Federal Court of Australia

BEQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 621

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    Leave for the appellant to rely on the fourth particular of the ground as set out in the draft notice of appeal received by the Court on 26 March 2021 is refused.

3.    The appeal is dismissed.

4.    The appellant is to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) (as the Federal Circuit and Family Court of Australia (Division 2) was then known): BEQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1331 (J).

2    The appellant (to whom I will sometimes refer as BEQ19) is a citizen of Pakistan who arrived in Australia on 1 May 2014 as the holder of a student visa, which was subsequently cancelled by the Department of Immigration and Border Protection. The student visa was cancelled on the basis that BEQ19 failed to start his studies. BEQ19 applied for a Protection (Class XA) (Subclass 866) visa (protection visa) on 4 September 2014.

3    The FCCA dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 21 February 2019 in relation to which the Tribunal issued its decision record (or D) bearing the same date. The Tribunal affirmed a decision of a delegate of the responsible Minister to refuse to grant BEQ19 a protection visa on the basis that he did not meet the criteria for protection in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).

Ground of appeal and particulars

4    The sole ground of appeal was that the FCCA Judge erred in not finding that the Tribunal’s decision was vitiated by a misconception or misapplication of the “real risk” or “real chance” tests under s 36(2)(a) and (aa) of the Migration Act or by illogicality, which denied BEQ19 the realistic possibility of a different outcome. This ground effectively reproduced the ground of the application for review to the FCCA: see J[43].

5    In the notice of appeal, BEQ19 relied on three particulars. The parties filed submissions addressing the ground and those particulars. At the hearing, counsel for BEQ19 sought leave to rely on a fourth particular in relation to an argument which emerged at the hearing which counsel conceded was not raised before the FCCA Judge. An amended draft notice of appeal setting out the proposed fourth particular was filed on the day after the hearing and further written submissions addressing that particular were subsequently filed on behalf of the Minister and BEQ19.

6    Accordingly, the particulars of the ground were as follows.

7    The first particular: the FCCA Judge erred in finding, at J[60], that a country information reference describing “terrorist attacks” killing 20 people, or that violence in areas of Pakistan other than BEQ19’s own area, supplied a sound basis for concluding that BEQ19’s home area was safe.

8    The second particular: the FCCA Judge erred in finding, at J[61], that “the Tribunal can rely on an absence of evidence” or that country information references identifying instances of sectarian violence in some areas of the Punjab supplied a sound basis to “insubstantiate” a risk of sectarian violence in areas not mentioned.

9    The third particular: the FCCA Judge erred in not finding the particular mode of reasoning adopted by the Tribunal, and its selection of country information, was inapt to answer the question whether this appellant faced a not insubstantial risk at that place (emphasis in the particular).

10    The proposed fourth particular: the FCCA Judge erred in not finding that the Tribunal’s reasons at D[67(3.100)], [69], [71]-[75] and [77] set up such limited parameters for a statistical trend as between 2017 and 2018 that it exposed a failure to look to the “reasonably foreseeable future” as opposed to the “immediate future”: see MZYXR v Minister for Immigration and Citizenship [2013] FCA 252; (2013) 141 ALD 276 (MZYXR).

11    My reasons for refusing leave to rely on the proposed fourth particular and dismissing the appeal with costs are as follows.

Tribunal decision

12    The Tribunal summarised BEQ19’s claims at D[13] as follows:

•    He is a Pakistani national who is a Shia Muslim, born [date redacted] in Gujrat city, Punjab province in Pakistan. He lived with his parents and brother and sister.

•    He obtained a Diploma of [redacted] in Pakistan in [date redacted]. He worked as [redacted] for a year, then went to work in his father’s businesses, [redacted].

•    [He] claimed that his mother was well known as a teacher of the Shia religion to local children in the front room of their home for about an hour each day apart from Sunday, and that she also taught at religious functions in the community hall, held during the month of Moharram each year. He stated that his mother has never been threatened as he believes the militant group do not harass women.

•    [He] claimed that his brother was involved in helping community leaders during functions in Moharram.

•    [He] claimed that was threatened and/or attacked by Sunni groups on two occasions because he was Shia which is the reason why he left Pakistan for Australia.

•    The first incident happened in about October 2013 [(October incident)]. He and his brother were on the street in front of the main mosque in [home area redacted]. It was sunset but still light. Three young men about 24 years old on a motor bike stopped in front of them. The men did not address the brothers by name but did threaten them, telling them to stop what they were doing to do with religion else the men would kill [BEQ19] and his brother. They had an angry confrontation, then the men left.

•    [He] said that he had not seen these men before. They went away, he was frightened and went home and told his father about the incident.

•    [His] father told him he had received verbal threats from members of a militant religious group Sipah e Sahaba that they would kill his sons because they were members of the Shia community.

•    [His] father told him that three military people from that group went to his shop recently [that is, two weeks before the incident: see D[32]] but he did not report it to the police as he was too frightened. He did not tell [BEQ19] or his brother about what had happened as he did not want to worry them. They were confused and did not go to the police as they did not think the police would do much.

•    Other Shia Muslims in their town have been killed. In 2013 a well-known professor at the University of Gujrat, [name redacted], was shot and killed. [Identifying comment redacted] A man called [name redacted] was also shot and killed. As far as [he] knows, no-one was ever arrested for these killings.

•    On 20 November 2013, at about 7 pm, he and his brother and a third man, [name redacted] were walking down the main street close to the Imam Bargah where the Shia pray. This was the main mosque referred to earlier. Six men on three motorbikes came past and called out [BEQ19’s] name. He did not know how they knew his name but maybe he was the one who was most vocal at the confrontation in October 2013. It was dark but there were street lights and he could see them. Three of the men got off the motorbikes and [BEQ19] recognised them as the men who had previously threatened him and his brother. Two of [the] men had big guns and one of them had a small gun. They said that they were going to teach [BEQ19] and his brother a lesson, and fired two or three shots at them. [BEQ19], his brother and [the third man] ran and hid behind a wall at the mosque. The shots missed them but they were frightened [(November incident)].

•    [He] went home and told his father, and they went to the police station where his father made a report. He did not know where [the third man] went. [BEQ19] did not know the men personally although he recognised two from before. He gave a description of the men to the police who said that they knew who these men were, and they were wanted by the police. The police said they would look for the men but did not find them. He did not see these men again.

•    The police report stated that [BEQ19’s] father was with the brothers when they were shot at but that was not the case; he went to the police station with them.

•    He believes he was targeted because of his family’s involvement in the Shia Muslim religion especially because of his mother’s teaching and his brother’s involvement in religious teachings and prayer. He believes that his father was not targeted because Sipah target younger males rather than the older generation.

•    [His] father was worried because of the shooting and said the brothers had to leave Pakistan. He made arrangements for the brother to go to Libya. [BEQ19] was sent to hide at his uncle’s house because it was too dangerous for him to go out onto the streets, as his was the name that the men called out. His uncle’s home was about four kilometres from [BEQ19’s] family home and he stayed there until he left Pakistan for Australia. When he was at his uncle’s house, he never left it and did nothing.

