant did not ever say that on several occasions his family had received threats from the Taliban to kidnap or kill him. His statutory declaration dated 12 December 2012, in which he made the claim that he received threats in writing and by telephone from the Taliban, referred only to threats made to him and other Turi students at the University.

84    The Minister submits that, if the Tribunal erred in misunderstanding the Support Letter, then that misunderstanding was an error within jurisdiction. I accept that submission.

85    Recently, in CRU18 v Minister for Home Affairs [2020] FCAFC 129 at [29]-[31] (Wigney, Jackson and Snaden JJ) the Full Court said:

An erroneous finding of fact will typically not suffice, in and of itself, to stigmatise a discretionary administrative decision as the product of jurisdictional error: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167, [9] (Heerey, Nicholson and Selway JJ). In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (Black CJ, French and Selway JJ), this court observed (at 16 [53]) that:

…mere factual error by [a decision maker] will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision…

In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548-549 [35]-[36]):

A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ; hereafter, “SZMDS”)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).

86    That is not to say that an error of fact on the way to the ultimate finding cannot amount to jurisdictional error, plainly it can: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ). If a decision-maker makes an error of fact in misunderstanding or misconstruing a claim advanced by a visa applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued that may constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] (Black CJ, French and Selway JJ); Minister for Immigration and Citizenship & Another v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [113] (Robertson J). But the fundamental question must be the importance of the error to the exercise of the Tribunal’s statutory function and thus its seriousness: SZRKT at [111].

87    In the present case the Tribunal’s error in misunderstanding the Support Letter was far from important having regard to the way the appellant advanced his claims and the basis upon which the application was decided by the Tribunal. The appellant was represented before the Tribunal, and at no point did he advance a claim that his family had on several occasions received threats from the Taliban to kidnap or kill him. Other than the Support Letter itself there is nothing to show that he claimed that his family had received such threats, and to the extent that such a claim was made he gave it no prominence whatsoever.

88    Given the basis upon which the appellant advanced his claim to have a well-founded fear of persecution if returned to Pakistan (which was not based in any assertion of threats made to his family that he would be kidnapped or killed), and the basis upon which the Tribunal refused his visa application (as earlier discussed), the Tribunal’s misunderstanding of the Support Letter does not rise anywhere near the level of jurisdictional error. Looked at another way, the Tribunal’s misunderstanding cannot be said to give rise to a realistic possibility that the Tribunal’s decision could have been different, and does not bespeak jurisdictional error: see Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2]-[4] and [45]-[50] (Bell, Gageler and Keane JJ).

Ground four

89    Ground four of the appeal alleges:

The Tribunal failed to consider the Appellant’s claim that he faced a chance or risk of harm arising from the need to travel for work and other reasons.

Particulars

The Appellant’s account of his history included several instances where he, his family, and members of his community were harmed on the roads between settled areas; and his representatives claimed that he would need to travel and would face harm as a result (AB 192). Further, country information before the Tribunal corroborated the Appellant’s claim that there was a heightened prospect of harm on the roads between settled areas (AB 232-3). However, the Tribunal failed to consider this claim.

90    The appellant notes that his claim to fear harm on return to Pakistan was in part based in several instances where he, others in his family, and others in the community, suffered harm at the hands of anti-Shia extremists on the roads between towns in and around the FATA. It is uncontentious that the appellant claimed that:

(a)    in 2008 the appellant’s father was unable to seek medical treatment because of roadblocks by anti-Shia extremists around Parachinar, and he died of a heart attack;

(b)    there were 80 Shia students from Kurram Agency studying in Peshawar and they could not go home because of the roadblocks;

(c)    in 2009 a bus that the appellant was travelling on was attacked between Quetta and Peshawar by suspected Taliban members and a passenger was killed; and

(d)    in July 2010, the appellant joined a convoy leaving Peshawar in an attempt to return to his family. A convoy going in the opposite direction was ambushed by the Taliban and around 18 people were killed. As a result the appellant was forced to abandon his attempted return.

91    The appellant further argues that his post-hearing submissions emphasised “the dangers of travelling outside” areas where Shia Muslims congregated, which he “would undoubtedly have to [do] for work and general duties”. He also notes that the 2016 DFAT Report referred to heightened risks arising from travel. Under the heading “Travel Security” the report said:

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

(Emphasis added.)

