Federal Court of Australia

AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 912

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to amend the notice of appeal to delete ground 1 and to add proposed ground 3 as provided in his amended notice of appeal filed on 26 November 2021.

2.    The appeal is allowed.

3.    The orders of the Federal Circuit Court made on 15 April 2021 are set aside and in their place the following orders are made:

(a)    The decision of the Immigration Assessment Authority dated 14 August 2018 is set aside.

(b)    The matter is remitted to the Authority for determination according to law.

(c)    There is no order as to the costs of the Federal Circuit Court proceeding.

4.    The first respondent must pay the appellant's costs of the appeal, to be assessed on a lump sum basis.

5.    On or before 4.00 pm AWST on 23 August 2022, the parties must file any agreed proposed minute of order fixing a lump sum in relation to the appellant's costs.

6.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the appellant's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The appellant is a national of Pakistan. He is of Pashtun ethnicity and Sunni Muslim religion. He arrived in Australia in 2013, and in 2017 he applied for a protection visa. In 2018 a delegate of the first respondent (Minister) refused to grant that visa. The decision was referred to the second respondent, the Immigration Assessment Authority, under the fast track review provisions of Part 7AA of the Migration Act 1958 (Cth) (Act). The Authority affirmed the decision not to grant a protection visa. The appellant applied for judicial review to what was then the Federal Circuit Court of Australia. That Court dismissed the application. He now appeals to this Court.

2    The appellant was not legally represented before the Federal Circuit Court and his grounds of review were entirely generic. The position was the same when he commenced this appeal. However he has since obtained legal representation and seeks leave to substitute two grounds of appeal which impugn the Authority's approach to one of his protection claims.

3    The claim was that a militant group, the Taliban, had targeted the appellant, a shopkeeper, because the appellant had disobeyed their directive not to trade with Shia people. The appellant claimed that the Taliban would target him again if he returned to Pakistan. The main proposed ground of appeal is to the effect that the Authority fell into jurisdictional error because, while it said that it could not preclude the possibility that the business was targeted for that reason and described it as a 'less persuasive' reason, it 'failed to engage in the reasonable conjecture required by the real chance test'.

4    Although the appellant did not agitate that as a ground of review before the primary judge, his counsel sought to characterise it as a refinement of issues that his Honour had considered in any event. As explained below I do not accept that, so the application for leave to amend the notice of appeal must be approached on the basis that the proposed grounds are new. However I heard full argument on the merits of the proposed grounds of appeal. For the following reasons, the appellant will be permitted to advance one of the new grounds and the appeal will be allowed on that ground.

The Immigration Assessment Authority's decision

5    It is convenient to start with a description of the Authority's decision. As is often the case, the outcome here depends on a proper construction of the decision as a whole.

6    The Authority summarised the appellant's protection claims, in so far as they remain relevant, as follows (paragraph 13, redacted to remove potentially identifying details):

•    He is of Pashtun ethnicity … He is a Sunni Muslim. … His parents are deceased and he has one adult brother.

•    He ran a grocery store in XXXXXX market in XXXXXX, a town near his village. His brother assisted him with stock management and finances in the store.

•    The Taliban discovered he was selling groceries to Shias and ordered him to cease this activity. He continued, but more discretely [sic], delivering goods at night time to his Shia customers through an intermediary. This continued for a number of years.

•    In 2013 his cousin discovered the applicant's business dealings with Shia customers and reported him to the Taliban. His cousin holds a grudge against the applicant due to his resentment of the applicant's comparative success as a business owner.

•    The Taliban came to his shop to look for him, however the shop was closed and the applicant was at his home in XXXXXX. The applicant's brother was found by the Taliban in or nearby their shop and they abducted him after mistaking him for the applicant. The Taliban tortured him before realising they had the wrong person.

•    Two days later the Taliban rang the applicant to advise him that they wanted to him attend the 'Taliban centre' in Parachinar. The applicant knew that meeting with the Taliban in these circumstances would result in his certain death and decided to immediately flee Pakistan.

•    The Taliban released his brother a number of weeks later after the family paid 800,000 Pakistani Rupiah as a ransom.

•    The applicant fears that he will be killed by the Taliban or other Sunni extremists upon return to XXXXXX, or any other part of Pakistan on account of his past assistance to Shia people, and his profile as a person who opposes Taliban ideology.