•    Arrangements were made for him to come to Australia to study and he had always wanted to pursue further studies in [redacted].

•    His mother is not teaching anymore because of the incident. His brother is not doing the religious studies in Libya.

•    [He] fears going back to Pakistan as he fears he will be killed there. He cannot live anywhere else in Pakistan as Shias are treated the same everywhere and the militants will know where he is because of the family’s involvement in the religion.

•    He will have no freedom as he will be unable to practise his religion.

•    It is hard to find work in Pakistan, even for a person with a diploma in [redacted]. If he goes to another area in Pakistan, he will have nowhere to live and no support from his family. He will be at risk of harm.

13    At the Tribunal hearing, BEQ19 expanded on some of the claims set out at [12] above. The Tribunal considered and commented on that evidence at D[17]-[52]. BEQ19 also raised further claims that, while he has been in Australia, his family’s house had recently been pelted with stones, and his parents continue to receive threating telephone calls (ongoing threat claims).

14    The Tribunal remarked that most of the evidence BEQ19 gave at the hearing was consistent with the statutory declaration he provided when he first lodged his protection visa application and with what he said at the delegate’s interview (at D[53]) although it had doubts about the credibility of events BEQ19 claimed to have happened more recently (that is, the ongoing threat claims) (at D[18]). The Tribunal found (at D[57]) that the ongoing threat claims were fabricated to strengthen his protection claim. That finding was not the subject of the application to the FCCA, nor is it the subject of the ground of appeal before this Court.

15    At D[58], the Tribunal stated that it was not satisfied that there was any credible evidence of any group or person having an ongoing interest in BEQ19 in the sense of wanting to do him harm.

16    BEQ19 gave evidence that his mother, father and sister were supported by funds sent to Pakistan by BEQ19 and his brother from their earnings: see D[59]. The Tribunal observed (at D[60]) that, because BEQ19’s father had sold his business to send his sons overseas and now relies on them to support him and BEQ19’s mother and sister, that was a strong motivation for BEQ19 to want to remain in Australia.

17    At D[61], the Tribunal accepted that the October and November incidents (together the 2013 incidents) occurred as BEQ19 said, but it did not accept that he would face a real chance of serious harm or a real risk of significant harm if he were to return to his home area in Pakistan in the foreseeable future as the 2013 incidents occurred “over five years ago and the security situation in Pakistan has improved significantly since that time”. The Tribunal accepted (at D[62]) that, by virtue of his mother’s and brother’s activities, BEQ19 may have had a particular profile in 2013 that was higher when compared with other Shia who were not involved in, for example, teaching in the community, as BEQ19’s mother used to do. However, the Tribunal found that:

(a)    While BEQ19 may have had a raised profile compared to others in 2013, it did not accept that it could have been characterised as being a high profile; and

(b)    It did not accept that BEQ19 currently has a profile that sets him apart from other Shia in the community because his brother is no longer in Pakistan, his mother no longer teaches, and over five years had elapsed since the 2013 incidents took place.

18    From D[63]-[87], the Tribunal set out its findings in relation to risk of harm to BEQ19 as a Shia in Pakistan. At D[63]-[64], the Tribunal summarised BEQ19’s claims in that regard:

63.    The applicant claimed he would not be able to practice his faith in Pakistan. The Tribunal rejects this claim as it is not supported by country information, as discussed below.

64.    The applicant said that 70,000 Shia have been targeted by terrorists all over Pakistan, that Shia Muslims were targeted all over Pakistan, that the authorities cannot provide security, and kidnappings still happen in Pakistan.

19    At D[65]-[75], the Tribunal set out the following observations on the country information before it (citations omitted):

65.    In its country information report, DFAT assessed the situation for Shia Muslims in Pakistan as follows. The Shia population is spread throughout Pakistan. Most Pakistani Shias are not physically or linguistically distinguishable from Sunnis. Shia mosques are distinguishable from Sunni mosques. Shias in Pakistan are most prominent during Shia religious events and pilgrimages to Iraq and Iran which includes the Ashura festival, during which Shia men and women parade through the streets. The Shia population in Pakistan is at its most vulnerable during large gatherings such as the Ashura procession.

66.    DFAT recorded (at 3.96) that it has no evidence of systemic discrimination against Shias in Pakistan in gaining employment in the public service, police, military or the private sector. It noted that some Shia perceive discrimination against Shia gaining roles at higher levels of some organisations. Overall, DFAT assessed that Shia who are not Hazara or Turi do not generally face discrimination based on their religious affiliation when seeking employment. It noted that low-level anti-Shia discrimination does occur at the community level, and can manifest in violence or damage to property.

67.    DFAT assessed that Shias, like people from other religions and sects, continue to face sectarian violence in Pakistan although it has declined in recent years. Information about militant groups and attacks on Shia Muslims are addressed in the DFAT report:

3.99    Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties (see Security Situation). Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.

3.100    The LeJ (see Armed Groups) has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta (see Hazaras) and other Shi’a groups in the former FATA [Federally Administered Tribal Areas] and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a’. According to the SATP, 114 Shi’as were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with the ISIL, claimed responsibility for many of the attacks.

3.101    Travel in parts of Pakistan is dangerous for all travellers, regardless of sectarian, religious or ethnic affiliations. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure. Travellers in remote areas of Pakistan, notably Balochistan, Khyber Pakhtunkhwa and districts in the former FATA, are also at greater risk of criminal or militant violence due to their isolation and the limited presence of security forces. Many roads fit this profile.

3.102    Shi’a in Pakistan often travel to Iran and Iraq for religious pilgrimage. Militant groups have historically targeted routes used by Shi’a pilgrims, particularly through Balochistan. In 2014, militants attacked a bus on the Quetta-Taftan highway in Mastung District, Balochistan, killing at least 29 Shi’a pilgrims and injuring 35. Militants identify Shi’a by Shi’a names displayed on CNICs, or flagellation marks from Ashura ceremonies. Hazara Shi’a are more readily identifiable due to their distinctive physical appearance (see Hazaras). Shi’a pilgrims can travel by air rather than by road, but many cannot afford to do so.

3.103    DFAT understands that the Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. Military escorts can be infrequent. DFAT assesses that Shi’a pilgrims travelling by road to Iran through Balochistan without military escort face a moderate risk of violence from sectarian militants.

68.    At 3.104, DFAT assessed that overall, most Shia in Pakistan face a low risk of sectarian violence and the risk can vary depending on geographic location and for members of specific groups, such as Hazaras and Turis. The applicant is not of these ethnicities. DFAT also assessed that high-profile Shia face a moderate risk of violence, as they are more likely to be targeted. The Tribunal has already found that the applicant does not have a high profile or, indeed, a profile higher than other Shia Muslims in his community.