92    The appellant submits that the Tribunal gave no consideration to this integer of his claim to have a well-founded fear of persecution on return to Pakistan and it therefore fell into jurisdictional error.

93    The Minister rejects these contentions. He relies on the observation of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] where his Honour said:

Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

94    The Minister submits that it is not at all clear why the Tribunal was required to consider a claim that the appellant may suffer harm when travelling for work or other reasons as it formed no part of the appellant’s claim before the Tribunal. The Minister contends that the appellant’s post-hearing submissions do not assist his argument as they concerned the issue of “internal relocation”. They concerned the appellant's claim that if he was required to relocate away from the FATA into a large urban city in Pakistan, as the delegate considered to be appropriate, he might have to travel outside areas where Shia Muslims usually congregated for work and general duties. The Minister argues that the appellant's submission was not directed to any need for him to travel for work or other reasons within the FATA and any associated dangers associated with anti-Shia extremists.

95    On the Minister’s argument the appellant failed to show that his claim to fear harm on return to Pakistan included, as an essential integer, a claim to fear harm from anti-Shia militants while travelling on the roads. The Minister argues that no such claim was expressly articulated and that such a claim does not “clearly emerge” from the materials before the Tribunal.

96    The Minister submits that the material before the Tribunal only went to instances of serious or significant harm suffered by the appellant’s family and other Shias when travelling on the roads in the past. The Minister argues that while the Tribunal accepted the appellant’s claims that roads in and around the FATA were blockaded and that Shias were attacked or killed by anti-Shia militants when travelling on roads into or through the FATA in the past, at no stage did the appellant refer to a future need or intention to travel for work or other reasons. On the Minister's argument the Tribunal did not need to consider any such claim. The Minister further submits that the appellant’s contention that any such claim “clearly emerges” from the materials is substantially weakened by the fact that neither the appellant, nor the counsel and solicitors who represented him, identified the claim in the Court below.

97    The Tribunal’s review process requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J (as his Honour then was) with whom Spender J agreed). The Tribunal is, however, only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    where they clearly emerge from the materials:

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]; NABE at [55] and [58]).

98    The appellant did not advance a substantial, clearly articulated argument that on return to Pakistan he faced a real chance of suffering serious or significant harm when travelling for work or other reasons within the FATA. His submissions regarding risks when travelling on the roads were, as the Minister submits, addressed to the dangers which he claimed were likely to arise if he were required to relocate to a large urban centre such as Peshawar, Karachi, Islamabad-Rawalpindi or Karachi, as the delegate found. He claimed that in such large urban centres the minorities tend to congregate in one or more areas in “ethnic clusters”, that it was dangerous to travel outside those areas, and that he would “undoubtedly” have to undertake such travel for work and general duties.

99    I am though satisfied that an essential integer of the appellant’s claim to fear harm on return to Pakistan was a claim to fear harm at the hands of ant-Shia militants when travelling on the roads in the FATA. In my view such a claim clearly emerged from the materials before the Tribunal.

100    In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ) the Full Court adopted the following principles, collected by Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]-[68], as to when a claim can be said to “clearly emerge” from the materials. Their Honours said:

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37. While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38. Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

101    First, I consider such a claim clearly emerged because to support his claim to fear harm on return to Pakistan the appellant advanced a number of examples of family members and other Shias being killed or injured by anti-Shia militants when travelling on the roads in and around the FATA. He claimed (and the Tribunal accepted) that his cousin was shot and killed by the Taliban in 2008 when he was on the road travelling away from his village, that in 2009 he was caught up in an attack while travelling on a bus from Quetta to Peshawar, that he was forced to abandon his attempt to leave Peshawar in a convoy when a convoy coming in the other direction was attacked on the road (at [44]), and that his father was unable to get medical treatment and died when the Taliban blocked the roads. The Tribunal noted (at [62]) that it discussed with the appellant the indications that there had been a decline in sectarian and generalised violence in the Kurram Agency, and its reasons record that the appellant responded by stating that the Taliban moved away in response to military operations by the Pakistani Army, but Taliban commanders remained and were “allowed to move on the roads”.