•    The applicant's profile with the Taliban is heightened by his cousin's ongoing enmity towards him and his family. His cousin is an active Taliban associate, and will inform the Taliban if he were to return to his village, or any part of Pakistan …

7    The Authority accepted that the appellant was a citizen of Pakistan and also accepted the other basic biographical details he gave. It accepted that he and his brother operated a grocery store in the relevant town in Pakistan for approximately 10 years before the appellant left Pakistan in 2013. It also accepted that they sold goods to Shia customers from the town and surrounding areas, and that the grocery store is now closed.

8    The Authority also accepted that the appellant's brother was kidnapped by the Taliban in 2013 and that the family paid a ransom to release him. The Authority said, however, that it had carefully considered the evidence put forward by the appellant in relation to the events in 2013 that he said directly led to his departure from Pakistan, and found that there were key aspects of his evidence that were 'significantly inconsistent and so lacking in detail that I consider them to have been contrived for the purpose of strengthening his application' (paragraph 18).

9    The Authority then turned to make factual findings, first, about the appellant's claim that his cousin would seek to make him a target of the Taliban if he were to return to Pakistan. The Authority considered that the appellant had 'exaggerated the nature and depth of the enmity held by his cousin towards him and his family' (paragraph 20). That was based on what the Authority considered was a lack of detail in the appellant's accounts of the feud, inconsistencies in his evidence about it, and the fact that his family appeared to have stayed on in the same village in Pakistan without experiencing threats or harm from the cousin, his family or extremists including the Taliban. The Authority also did not accept that the enmity would have lasted for the five years during which (at the time of the Authority's decision) the appellant had been outside Pakistan. Clearly, then, the finding about contrivance for the purpose of strengthening the application extended at least to this aspect of the appellant’s claims.

10    The Authority then turned to make factual findings about the claim that are central to the proposed grounds of appeal. Its reasoning was as follows:

(1)    The Authority accepted that the appellant and his brother operated a grocery store in the town, which was in a majority Shia district. It accepted that they traded with Shia people.

(2)    It appeared that 'the brother's contributions in managing and recording stock and customer accounts were not insignificant, especially considering that the applicant has not received any formal education, and is not literate in any language' (paragraph 24).

(3)    On that basis, the Authority found that 'the brother's role in the grocery store … would have been visible to the applicant's cousin, customers, and the wider public' (paragraph 24). The Authority noted that, according to the appellant, the Taliban had located the brother in or around the grocery store.

(4)    The significance the Authority placed on those details appeared to stem from the appellant's claims that the Taliban had kidnapped the brother, mistaking him for the appellant, and had released the brother after realising their mistake. The appellant seemed to enlist this in support of a claim that if he had been the one whom the Taliban apprehended, they would have killed him as the owner of the business for disobeying their order not to trade with Shias. The Authority summarised and dismissed that aspect of the claim as follows (paragraph 25):

In this context [i.e. the context described at (2) and (3) above] I do not accept that the Taliban would differentiate between the applicant and his brother if their primary reason for targeting the owner of the grocery store was to punish the person(s) operating a business that disobeyed their direction to cease trading with Shias. The applicant has argued that the Taliban did not kill his brother as they perceived that it was only the applicant who was responsible for the 'crime'. The applicant declared that, had they kidnapped him, he would certainly have been killed. Considering the brother's certain visibility to the Taliban as someone directly involved in operating the grocery store I find it implausible that the Taliban would have differentiated between the two men in this way. I do not accept the applicant's contention that his own profile with the Taliban as a person who sold goods to Shia in breach of their direction was unrelated to his brother.

(5)    Instead, the Authority found 'that the primary reason the Taliban kidnapped the applicant's brother in 2013 was for financial gain'. It considered sources of country information that all cited kidnap and extortion as a key source of financing for militant groups. The appellant's brother was released after paying a ransom. The brother has since stayed in his and the appellant's home village and, while there was no evidence that he had continued to trade with or associate with Shia people, there was no information that he has been targeted as a person who opposes the Taliban.

(6)    The Authority's decision then contains a paragraph (paragraph 27) that was the focus of the appellant's submissions:

According to the applicant's evidence the Taliban were intent on killing persons opposing their direction to cease trading with Shias to make an example of them. While I cannot preclude the possibility that their business was targeted on the basis of having traded with Shia, I find this reason is less persuasive on the evidence. Accordingly I do not accept that the applicant was targeted by the Taliban as a Sunni Pashtun who opposed their ideology or would be targeted on this basis if he returned.