69.    At 2.69, in the section on the security situation in Pakistan, DFAT observed that while security attacks can occur anywhere in Pakistan, the security situation varies across the country. The applicant’s home is in the Punjab, where just over half the population of Pakistan, or approximately 110 million people, live (at 2.8). In 2018, the Khyber Pakhtunkhwa region reported the highest number of terrorist attacks – 125 attacks killing 196 people – and Balochistan reported the second highest at 115 attacks but the highest death toll at 354. The Punjab recorded 4 attacks killing 20 people in 2018 which was the highest decrease of all the provinces in attacks compared with 2017; a drop of 71%. In the Tribunal’s view, this suggests the Punjab is safer than other areas of Pakistan.

70.    At 3.106, the DFAT report discussed anti-Shia violence in the Punjab. It stated that sectarian tensions and violence are more prevalent in the south, and in parts of Gujranwala, Sialkot and Rawalpindi. Conservative madrassas and militant groups are more prominent in the southern part of the Punjab and the Sunni and Shia communities tend to be more segregated. Shias live throughout the Punjab, including Lahore. The Sunni and Shia communities in the cities are much more integrated. The largest sectarian attack in the Punjab in 2016 targeted Christians.

71.    The DFAT report states (also at 3.106), while violence can occur in any part of Punjab province, DFAT assessed that Shias in Lahore and Islamabad face a low risk of sectarian violence. This was the same assessment made in previous DFAT report dated 1 September 2017. The more recent one, dated 20 February 2019, had not been published and therefore was not available at the time of the hearing.

72.    A media report from 7 January 2019 stated that in 2018 there were 262 terror attacks which killed 595 people in Pakistan. Most of the attacks were targeted at security and law enforcement agencies. The deadliest attacks took place in the run-up to the July 2018 general elections. Compared to 2017, terrorist attacks were down 29% and fatalities from terrorist attacks were down 27%. The report cites different reasons for the terror attacks.

73.    Another recent report dated 31 December 2018 stated that police foiled a major terrorist attack on 30 December 2018 planned in Karachi amid heightened security measures for New Year’s celebrations, and one police officer was killed in [an] incident in Islamabad.

74.    A further article referred to the security situation in Karachi. There were 34 bomb blasts in 2014, and none in 2017. Until 17 November 2018, it seemed that there might be no terror incidents in Karachi in 2018. This attack was followed by two more major terrorist attacks, one against the Chinese Consulate General on 23 November 2018 and a car blast in the Defence Housing Authority in the early hours of 4 December 2018. According to the article, separatist groups rather than religious militants were behind at least one of the incidents and the perpetrators of the others had not been identified at the time of writing.

75.    The Center for Research and Security Studies, a think tank based in Islamabad, reported on 1 January 2019 that militancy and terrorism are on a continuous decline in settled areas of Pakistan, with 2018 being generally more peaceful than 2017. The report recorded that there were 2,333 fatalities in 2018 which dropped to 1,133 in 2018, with the greatest decline in such incidents observed in the Punjab, with a 69% drop in fatalities from 2017 to 2018. (As noted earlier, DFAT reported a 71% drop in attacks year to year, whereas the 69% drop refers to fatalities.)

20    At D[76]-[79], the Tribunal set out BEQ19’s response to this country information reiterating his concern that nowhere in Pakistan is safe for Shia (footnotes omitted):

76.    The applicant said that in other parts of Pakistan, where the Shia faith is followed, people are killed and people still do not have freedom. He said that groups such as Sipah e Sahaba are linked with political parties and it is not hard for them to target Shia anywhere in Pakistan.

77.    In response to the statement in the DFAT report of 1 September 2017 that Lahore and Islamabad are the safest places in Pakistan for Shias, the applicant said that attacks against Shias are still happening and terrorist groups are mixed in with civilians. He asked rhetorically, how anyone could guarantee they are living there safely.

78.    The applicant said that there are operations conducted by the Pakistan national army against groups including the Taliban, Sipah and Lashkar-e Jhangvi. He said that when Pakistan’s army was about to come to the Punjab, certain political parties in his area supported the terrorist groups and did not let this operation take place. He said all the terrorist groups get support from people in the Punjab area. The Tribunal was unable to find any country information that supported this view; that is, that all terrorist groups get support from people in the Punjab area. To the contrary, in June 2016 the Chief Minister of Punjab, Shehbaz Sharif, said that Pakistan Army had broken the backbone of terrorists through the operation Zarb-e-Azb. On the evidence before it, the Tribunal does not accept that terrorist groups get support from people in the Punjab area such that Pakistan’s army was prevented from undertaking Zarb-e-Azb in the Punjab.

79.    About being safe in other parts of Pakistan, the applicant said this is something that is not guaranteed for Shia groups; they have been killed before. He said the terrorist groups are still active and no one can guarantee safety for the Shia groups.

21    The Tribunal then set out (at D[80]) the following observations derived from of the UK Home Office’s “Country Policy and Information Note: Pakistan: Shia Muslims” report, relevantly, in relation to Shia who are not Hazara:

•    The state religion is Islam and Shia Muslims are freely permitted to practice their faith. Shias are well represented in government and other public service sectors.

•    In general, a Shia Muslim is not likely to face a real risk of persecution and/or serious harm from state actors. If discrimination does occur, it is not likely to be sufficiently serious by its nature and repetition to amount to a real risk of persecution and/or serious harm.

•    Shia Muslims are regarded as apostates or heretics by some extremist Sunni groups and individuals. As a result, some face hostility and security threats from extremist groups, including the Pakistani Taliban, Lashkar-e-Jhangvi (LeJ) and LeJ’s al-Alami faction.

•    The majority of targeted attacks, which usually take the form of bomb attacks at Shia dominated events and venues, occurred in the tribal regions (Federally Administered Tribal Areas and Khyber Pakhtunkhwa) and Quetta, Balochistan. Reported numbers of those killed by armed groups in 2017 varied enormously, ranging from 68 to 166. This is in the context of a Shia population of between 20 and 50 million.

•    Targeted attacks by armed groups continue and Shia traditionally represent a higher proportion of casualties from sectarian violence. However, overall sectarian violence against Shias has declined since 2013. In general, a Shia Muslim is not likely to face a real risk of persecution and/or serious harm from non-state actors, though the risk may vary depending on location.

•    Although there continued to be targeted attacks in Shia dominated areas, these are infrequent and do not generally amount to substantial grounds for considering there is a real risk of persecution and/or serious harm. However, decision makers must consider whether there are particular factors relevant to the person which might increase the likelihood of them facing a real risk of persecution or serious harm. Each case must be considered on its facts, with the onus on the person to demonstrate that they face a particular risk.

•    The government has taken steps to limit the capability of terrorist groups that target the general public as well as Shia Muslims specifically. Federal and provincial governments have provided security during Shia religious commemorations and for Shia pilgrims travelling to and from Iran although Shia organisations reported that security was inadequate and that there are sometimes significant gaps between military escorts.

•    In general, the state appears both willing and able to offer effective protection to Shia Muslims, but it should be noted that state protection does not need to eliminate the risk of discrimination and violence. A person’s reluctance to seek protection does not necessarily mean that effective protection is not available.