102    Second, in my view the asserted claim is based in established facts. The Tribunal accepted the appellant’s claims that his family members and other Shias had been killed or injured on the roads in and around the FATA. It also accepted country information to the effect that the roads between Peshawar and Parachinar were blocked by the Taliban (at [45]). The 2016 DFAT Report, to which the Tribunal gave weight in other contexts, expressly said that many roads in the FATA can be dangerous and that travellers are at greater risk of criminal or militant violence because they are further away from security forces.

103    Third, I can see little force in the Minister’s contention that the asserted claim does not clearly emerge from the materials because the incidents that the Tribunal accepted had occurred were in the past, and the appellant did not refer to a future need or intention to travel for work or other reasons. Assessing whether the appellant has a well-founded fear of persecution is a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present and what has happened in the past. The past incidents of harm on the roads, which the Tribunal accepted had occurred, were relevant to understanding whether there was a real chance of similar events in the reasonably foreseeable future.

104    Nor do I consider it was necessary for the appellant to expressly state that, on return to the FATA, he would either need to or would reasonably want to travel by road in or around the FATA. The appellant is a university graduate and there are numerous reasons why he may reasonably wish to travel outside of one village, including work, the pursuit of career opportunities, for medical treatment, to find and marry a wife, or even just to see friends in Peshawar. There was no basis for the Tribunal to base its finding in relation to whether the appellant faced a real chance of harm on an assumption that he would forever stay in one town in the FATA, and never travel by road to anywhere else, and nothing to show that it did so.

105    It is uncontentious that an administrative decision-maker may fall into error where he or she fails to consider, overlooks or otherwise fails to engage with a material or significant integer of a claim. There is little or nothing to show that the Tribunal considered whether the appellant faced a real chance of suffering serious or significant harm when travelling on the roads in the FATA. Notwithstanding the appellant’s claim that in response to military operations by the Pakistani Army the Taliban moved away, but Taliban commanders remained and were “allowed to move on the roads”, the Tribunal did not specifically address the claim that the appellant feared harm when travelling on the roads in the FATA. The Tribunal had the 2016 DFAT Report which said that many roads in the FATA can be dangerous and that travellers are at greater risk of criminal or militant violence because they are further away from security forces, yet it did not refer to that passage in the report or specifically address those risks.

106    It might be argued that the appellant’s claim to fear harm when travelling on the roads in the FATA is subsumed by the Tribunal’s finding that “a level of security” and “general peace” had been restored to the FATA and the Kurram Agency to the extent that there was not a real chance that the appellant would suffer serious or significant harm from the Taliban or other anti-Shia militants on return (at [63]). That was not though the thrust of the Minister's submissions, which focussed on the arguments that the appellant did not articulate any such claim and that no such claim clearly emerged from the materials before the Tribunal. In any event, the appellant’s claim to fear harm when travelling by road in the FATA was not necessarily subsumed in the broader finding, and the Tribunal was obliged to engage in an active intellectual process and consider that claim. That was particularly so when the most recent country information, the 2016 DFAT Report, specifically said that “many” roads in the FATA can be “dangerous”, which must be taken to include a reference to the dangers for Shias of being robbed, injured or killed by anti-Shia militants when travelling on roads in that region.

107    I am also satisfied that the Tribunal’s error in failing to consider the appellant’s claim to fear suffering harm when travelling on the roads in the FATA was material, in the sense described in Hossain and SZMTA. Particularly having regard to the 2016 DFAT Report, there is a realistic possibility that the Tribunal could have reached a different decision as to whether he had a well-founded fear of persecution on return to Pakistan if it had considered this integer of his claim. The Tribunal’s error is therefore jurisdictional.

Conclusion

108    I have made orders to allow the appeal, to quash the decision of the Tribunal and to remit the appellant’s application for a visa to the Tribunal for re-determination according to law. I have ordered the Minister to pay the appellant’s costs of the appeal, but have left undisturbed the order for costs made against the appellant in the Federal Circuit Court. That costs order should stand as the grounds for that decision were not challenged on appeal.

Associate:

Dated:    18 December 2020