(7)    The Authority went on to accept that the appellant had friendships and associations with Shia Muslims, but there was no information before it that this had ever extended to public activism on their behalf, or to attendance at Shia mosques, schools, shrines or processions. In this section of its reasons the Authority concluded that it did not accept the appellant's claim that he had a profile with Sunni sectarian militant groups in his home region as a Shia sympathiser or advocate. However, it does not appear from the nature of this evidence or the nature of the Authority’s consideration of it that its earlier finding about contrivance pertained to these aspects of the appellant’s claims.

11    After dealing with another claim not relevant to the appeal, the Authority turned to consider its conclusions about the appellant's claims to be a refugee within the meaning of s 36(2)(a) and s 5H(1) of the Act, and his claims to complementary protection under s 36(2)(aa). It identified one of the components of the phrase 'well-founded fear of persecution' in s 5J, on which the definition of 'refugee' in s 5H rests, as being that 'the person fears persecution and there is a real chance that the person would be persecuted' (paragraph 32). It then considered country information, including information about sectarian divisions in the region in which the appellant had lived, known as the Federally Administered Tribal Areas (FATA). In summary, it found that there had indeed been Sunni-Shia sectarian violence in the area involving groups including the Taliban. It noted a Department of Foreign Affairs and Trade (DFAT) assessment in 2017 that (in the Authority's paraphrase), 'although sectarian violence has affected all religious and sectarian groups, Shias represent a higher proportion of those attacked and killed. Sunni sectarian militant groups have publicised an ongoing intention to target those of Shia faith as well as non-Shia associates' (paragraph 36).

12    The country information indicated that the situation had improved significantly since a military operation the government commenced in 2014, although the Authority also noted information which gave reason to doubt the effectiveness of that operation and accepted that 'there remains a degree of volatility and fragility to the security situation'. However, in assessing the level of threat to the appellant personally, the Authority had regard to the circumstances of certain attacks in 2017 as being consistent with the analysis undertaken by various agencies that 'militant activity in FATA can be characterised as being overtly sectarian in nature (directly targeting Shias), targeting political and religious leaders, or directed towards Pakistan armed forces and government authorities' (paragraph 41).

13    The Authority then went on to consider country information relevant to the appellant's claim to fear persecution because of his Pashtun ethnicity, and a claim to fear harm as a returned asylum seeker, neither of which feature in this appeal.

14    The Authority then considered the information that had suggested a significant reduction in sectarian violence across Pakistan and an overall improvement in the security situation, and placed particular weight on DFAT's 2017 assessment that there was a low level of sectarian violence in the FATA and in the appellant's particular part of it. While the Authority accepted that incidents of violence may occur in relevant places from time to time, it went on to conclude:

49    I am not satisfied that the applicant shares a profile of those who may be at risk of being the target of any such attack. In particular, I note he is not Shia, is not a political or religious leader, and has never been employed by the Pakistan armed forces or a government authority. I further note that the applicant has not claimed that he or his family have previously suffered harm or persecution at the hands of Pakistani police, security forces or other authorities.

50    I am not satisfied that there is a real chance that the applicant would suffer serious harm in the Upper Kurram Agency as a Pashtun Sunni Muslim from XXXXXX village, as a Sunni Pashtun who has previously sold goods to Shias, or as a result of the general security situation in Kurram Agency.

15    The Authority then considered and dismissed another claim that is no longer relevant. Then, for essentially the same reasons as its findings under s 36(2)(a) of the Act (refugee criterion), it rejected the appellant's claims under s 36(2)(aa) (complementary protection criterion). The Authority therefore affirmed the delegate's decision not to grant the appellant a protection visa.

The Federal Circuit Court decision

16    The appellant submits that his proposed grounds of appeal are 'substantially refined' from what was put before the Federal Circuit Court and so a close analysis of the primary judge's reasons is unnecessary. Whether or not the first part of that submission is correct, the second part is. The primary judge engaged as far as was possible with the appellant's broad and unparticularised contention in his first ground of review that the Authority did not afford him procedural fairness, and rejected it. But the issues before his Honour bear little resemblance to the issue the appellant seeks to put before this Court.