22    At D[81], the Tribunal stated its view that BEQ19’s statements at the hearing about the security situation in Pakistan were out of date and did not take account of improvements in recent years so that they did not reflect the current situation. It restated that it did not accept that BEQ19 or his family have a profile that creates a real chance of serious harm or a real risk of significant harm for him should he return to Pakistan, more than four and a half years after he left the country.

23    At D[82]-[84], the Tribunal considered the claim that if BEQ19 returned to Pakistan he would not be able to find work, and if he went to another part of Pakistan, he would have nowhere to live and would get no support from his family. Those matters were not the subject of the application for review or this appeal.

24    The Tribunal then said the following at D[85]-[87]:

85.    The applicant said that the area in which his family lived was an area with a majority Sunni population. According to his statutory declaration, his family live in [home area redacted]. Based on maps, it is about [redacted] from the centre of Gujrat. The Tribunal was unable to locate statistics specific to [home area] about the proportion of Shia Muslims who live there. However as Shia Muslims are in the minority compared to Sunni Muslims when considering Pakistan as a whole, the Tribunal accepts that they are also in the minority compared to Sunni Muslims in [home area redacted]. The DFAT report at 3.106 (see paragraph 70 above) identifies areas in the Punjab where sectarian tensions and violence are more prevalent, and where conservative madrassas and militant groups are more prominent. None of these areas include or border [home area redacted]. On the evidence before it, including the country information, the Tribunal does not accept that the applicant has a well-founded fear of being persecuted because of his Shia faith.

86.    As observed by the UK Home Office report referred to above, Shia Muslims are freely permitted to practise their faith, and Federal and provincial governments have provided security to Shia Muslims during Shia religious commemorations. The Tribunal finds therefore that if returned to Pakistan, the applicant would be able to practice his faith without facing a real chance of serious harm or a real risk of significant harm.

87.    The Tribunal does not accept on the evidence that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk he will suffer significant harm. The Tribunal is satisfied that the applicant will be able to subsist as his immediate family continue to live in [home area redacted] and they would support him and that he will be able to find employment in due course.

25    On the basis of its findings, the Tribunal goes on to conclude at D[88]-[89] that it was not satisfied that BEQ19 is a person in respect of whom Australia has protection obligations under either s 36(2)(a) or (aa) of the Migration Act. The Tribunal therefore affirmed the decision not to grant BEQ19 a protection visa: D[91].

Decision of the FCCA

26    In his written submissions to this Court, BEQ19 adopted the factual and procedural context of his application for the protection visa set out by the FCCA Judge at J[1]-[42].

27    The sole ground before the FCCA was set out at J[43] as follows:

The [Tribunal]’s decision was vitiated by a misconception or misapplication of the ‘real chance’ or ‘real risk’ tests under paragraphs 36(2)(a) & (aa) of the Migration Act 1958 (Cth), or by illogical reasoning which denied [BEQ19] the possibility of a different outcome.

28    At J[43], the FCCA Judge noted that BEQ19’s main submissions centred on the applicability to this matter of the error identified in CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 (CGA15) (Murphy, Mortimer and O’Callaghan JJ). CGA15 is a case in which the Full Court found that the Tribunal engaged in a flawed statistical analysis in reaching the conclusion that while CGA15 would be at risk of serious harm as a Shia in the Kurram Agency or Pakistan, he would not be at serious risk of harm if he relocated to Islamabad or Rawalpindi.

29    After summarising aspects of CGA15 at J[44]-[49], the FCCA Judge summarised BEQ19’s submissions comparing the reasoning of the Tribunal in BEQ19’s case to the reasoning of the Tribunal found to be in error in CGA15 and the Minister’s submissions at J[50]-[54].

30    The FCCA Judge concluded, at J[54], by saying that what one must do is go back and consider the claim actually made by BEQ19. The FCCA Judge then said the following at J[55]-[66]:

55.    His claim is that if he returned to his home in Pakistan, he would be killed or targeted because of his high profile, the same high profile that he had in 2013 that caused him to leave. He then claimed that he feared going back to Pakistan because he cannot live anywhere else in Pakistan because Shias are treated the same everywhere, and the militants will know where he is because of the family’s involvement in the religion, and that he would have no freedom and would be unable to practise his religion, and if he had to go to another area in Pakistan, he would have nowhere to live and no support from his family.

56.     The Tribunal had gone through quite a deal of country information, as I have already noted. The Tribunal specifically noted, at paragraph 70 of its reasons, that the DFAT report, at paragraph 3.106, discussed anti-Shia violence in the Punjab and stated that sectarian tensions and violence were prevalent in the south and in parts of three particular cities. It noted that conservative madrasas and militant groups were more prominent in the southern part of the Punjab, and the Sunni and Shia communities tend to be more segregated.

57.     It also noted that Shias live throughout the Punjab, including Lahore and that the Sunni and Shia communities in the cities are much more integrated. In coming to the conclusions that the Tribunal did, it rejected the Applicant’s claim that he had a high profile. The conclusion that the Tribunal came to was that he would have no real profile because the matters that caused him to have a profile were not matters that were germane to him. It was his relationship to the activities of his brother and mother that caused the profile.

58.    As his brother and mother are no longer involved in those activities, therefore any reason for him to have a profile would be gone, and the fact that there has been quite an effluxion of time between the time of the incidents in 2013 and when the Tribunal came to decide the matter. Therefore, quite rightly as the Applicant points out, the Tribunal were treating the Applicant as if he were simply a Shia without any particular profile.

59.     In saying what the Tribunal did, at paragraph 85, (that Sunni Muslims were in the majority in the Applicant’s home town, and that the DFAT report identified areas in the Punjab where sectarian tensions and violence are more prevalent, but that none of those areas included or bordered in [the home area redacted] of Gujrat City), the conclusion that the Tribunal made was not one that, therefore, … the home area of the Applicant was safer than other places. What the Tribunal was, in effect, doing is looking at what was the violence that was being perpetrated in the Punjab.

60.     The evidence that the Tribunal spoke of showed that, in 2018, there were four attacks, and those four attacks killed 20 people; that this was a decrease in the number of attacks and number of fatalities that had occurred in 2017; and, that the violence and tensions occur in the areas that are not where Gujrat City or [home area redacted] are. It is not, therefore, a conclusion that the area is safer. It is a conclusion that the area is safe. That is because the areas where the tensions are, are not in [the] area where the Applicant would be.

61.     I accept what the Minister says, that the Tribunal can rely on an absence of evidence. The country information did not refer to that area as being an area where there is sectarian tension or violence or where there had been violence. The information looked at violence in Punjab and that there were four attacks which killed 20 people. Those areas where the violence occurred was not the home area of the Applicant.

62.     It seems to me that it is logical, when one is looking at a place where the Applicant would be going, to look at that information and then to come to the conclusion that, therefore, the Applicant did not have a well-founded fear of being persecuted because of his Shia faith.

63.     This is unlike the situation that obtained in CGA15 … where … there was simply a blanket conclusion that because a quarter of the population were Shia that the sort of matters that would have occurred in Rawalpindi or Islamabad were not matters that amounted to a significant risk to that particular Applicant.

64.     This Tribunal has been far more targeted in looking at what the situation is. This Tribunal has looked at statistics for all over Pakistan simply because the Applicant said that Shias are in danger all over Pakistan. The Tribunal had a duty to consider what the real risk for Shias are generally in Pakistan.

65.     The information and statistics led the Tribunal to conclude that the risk for Shias is lessening as the security situation has improved over the last number of years.

66.     The Tribunal has then looked at, as best it could, what was the situation where the Applicant was. There may not have been any information specifically about that area, but to look at where the areas of violence were and what was the extent of the violence in the whole of the Punjab was a proper exercise for the Tribunal to undertake. The undertaking of that exercise and the information gleaned has been able to lead the Tribunal to a conclusion that was open on the evidence and was logical.

31    The FCCA Judge concluded that the ground of review was not made out, and dismissed the application with costs.

BEQ19’s submissions relating to the first to Third particulars of the ground of appeal

32    BEQ19 submitted that, “axiomatically”, s 36(2)(a) and (aa) of the Migration Act require an evaluation of future risk and they proceed from a statutory assumption that, in determining whether there is a real chance that something will occur in the future, “what has occurred in the past is likely to be the most reliable guide as to what will happen in the future”: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

33    BEQ19 submitted that the essence of the Tribunal’s reasoning was that while it accepted that BEQ19 had been persecuted (because, at D[61], the Tribunal accepted that the 2013 incidents had occurred) it found that the security situation in Pakistan had improved significantly since that time and BEQ19 had lost the profile that he had in 2013 by virtue of his mother’s and brother’s activities, which had ceased in Pakistan.

34    In oral submissions, counsel for BEQ19 submitted that:

(a)    As the Tribunal accepted (at D[61]) that BEQ19 had twice been specifically targeted by militants in late 2013 because he and his brother were from a Shia family and because his mother and brother were involved in the Shia community, unless there was some pertinent evidence ameliorating future risk, that risk was substantiated for the purposes of s 36(2)(a) and (aa) of the Migration Act;

(b)    He accepted that the evidence was that BEQ19’s brother had left Pakistan to live overseas and that his mother was no longer teaching but said that the Tribunal’s decision did not rest on those circumstances alone and all of the circumstances must be accounted for. If the balance of the Tribunal’s reasons can be impugned, the decision falls away; and

(c)    He accepted that effluxion of time “may insubstantiate a risk” but one must be careful about confronting the competing inferences and looking at latent assumptions in accepting that the risk had been “insubstantiated”.

35    In written submissions, BEQ19 submitted that “the entirety of the Tribunal’s reasoning insubstantiating the future risk turned upon source material dealing with other places in Pakistan and different attacks and different targets” (emphasis in original). He said that the Tribunal thereby committed an error by reasoning that focusses on whether one place is safer than another, rather than whether the place to which the visa applicant will be returned is safe.

36    BEQ19 noted that in CGA15 the Tribunal had found that CGA15 was at risk of serious harm if he were returned to the Kurram Agency. The issue was whether he could relocate to Islamabad or Rawalpindi. BEQ19 notes that the Tribunal in that case reasoned as follows, taking particular note of the emphasised section of the quotation (see CGA15 at [40]):

… The Tribunal also considers that the attacks in Rawalpindi and Islamabad are mainly on Shia mosques and religious festivals, as well as some attacks on government buildings, particularly in Islamabad. Levels of communal violence between Shias and Sunnis are reportedly quite low throughout the country. The Tribunal accepts that where the applicant is most likely at risk because he is a Shia is when he attends religious processions or is at a location where large numbers of Shias gather. However, as discussed above, the attacks that have taken place on those occasions are sporadic, and considered in the context of the size of the Shia population which is reportedly approximately one quarter of the population of almost 200 million people, the Tribunal regards the risk of the applicant suffering serious harm on that ground to be remote. Thus, given the relatively low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant’s lack of a particular profile with the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan and in urban areas, the Tribunal is satisfied that the chance of the applicant being harmed in an act of targeted sectarian or generalised violence in Islamabad or Rawalpindi is remote. …

(Emphasis added.)

37    BEQ19 relied on the Full Court’s caution in CGA15 at [50] and I note what it said at [53] for context, as follows (emphasis in the original):

50.    While it may be open to the Tribunal to rely on the sort of statistical analysis that it did, there are dangers in relying on such an approach when its fundamental task is to consider the risk that this visa applicant would face if returned … In our view, if the Tribunal is to engage in this sort of statistical analysis, it must give careful attention to ensuring that it correctly assesses the population across which the relevant risk of serious or significant harm is said to be spread.

…

53.    … Understanding that Shias make up a quarter of the population of Pakistan does not assist in understanding the proportion or number of Shias in Islamabad or Rawalpindi. There was no evidence before the Tribunal about how many Shias live in those cities, or what proportion Shias comprise of the population of those cities. There was also no evidence of what proportion of Shias attend the religious festivals and parades, nor indeed how many Shias attend them. We cannot accept that the conclusion that the appellant will face a remote risk of harm in those cities can reasonably be based on the fact that Shias make up quarter of Pakistan’s population.

38    BEQ19 contended that the Tribunal’s finding at D[88] (that BEQ19 does not satisfy the criterion in s 36(2)(a) of the Migration Act) was based on two premises set out at D[85], without any statistics specific to BEQ19’s home area:

(a)    It accepted that Shia were a minority compared to Sunni in BEQ19’s home area, because Shia are in a minority in the whole of Pakistan; and

(b)    It found that Shia minorities in other areas in the Punjab are in greater danger because the other areas have been identified in country information as being where the sectarianism is “more prevalent” and fundamentalism and militancy are “more prominent”.

39    BEQ19 submitted that even though D[85] refers only to D[70], the conclusions in D[85] and [88] are, in fact, also informed by the reasoning at D[66]-[85]. BEQ19’s written submissions described this reasoning as “entropic”, which I understand to mean chaotic and without form or lacking or gradually losing order. In written submissions, BEQ19 relied on these features of D[66]-[75]:

(a)    At D[66], the Tribunal noted that country information suggests there is no systemic discrimination “against Shias in Pakistan”;

(b)    At D[67], the Tribunal extracted country information noting that Shias “continue to face sectarian violence in Pakistan although it has declined in recent years”, “insubstantiating” that finding with examples of recent attacks in Quetta and Karachi; the general danger of travelling in Balochistan, Kyber Pakhtunkhwa and the former Federally Administered Tribal Areas; and targeting of Shia religious pilgrimages, particularly in Balochistan;

(c)    At D[68], the Tribunal observed that “most Shia in Pakistan face a low risk of sectarian violence and the risk can vary depending on geographic location and for members of specific groups, such as Hazaras and Turis”. It noted that BEQ19 is neither Hazara nor Turi;

(d)    At D[69] the Tribunal observed that the Punjab is “safer” than other areas of Pakistan;