17    The primary judge also engaged with the second ground, that the Authority 'applied the wrong legal test'. At [88]-[91], his Honour interpreted that as arguably a claim that the Authority erred in its application of the 'real chance' test. But he concluded that the Authority's application of that test was entirely sound, noting that it had used positive language that it was not satisfied that the chance of harm was a 'real one' or that there was a 'real chance' of harm for particular reasons. His Honour noted that previous harm was 'a valid consideration in determining "the chance of harm" for an applicant on return', citing Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. He also said that the Authority had correctly applied a principle said to have been drawn from Ponnundurai v Minister for Immigration and Multicultural Affairs [2000] FCA 91, that the fact that one group does not face a higher risk or chance of harm than others does not preclude there being a real chance of harm to that group.

18    His Honour also considered oral submissions by the appellant. In the course of considering an entirely unparticularised submission of error on the part of the Authority, his Honour briefly turned his mind to grounds of review that are often raised in such cases, and in the course of that said (at [100(b)]) that:

the IAA's summary of the applicant's claims is entirely sound. There is nothing to suggest that the IAA overlooked any claim (or any integer of a claim). The IAA's analysis of each claim is detailed and comprehensive. It refers to the applicant's personal circumstances and evidence and country information …

19    The primary judge also considered a letter purporting to come from the Taliban that the appellant sought to put forward in support of his case, which is not relevant to the appeal. The primary judge concluded that the application had failed to identify any jurisdictional error and so dismissed it.

The proposed grounds of appeal

20    The applicant seeks leave to amend his notice of appeal to substitute the following grounds (ground 1 being an entirely generic ground in his original notice, which he withdraws).

2.    The learned primary judge erred by finding that the Second Respondent (Authority) did not make a jurisdictional error by failing to consider the Applicant's claim that he would be targeted by the Taliban for disobeying their order to cease trading with Shi'a.

Particulars

a.    The Applicant claimed he would be targeted by the Taliban for disobeying their order to cease trading with Shi'a (CB 67-8) (the claim).

b.    The Authority failed to consider the claim.

c.    The learned primary judge erred at [100] by finding that the Authority had considered the claim.

3.    The learned primary judge erred by finding that the Authority did not make a jurisdictional error by applying the wrong legal test in determining whether the Applicant faced a real chance of serious harm if he returned to Pakistan.

Particulars

a.    The Applicant claimed that his business was targeted by the Taliban on the basis that he had traded with Shi'as (CB 67-8).

b.    The Authority found at [26] that the business was primarily targeted by the Taliban for financial gain.

c.    The Authority stated at [27] that it could not preclude the possibility that the business was targeted due to having traded with Shi'a but found it a less persuasive reason.

d.    The Authority failed to engage in the reasonable conjecture required by the real chance test with respect to the possibility that the business was targeted due to having traded with the Shi'a.

e.    The learned primary judge erred at [88]-[91] by finding that the Authority had correctly applied the real chance test.

21    I do not accept that these proposed grounds are merely refinements of matters considered by the primary judge. In relation to ground 2, at [100] the primary judge was recording his consideration of whether there was anything to indicate that the Authority had overlooked any claim that the appellant had made to it. That consideration was necessarily at a very general level and there is nothing to suggest that the particular claim that the appellant would be targeted by the Taliban for disobeying their order to cease trading with Shia was drawn to the primary judge's attention. Similarly, the findings at [88]-[91] about the application of the 'real chance' test were directed to a possible contention quite different to that now sought to be raised in proposed ground 3. Despite the possible breadth of the primary judge's conclusions at both of these points, the appellant can hardly maintain that his Honour erred, given the nature of the case that was put to him. The appellant would require leave to advance these proposed new grounds, even if they had been stated in the notice of appeal that he filed to commence this appeal.

Leave to appeal on new grounds

22    The principles concerning leave to raise grounds in migration appeals that were not grounds of appeal in the court below are well established. It must be expedient in the interests of justice to grant leave: O'Brien v Komesaroff (1982) 150 CLR 310 at 319; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]. It is fundamental to the due administration of justice that the issues between the parties are ordinarily settled at the trial, which must not be permitted to become merely a preliminary skirmish: Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX at [47].