(e)    At D[70] the Tribunal applied the same logic to the Punjab itself by observing that “sectarian tensions [and violence] are more prominent [sic prevalent] in the south, and in parts of Gujranwala, Sialkot and Rawalpindi”, that fundamentalists are “more prominent in the southern part of the Punjab and the Sunni and Shia communities tend to be more segregated”, that Shia live throughout the Punjab, including Lahore, that Sunni and Shia communities in the cities are more integrated, and finally that “the largest sectarian attack in the Punjab in 2016 targeted Christians”;

(f)    At D[71] the Tribunal observed that Shia in Lahore and Islamabad face a low risk of sectarian violence;

(g)    At D[72] the Tribunal observed that “terrorist attacks” in the whole of Pakistan “were down 29% and fatalities from terrorist attacks were down 27%” in 2018 compared with the year before. That is, 262 “terror attacks” killing 595 people anywhere within Pakistan;

(h)    At D[73] the Tribunal observed that police foiled a terrorist attack in Karachi in 2018;

(i)    At D[74] there is a reference to 34 bomb blasts in 2014 while in 2018 there were only two major bombs; and

(j)    At [75] the Tribunal observed that “militancy and terrorism are on a continuous decline in settled areas of Pakistan, with 2018 being generally more peaceful than 2017”.

40    BEQ19 submitted that, at J[59]-[60], the FCCA Judge rejected the contention that the Tribunal had reasoned that BEQ19’s home area was “safer” rather than “safe” on the basis that “what the Tribunal was, in effect, doing is looking at what was the violence that was being perpetrated in the Punjab”. BEQ19 said that the FCCA Judge erred in saying that because:

(a)    At D[69], the Tribunal expressly reasoned that the Punjab is “safer” than other parts of Pakistan. In substance, drawing inferences from attacks in other parts of Pakistan while having no comparable information about BEQ19’s home area can only be reasoning that BEQ19’s home area was “safer” rather than “safe”;

(b)    It is true that the reasoning in CGA15 distinguishes between “safer rather than safe” reasoning on the one hand (a ground on which CGA15 failed in that case) and illogical statistical analysis on the other (the ground on which CGA15 succeeded in that case). However, both are, in this case, manifestations of the same error: a failure to consider this risk faced by BEQ19 (emphasis in the submissions);

(c)    The statistical aspect of the Tribunal’s reasoning was meaningless. To compare figures from 2017 with 2018 to “insubstantiate” a risk is no more satisfactory than impugning climate change because last year’s winter was milder than the winter the year before that. The problem can be seen by analysing the references to Karachi. The Tribunal did not have any data relating to BEQ19’s home area. Instead, at D[73], it implicitly invites an inference that the situation in BEQ19’s home area is to be assimilated to a single police action in Karachi on 31 December 2018. This submission more properly relates to the proposed fourth particular; and

(d)    Pointing to other parts of the Punjab as “more dangerous” was a meaningless exercise when there was no way of comparing that to BEQ19’s situation in his home area. As noted at D[69], the Punjab is an area which is home to just over half the population of Pakistan – some 110 million people. It is axiomatic – or in any event unexamined by the Tribunal – that the proportion of Shia to Sunni is not consistent across that population. Further, there is no logic in comparing the situation in BEQ19’s home area with big cities (for instance, Karachi or Lahore) that are located far from it.

41    BEQ19 also submitted that, respectfully, the FCCA Judge’s finding at J[61] that “the Tribunal can rely on an absence of evidence” because “the country information did not refer to [BEQ19’s home area] as being an area where there is sectarian [tension or] violence or where there had been violence” is wrong in principle. He says that CGA15 could not have been decided as it was if that were so. He relies on CGA15 at [50], where the Full Court said that the Tribunal “must give careful attention to ensuring that it correctly assesses the population across which the relevant risk of serious or significant harm is said to be spread”.

42    I will not set out a summary of the Minister’s written and oral submissions in relation to the ground and the first three particulars. To the extent necessary, I will take them into account in the consideration which is set out below.

Consideration

43    In oral submissions, counsel for BEQ19 submitted that the ground of appeal gives rise to three main points. BEQ19 contends that the Tribunal committed jurisdictional error because:

(a)    It reasoned that it was “safer” in BEQ19’s home area in the Punjab rather than finding that it was “safe”;

(b)    Its statistical analysis was illogical because it relied on very abstract data without any means of translating that into BEQ19’s particular circumstances in his home area of the Punjab; and

(c)    If the Tribunal was looking at 2017 and the reduction in attacks in 2018 as a meaningful basis to “insubstantiate” the risk of harm to BEQ19 if he was returned to Pakistan, then it must be that the Tribunal was looking to the immediate future and not the reasonably foreseeable future.

44    It is appropriate to consider first whether leave should be granted to BEQ19 to rely on the fourth particular which is set out at [10] above and relates to the issue identified at [43(c)] above.

The question of leave to rely on the proposed fourth particular

45    The principles applicable to whether leave should be granted to argue a new issue on appeal are set out in the Full Court’s decision 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) as follows:

46.    … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47.    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48.    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. …

46    The following matters weigh against the exercise of the Court’s discretion to the grant of leave for BEQ19 to rely on the proposed fourth particular to the ground:

(a)    BEQ19 was legally represented in the FCCA by the same counsel and solicitor as represented him on the appeal. No explanation has been offered for why the issues raised by the proposed fourth particular were not raised in the proceedings before the FCCA Judge;

(b)    The issues raised by the proposed fourth particular were first raised and developed in oral submissions at the hearing, notwithstanding that BEQ19 took the opportunity to file written submissions prepared by counsel before the hearing. At the hearing, the Minister’s counsel acknowledged that she received a copy of North J’s decision in MZYXR on the morning of the hearing but said that she did not know to what issue that case might relate. No explanation has been offered for the delay or the extent of the delay in raising the proposed fourth particular for the first time on the appeal;

(c)    The scheme of the Migration Act is that judicial review of decisions of the kind raised in this case should be considered by the Federal Circuit and Family Court of Australia (Div 2) (as the FCCA is now known) in the first instance and by this Court on appeal.

47    There are other factors to be weighed in the balance:

(a)    It is common ground that the issues raised by the proposed fourth particular are questions of law for which no new evidence is required and the Minister does not claim prejudice from the issues being raised now;

(b)    This is an appeal in a refugee matter. In CGA15 at [36]-[37], the Full Court said:

36.    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is 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) 226 FCR 68 at [55] (Flick J).

37.    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may 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).”

(c)    The merit of the proposed fourth particular should be considered and that issue is significant. The weaker the merit of the issues sought to be raised, the greater the need for other aspects to be favourable, such as the explanation for not taking the points below and prejudice to the opposing party: see Han v Minister for Home Affairs [2019] FCA 331 at [15] (Bromwich J).