23    To determine an appeal on grounds that were not considered in the court below can be to deny a level of appellate scrutiny to the party that is unsuccessful in this Court, as its only recourse will then be to seek special leave to appeal to the High Court: see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] (Perram J). On the other hand, there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [90] (O'Callaghan and Colvin JJ, Allsop CJ agreeing). The overriding concern must always be the broad one of the interests of justice.

24    In VUAX at [48] the Full Court said:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

25    Also, 'generally speaking, leave is more likely to be granted 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': Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [20] (Griffiths and Perry JJ).

26    Here, the appellant gave no express explanation for his omission to raise the proposed new grounds in the Federal Circuit Court. But an explanation can readily be inferred: the appellant does not speak English, he is not literate in any language, and he did not have legal representation. The Minister noted that the email address listed on the applicant's Federal Circuit Court application was the same address as the address of the migration agents who assisted him before the Authority. But that would be a slender basis on which to conclude that he had legal assistance at any stage of the proceeding, and the broad and unparticularised grounds of review, as well as the primary judge's description of the appellant's approach to the case before him, indicate otherwise. I infer that the reason the appellant did not raise these grounds below was that, not having any legal representation or assistance, he was unable to identify, formulate or advance the grounds.

27    The proposed new grounds turn entirely on the construction of the Authority's reasons. Counsel for the Minister did not point to any prejudice to his client if leave to advance the new grounds is given. He appropriately emphasised that in this case, the most important consideration is whether the proposed grounds have sufficient merit to mean that it is in the interests of justice to permit them to be advanced. For the reasons that follow, I consider that ground 3 has merit, so leave to advance it will be given. Counsel for the appellant properly accepted that ground 2 adds very little to ground 3, so leave to advance ground 2 is refused.

The issue in this appeal and the principles that apply

28    Ground 3 concerns the Authority's findings that the Taliban had primarily targeted the grocery business for financial gain and not because it had traded with Shia people. The appellant contends that since the Authority could not preclude the possibility that the business was targeted on the basis of having traded with Shia, it was then required to take that possibility into account in the course of determining whether there was a real chance that the Taliban would in fact target the appellant for that reason if he were to return to Pakistan.

29    The contention arises this way. An applicant for a protection visa must satisfy at least one of the criteria in s 36(2) of the Act: s 36(1A)(b). One such criterion is that the person is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee: s 36(2)(a). Relevantly, a person is not a refugee unless the person is outside their country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s 5H(1)(a). A person only has a well-founded fear of persecution if, among other things, 'there is a real chance that, if the person returned to the receiving country, the person would be persecuted' for one or more of the reasons of race, religion, nationality, membership of a particular social group or political opinion: s 5J(1)(b) read with s 5J(1)(a). Both parties proceeded on the basis that if the Taliban were to abduct or murder the applicant because he had associated with Shias or sympathised with them or helped them, that would be persecution for one or more such reasons.

30    This requirement of a 'real chance' of persecution is a statutory implementation (Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) page 10) of the approach to refugee claims under the Convention Relating to the Status of Refugees that Mason CJ laid down in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1998) 169 CLR 379 when his Honour said (at 389, citation removed):

I agree with the conclusion reached by McHugh J that a fear of persecution is 'well-founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. … I prefer the expression 'a real chance' because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

31    The task of the decision-maker is thus to assess the probability of a hypothetical future event - at the time of Chan, persecution for a Convention reason or, now, persecution for the reasons listed in s 5J(1)(a) - where the requisite state of satisfaction that a person is a refugee may be reached even if the probability of the future event is less than 50%.

32    In assessing that probability, the decision-maker will ordinarily need to determine whether claimed past events occurred. If a person was persecuted in the past for a relevant reason, that may increase the probability that the person will be persecuted for that reason in the future. And it is relevant that the probability is assessed as part of the fact-finding function of an administrative decision-maker, rather than a court of law. A court is generally required to find whether past events occurred on the balance of probabilities and, if it finds that they did not, to disregard the possibility that they did. But an administrative decision-maker may be required to take into account the possibility that the events occurred, despite having determined that it is more likely than not that they did not occur. If so, and if the decision-maker fails to take the possibility into account, that may be a jurisdictional error.