48    I turn now to consider the merit of the proposed fourth particular having considered the further submissions provided by BEQ19 and the Minister. The assessment of whether the proposed fourth particular has sufficient merit to justify the grant of leave is to be conducted on a “reasonably impressionistic basis”, without conducting a de facto final hearing. This threshold requires the ground, with reference to the proposed fourth particular to be “arguable”, that is, it must not be “fanciful, illogical, impermissible or devoid of merit, but ha[ve] a level of rationality and a basis in the material ... sufficient for the Court to be satisfied it is appropriate to hear full argument”: see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]-[6] (Mortimer J, as the current Chief Justice was then known).

49    The first thing to say about the proposed fourth particular as it was set out in the draft notice of appeal is that, in circumstances where the argument was not raised before the FCCA Judge, it is not possible to perceive error in the Judge failing to find, having regard to D[67(3.100)], [69], [71]-[75] and [77], that the Tribunal had erred by looking only to the immediate future, not the reasonably foreseeable future. The parties argued merit on the basis that the proposed fourth particular had not been before the FCCA Judge and it is being raised for the first time on appeal and I will proceed on that basis.

50    The proposed fourth particular relies on the decision in MZYXR. The Minister submitted that MZYXR was factually distinguishable from BEQ19’s case and BEQ19 disputed that claim. I accept that MZYXR is factually distinguishable, but the principle applied in that case remains good law. That is, in determining whether or not a visa applicant is a refugee, the decision-maker must consider whether there is a real chance that that person will face the risk of serious harm in the foreseeable future – not just the immediate future – if they return to their country.

51    MZYXR was an appeal against a decision of a Federal Magistrate to dismiss an application to set aside a reviewer’s recommendation to the relevant Minister that MZYXR not be recognised as a refugee. MZYXR claimed to have been born in Afghanistan with Hazara ethnicity and that he was religiously Shia. In MZYXR at [4], North J stated that the question raised on the appeal was whether the reviewer considered whether MZYXR had a well-founded fear of persecution in the reasonably foreseeable future, as distinct from the present or immediate future.

52    In MZYXR at [12], North J noted that there was a section in the country information before the reviewer which focussed on the question of the conditions for Hazaras in Afghanistan in the reasonably foreseeable future. Sources of the information noted the improvement in the conditions facing Hazaras in around early 2010, but they questioned whether those conditions would endure. Justice North emphasised the following statements from the country information:

The human rights gains Hazaras have experienced in recent years are very real but they will wonder if it will continue.

There is little reason to be confident that the general situation in Afghanistan will take a turn for the better in the foreseeable future.

In the ever-evolving context of Afghanistan, the potential for increased levels of ethnic-based violence will need to be borne in mind.

53    In MXYXR at [17], North J found that the reviewer had paid careful regard to the then current situation in Afghanistan and that the Tribunal’s findings were made based on country information. However, at [18], North J found that country information which was before the Tribunal which cast doubt on the prospects of Hazaras in Afghanistan maintaining their then current position was not dealt with in the reasons. It is plain that North J took into account his findings at both [17] and [18] in finding, at [19], that it was apparent from the structure and methodology of the reviewer’s reasons that, upon a fair reading, the reviewer had failed to address the issue of the prospects of persecution in the reasonably foreseeable future. That was so notwithstanding the reviewer’s “formulaic reference” to the “reasonably foreseeable future” in an identified paragraph of the reviewer’s reasons containing its findings concerning whether there was a real chance of MZYXR being harmed if he was returned to Afghanistan.

54    Counsel for BEQ19 confirmed at the hearing that BEQ19 did not contend that there was something in the DFAT report or other country information before the Tribunal in his case that should have been taken into account but was not. Accordingly, MZYXR is factually distinguishable from BEQ19’s case.

55    Having said that, the issue that the proposed fourth particular raises is whether the Tribunal’s temporal lens was too narrow and therefore restricted its consideration to the present and the immediate future, rather than the risk to BEQ19 in the reasonably foreseeable future, which would amount to jurisdictional error in accordance with well-established authority, including MZYXR.

56    BEQ19’s written and oral submissions addressing the proposed fourth particular were:

(a)    In relation to D[67] as a whole and D[67(3.100)] in particular, the examples given are irrelevant to any risk of harm faced by BEQ19 in his home area in circumstances where he had twice been the victim of sectarian violence. What the Tribunal said there seems to be part of a larger point that the overall security situation across Pakistan has improved; that is the only way to make sense of citing dozens of instances of terrorist attacks. It all seems to be wrapped up in the larger point that there was a decline in terrorist attacks between 2017 and 2018;

(b)    In relation to D[69], counsel for BEQ19 accepted that a drop in terrorist attacks in the Punjab of 71% in 2018 when compared with the experience in 2017 was a “dramatic drop”, but submitted that the parameters were selective and did not really make a lot of sense. Counsel submitted that it was a meaningless statistical exercise to say that because there was such a drop in the period spanning 2017 to 2018 that there was a general decline because it is not evidence of a trend. It invited the question of whether the Tribunal was looking to the foreseeable future;

(c)    The example given at D[70] is an attack that was directed to Christians. Counsel submitted that it demonstrates no trend and it does not speak to the risk of violence against Shia at any level;

(d)    There were no submissions addressed to D[71]-[75] or [77] in this context; and

(e)    In relation to D[80], the reference to violence against Shias having declined since 2013 in the fifth dot point is of tangential relevance. He noted, however, that the dot point is qualified by the observation that “the risk may vary depending on location”.

57    In summary, counsel for BEQ19 submitted that (emphasis in the original):

In reality, a fair reading of the decision record does demonstrate an extremely odd selection, almost tortured, of country information instantiating invoked in support of a downward ‘trend’. In reality, the main force of the country information selected was to highlight what was said to be a significant improvement between 2017 and 2018 (of course, at an extreme level of abstraction). Such a comparison could only rationally inform a view directed to the immediate future. It could not rationally inform a view directed to the reasonably foreseeable future. Such a view, on the particular mode of analysis selected by the Tribunal, would have required reaching further back in time for a meaningful analysis.

58    I accept these submissions of the Minister:

(a)    The assessment of risk of harm in the foreseeable future involves “a predictive exercise involving speculation as to the circumstances in the future on the basis of material in the present, and what has happened to the person in the past”: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS) at [33] (Kenny, Griffiths and Mortimer JJ). In this context, “what has occurred in the past is likely to be the most reliable guide as to what will happen in the future”: Guo at 575;

(b)    In performing a review function of the kind conducted by the Tribunal, the usual principle is that the decision-maker should consider current information or material most likely to give the decision-maker an indication of what the situation is likely to be in the country to which a visa applicant may be forced to return: see DHW17 v Minister for Home Affairs [2019] FCA 985 (DHW17) at [21] (Mortimer J); MZYTS at [38] and [45]);

(c)    Consideration of up-to-date material is a core aspect of the review function where the task is to determine whether a person has a well-founded fear of persecution on return (in the foreseeable future) to a country, or faces a real risk of significant harm (in the foreseeable future) in that country. The task is predictive, and while each case will turn on its facts, in general terms it can be said that a decision-maker should, in order to perform her or his task, base that prediction on the most recent and reasonably available information about the situation in a particular country: see DHW17 at [21];

(d)    In this case, the Tribunal hearing was on 11 October 2018 and its decision was published on 21 February 2019. The Tribunal therefore had regard to very recent country information in reaching its decision, including extensive examination of a DFAT Country Information Report dated 20 February 2019 (DFAT report) (see D[65]-[71]), reference to articles and a report published in December 2018 and early 2019 (D[72]-[75]), and the UK Home Office report published in January 2019 (see D[80]); and

(e)    It is well settled that the choice, assessment and weight to be given to country information is a matter for the decision-maker: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13] (Gray, Tamberlin and Lander JJ).