33    In general, the question whether the possibility should have been taken into account depends on the decision-maker's own reasons. If a fair reading of those reasons as a whole shows that the decision-maker had no real doubt that the events did not occur, then omitting to go on to consider the possibility that they did occur will not be an error. In contrast, if the decision-maker's view is that it is only slightly more likely than not that they did not occur, it may be required to consider the possibility that they did occur.

34    Apart from Chan, those principles emerge mainly from two cases: Guo especially at 574-576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 especially at [34]-[38], [53]-[56], [60]-[67] (Sackville J, North J agreeing), [136]-[137], [140] (Kenny J).

35    Although those cases predated the legislative amendments that introduced s 5H and s 5J, the same principles have been applied in the contemporary legislative context: C7A/2017 v Minister for Immigration and Border Protection [2020] FCAFC 63; (2020) 276 FCR 147 at [84]-[90] (Katzmann, Wigney and Abraham JJ). In that case at [85] the Full Court said that the decision-maker would only be required to consider a risk of refoulement if its degree of satisfaction as to matters negativing that risk 'was tinged with real doubt'. At [88] their Honours spoke in terms of whether findings were 'redolent of any doubt'.

36    There was no dispute between the parties in this case as to these principles. Counsel also accepted the following three corollaries of the principles. First, the application of the principles invariably involves a factual inquiry that depends on the particular terms of the reasons for the decision of the administrative decision-maker that are under review. Second, and following from the first point, many cases will fall between the two examples, given in Guo and followed in Rajalingam: on the one hand, a case where the decision-maker has no real doubt about the correctness of a finding; and on the other hand, a case where the finding is made on the basis that it is only slightly more probable than not that the past event did not occur. They are just that: examples, not rigid criteria. Third, and also following from the first point, the factual question is to be answered by means of the technique well known to the law of placing an objective construction on the way the decision-maker has expressed its reasons. It is not a search for the decision-maker's actual subjective state of certainty or doubt. Nor is it a search for what the decision-maker should have decided, although the objective characteristics of the circumstances facing the decision-maker can be called in aid as relevant context for the task of objective construction of the reasons.

37    Finally, it is as well to recall at this point the well-known caution in Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 against construing the reasons minutely and finely with an eye keenly attuned to the perception of error, or by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. It is one thing to pay close attention to the actual terms of the reasons in order to construe them fairly and as a whole; it is another to allow that attention to shade into an over-zealous search for error.

38    Against the background of those principles, the issue in this appeal is a confined one: did the Authority hold sufficient doubt about its finding that the appellant's business was not targeted by the Taliban because of the appellant's association with Shias, to have required it to consider the possibility that he was targeted for that reason, and to take that possibility into account in determining whether the appellant faced a real chance of persecution for that reason if he were returned to Pakistan?

Consideration

39    I have described the Authority's decision above in so far as it bears on that issue. The salient points that emerge from that description are as follows:

(1)    The Authority accepted the basic fact that the Taliban had kidnapped the appellant's brother. This was not a case where the Authority rejected the main factual ground of the appellant's claims as a complete fabrication.

(2)    What the Authority did not accept was the reason the appellant gave for the abduction. Specifically, the Authority did not accept that it was prompted by the appellant's cousin informing on him to the Taliban. It did not accept the reason the appellant gave for why it was his brother who was abducted, namely that the Taliban mistook the brother for the appellant. Accordingly, the Authority did not accept that the brother was released because the Taliban realised their mistake. Nor did it accept that the brother was abducted (whether mistaken for the appellant or not) because the appellant had disobeyed the Taliban's order not to sell groceries to Shias.

(3)    The Authority recorded the appellant's specific claims as including that the Taliban had given him that order, and that rather than stop, he had continued more discreetly to deliver goods to Shias at night through an intermediary, for a number of years. The Authority also recorded the appellant's specific evidence that he fled soon after the Taliban had summoned him to the 'Taliban Centre' in Parachinar. The Authority did not make any findings about those specific aspects of the claims, save that it did accept that the appellant and his brother sold goods to Shia customers from the town.

(4)    The Authority made a finding that there were key aspects of the appellant's evidence that were significantly inconsistent and so lacking in detail that it considered them 'to have been contrived for the purpose of strengthening his application'. Obviously a finding of that kind had the potential to undermine the appellant's credibility generally and so to undermine much if not all of the basis of his claims. The finding was, however, that the appellant had strengthened his application, not that it was entirely fabricated. And the summary of the decision given above indicates that here, the finding of contrivance was not made in relation to every aspect of the appellant's claims, but appears to have been directed to the claim that the appellant's cousin had enmity towards him and would be likely to directly harm him or report his whereabouts to the Taliban or other extremist groups, his elevated profile with the Taliban that is said to have resulted from the cousin's enmity, and the claim that the Taliban had telephoned him to summon him to the 'Taliban Centre' in Parachinar. Counsel for the Minister properly accepted that the specific observations about contrivance appeared to relate to the findings about the cousin's enmity towards the appellant, although he pointed out that it must follow that the Authority was not satisfied that the cousin had acted upon that enmity in the manner claimed.

(5)    The central factual findings were about the Taliban's motivations in kidnapping and releasing the appellant's brother. There was no direct evidence as to those motivations, as there was no information that the Taliban said why they had kidnapped the brother. Nevertheless, the accepted fact that they released him after receiving a ransom was obviously a strong indicator of what the motive, or a motive, was. But the question the Authority was determining here was a contestable one in that both the Authority, and the appellant himself in the explanation he gave for the kidnapping, were necessarily making inferences based on limited information.

(6)    In making its inferences, the Authority appeared to place significant weight on what it considered to be the implausibility that the Taliban had distinguished between the roles of the appellant and his brother in running the grocery store. However, this only led the Authority to reject 'the applicant's contention that his own profile with the Taliban as a person who sold goods to Shia in breach of their direction was unrelated to his brother' (emphasis added). This was a rejection of a particular contestable interpretation of the Taliban's motivations in capturing and releasing the brother. It was not, at that point, a wholesale rejection of the contention that the appellant and his brother had a profile with the Taliban.

(7)    The Authority did find on the basis of country information and the ransom that the 'primary reason' that the Taliban kidnapped the brother was financial. In referring to it as the primary reason, it may be taken to admit the possibility that there were other reasons too.

(8)    In all that context - the acceptance of the fact of the kidnapping, the lack of examination of the specific claims about secret supply to Shia people, the limited scope and application of the adverse findings as to credibility, the inherently doubtful nature of the exercise of divining the motivations of the Taliban, the implicit acceptance that they could have had more than one motivation - it is unsurprising that the Authority expressed its findings about the Taliban's motivation with some hesitancy. It said it could not preclude the possibility that the business was targeted on the basis of having traded with Shia. It found only that this was 'less persuasive on the evidence'.

(9)    The Authority's conclusion in the very next sentence, that it did not accept that the appellant was or would be targeted by the Taliban as a Sunni Pashtun who opposed their ideology, is necessarily coloured by that hesitancy. Counsel for the Minister submitted a different reading, namely that the next sentence resolved the Authority's doubts against the applicant. But in my view its natural meaning, read with the preceding sentence, is that the Authority thought on the balance of probabilities that the appellant was not targeted for the reason he claimed, but it could not be sure of that.

(10)    The Authority did go on to make more findings that also bore upon its ultimate conclusion that the appellant faced no real chance of adverse attention from the Taliban. It accepted that the appellant had friendships and associations with Shia Muslims, noting once again here that it did not make any express finding about the appellant's evidence that he had clandestinely supplied goods to them. But it found that there was no evidence of public activism or attendance at Shia venues or public occasions.

(11)    The Authority also considered country information which indicated that there had been Sunni-Shia violence involving the Taliban in relevant areas, but also that this had been suppressed by government action to the extent that only political or religious leaders and government representatives were likely to be targeted, and that the level of sectarian violence in the relevant region was low. The Authority found that the appellant did not have such a profile, and in that context said that it was not satisfied that there was a real chance that the appellant would suffer serious harm, including 'as a Sunni Pashtun who has previously sold goods to Shias'.

40    As has been explained, the outcome of the appeal depends on findings as to the level of doubt with which the Authority rejected the appellant's claims. A structural overview of the Authority's reasoning with that in mind is as follows. It rejected the aspects of the claim based on the cousin's enmity in terms which were not redolent of any doubt. It also rejected the aspect that concerned whether the Taliban had mistaken the brother for the appellant in terms that were not tinged with real doubt. But these aspects of the claims, while relevant to the issue of why the Taliban had kidnapped the brother, did not dispose of it. When the Authority did come to dispose of it, it did so in terms which expressly indicate room for doubt, and in all the context I have indicated that should be understood as expressing real doubt. That understanding follows because the Authority did not discount key parts of the appellant's evidence (the clandestine supplies, the kidnapping itself) and because the task of ascribing motivations to the Taliban was an inherently doubtful one.

41    I do not consider that the Authority's doubt was erased or subsumed by its subsequent reasoning as I have described it. That reasoning concerned the broader question of whether the appellant was likely to have been targeted because he has a public profile of some kind. In my view, the rejection in paragraph 50 of the Authority's reasons of the appellant 'as a Sunni Pashtun who has previously sold goods to Shias' merely refers back to its conclusion in the last sentence at paragraph 27, which should be read as coloured by the doubt expressed in the preceding sentence of that paragraph. In Rajalingam at [67] Sackville J made the point that the requirement to engage in reasonable speculation as to whether an applicant has a well-founded fear of persecution does not require a possibility inconsistent with the decision-maker's own findings to be pursued. But here, at the level at which the key findings were made, there was no necessary inconsistency. Even if there was no enmity between the appellant and his cousin, even if the Taliban did not distinguish between the appellant and his brother, even if the appellant had exaggerated the likelihood that the Taliban would kill him, and even if their primary motivation for the kidnapping was financial, there was still room for the doubt the Authority expressed as to whether the appellant's Shia associations were a reason for the kidnapping.

42    Counsel for the Minister ably developed a case to the contrary of these conclusions. He described the sentence in which the Authority says that it cannot preclude the possibility as 'the high point of the appellant's argument' and submitted that it cannot be removed from its context. While I accept both of those propositions, for the reasons I have given I consider that the context does not detract from the plain and ordinary meaning of the sentence itself, as indicating that the Authority entertained real doubt on the point. Counsel pointed to the specific findings adverse to the appellant that are discussed above, but for the reasons I have given I do not consider that they negative that doubt, even accepting the categorical terms in which the findings are made.

43    The Minister's submissions placed particular emphasis on the finding that it was implausible that the Taliban would distinguish between the appellant and his brother. Counsel agreed that the Authority's reasoning was as follows:

(a)    the appellant claimed that the Taliban would be likely to kidnap and perhaps murder him because he helped Shia people;

(b)    however, the Taliban did kidnap the appellant's brother and they would be unlikely to distinguish between the brother and the appellant for the purposes of the kidnapping;

(c)    so, since the Taliban kidnapped the brother and did not kill him, and since it released him after receiving a ransom, its intentions with respect to the appellant or his brother were likely limited to kidnapping for financial gain.

44    But while all of that clearly influenced the Authority's preference for the theory that the Taliban was motivated by financial gain, the possibility remained that there was also (or instead) the different motivation claimed by the applicant. Contrary to the Minister's submissions, that possibility did not rest on the 'implausible' distinction between the appellant and its brother; while the distinction was relevant and probative, discounting it was not determinative and nor did it render the possibility insubstantial. Counsel properly conceded that this was not a case where the Authority could find that the possibility that the appellant had been attacked for the reasons he claimed was based on an inherently implausible course of events. In confronting the Authority's expression of doubt itself, counsel sought to minimise it as merely a way of saying that it was not impossible that the appellant had been targeted because he defied the Taliban's order, or it was not wholly beyond human experience. But with respect, those are glosses on the Authority's words that change their emphasis and meaning. To give the words their ordinary meaning is not, in the end, to comb the Authority's decision for error.

Conclusion

45    The contest over ground 3 was confined to the extent of doubt the Authority felt about the possibility that the appellant's business was targeted by the Taliban because it had traded with Shia people. Since I have found the Authority entertained real doubt, it follows that it should have taken that possibility into account in the course of its consideration of whether there was a real chance that the appellant would experience persecution if he returned to Pakistan. It did not do so, and therefore it erred. The Minister did not suggest that if the Authority did err in that way, the error was not material.

46    Ground 3 will be upheld. There will be an order setting aside the decision of the Federal Circuit Court and the decision of the Authority and remitting the matter back to the Authority for determination according to law. The appellant must have his costs of the appeal. But since he has succeeded on a basis not put to the primary judge, it is common ground that there should be no order for the costs of the parties in the Federal Circuit Court.

Associate:

Dated:    9 August 2022