59    In relation to the Minister’s reliance on the fact that the Tribunal relied on the most recent country information, counsel for BEQ19 submitted that, while it is true that 2018 was the latest the Tribunal could go, 2017 was not the earliest time from which the Tribunal needed to consider in order to assess BEQ19’s exposure to risk in the foreseeable future.

60    In my view, the proposed particular lacks sufficient merit to warrant consideration on appeal.

61    In reaching its conclusion expressed at D[61] and D[87]-[89] that BEQ19 did not face a real chance of serious harm or a real risk of significant harm if he was returned to Pakistan in the foreseeable future, the Tribunal expressly acknowledged the test to be applied for the purposes of s 36(2)(a)( and (aa) of the Migration Act. That is, of course, not determinative: see CGA15 at [26]; MZYXR at [19]. Nonetheless, it is indicative that the Tribunal was aware of the matter of which it had to be satisfied.

62    The Tribunal then considered BEQ19’s personal circumstances by:

(a)    Setting out (at D[13]) BEQ19’s claims made in the statutory declaration accompanying his application for protection and considering those claims and BEQ19’s further evidence at D[14] and [16]-[60];

(b)    After considering the ongoing threat claims (at D[54]-[57]), stating (at D[58]) that it was not satisfied that there was credible evidence of any group or person having an ongoing interest in BEQ19, in the sense of wanting to do him harm;

(c)    Accepting (at D[61]) that the 2013 incidents occurred as BEQ19 said but qualifying that finding by noting that the incidents occurred over five years before the Tribunal made its decision and that the security situation in Pakistan had “improved significantly since that time”;

(d)    Accepting (at D[62]) that at the time the 2013 incidents occurred, BEQ19 may have had a particular profile by virtue of his mother’s and brother’s activities, and that profile was higher than other Shia Muslims who were not involved in, for example, teaching in the community. However, the Tribunal found that that “raised profile” could not be described as being a “high profile” (at D[62]). It also did not accept that, at the time of the Tribunal’s decision, BEQ19 had a profile that set him apart from other Shia because his mother no longer taught, his brother no longer lived in Pakistan and over five years had elapsed since the 2013 incidents took place;

(e)    Noting (at D[63]) BEQ19’s claims that he would not be able to practice his faith in Pakistan and his claim that Shia Muslims were targeted all over Pakistan, that authorities cannot provide security and kidnappings still happen in Pakistan;

(f)    Canvassing recent country information at D[65]-[75]. While none of that country information related specifically to BEQ19’s home area, it is open to attribute the fact that so much of the country information related to the risk to Shia in Pakistan as a whole and the Punjab in particular to the nature of the claims made by BEQ19 recorded at D[63] (which were not limited to his home area) and the Tribunal’s finding at D[62] that he never had a high profile and he no longer had a raised profile due to his mother ceasing to teach and his brother leaving the country, which was re-iterated at D[81]; and

(g)    Accepting (at D[85]) BEQ19’s claim that Shia were in a minority compared to Sunni in his home area, despite the lack of evidence to support it (effectively giving BEQ19’s claim the benefit of the doubt), and then going on to consider, based on the DFAT report, the prevalence of sectarian violence and tensions in the Punjab and expressly considering whether any of the areas include or border BEQ19’s home area and finding that they did not.

63    For reasons set out at [58] above, there was nothing untoward in the Tribunal making its evaluation of the situation for Shia Muslims in Pakistan based on the most recent country information available. It is true that the period between 2017 and 2018 is a relatively narrow timeframe. However:

(a)    It was DFAT’s assessment that, although Shia (like people from other religions and sects) continued to face violence in Pakistan, that risk had “declined in recent years” (see D[67]);

(b)    It is clear from D[67] that DFAT canvassed a period longer than 2017-2018 in its discussion of militant groups and attacks on Shia Muslims across many areas of Pakistan, since it noted a threat from June 2011;

(c)    At D[68], the Tribunal noted that DFAT found that, “overall”, most Shia in Pakistan face a low risk of sectarian violence, but the risk can vary depending on geographic location and membership of specific groups. It also noted that high profile Shia were at moderate risk of being targeted. By reference to his personal circumstances, the Tribunal found that BEQ19 was not a member of the specific groups mentioned in D[68], he did not have a high profile, and, it found (at D[85]) that country information indicated that BEQ19’s home area was not in or adjacent to an area in the Punjab in which sectarian tensions and violence were found to be prevalent;

(d)    At D[70], the Tribunal noted that the DFAT report indicated where the prevalence of anti-Shia tension and violence was in the Punjab Those areas did not include Gujrat City or its environs. There is a reference to an attack on Christians in the Punjab in 2016; that was relevant in the context of sectarian violence (including at whom it was directed) and indicates that a period greater than 2017-2018 was under consideration;

(e)    D[74] contains a comparison of bomb attacks in Karachi between 2014 and 2017, which again indicates that DFAT’s assessment of declining sectarian violence in Pakistan canvassed a period greater than 2017-2018;

(f)    At D[78], the Tribunal referred to an article published in The Nation (2016) in relation to the assertion made by BEQ19 and found that, contrary to BEQ19’s assertion, in June 2016, the Chief Minister of the Punjab said that the Pakistan army had “broken the backbone of terrorists through the operation Zarb-e-Azb”. That is probative of the Tribunal considering a period greater than 2017-2018 and of declining violence in the Punjab; and

(g)    At D[80], the UK Home Office report published in January 2019 supported DFAT’s report in stating that Shia Muslims are freely permitted to practise their faith in Pakistan and while Shia face hostility from some extremist Sunni groups, the majority of targeted attacks are in the Federally Administered Tribal Areas, Khyber Pakhtunkhwa, Quetta and Balochistan, none of which were in the Punjab. The UK Home Office specifically states that sectarian violence against Shia has declined since 2013, a significantly longer period than 2017-2018.

64    It is clear that the Tribunal considered both BEQ19’s personal circumstances and relevant country information in forming its view as to the risk of serious or significant harm to BEQ19 if he were to be returned to Pakistan in the foreseeable future. While the focus of much of the country information was in the most recent period of 2017 and 2018, which is relevant to both immediate and foreseeable risk, it is also clear that the country information had a wider focus than just that period. The UK Home Office is a reputable source. It found that there was a decline in sectarian violence against Shia since 2013. The Tribunal was entitled to rely on that. Taken with the information in the DFAT report, it was indicative of a trend of decreasing risk for Shia in the area of the Punjab to which BEQ19 might be returned and in Pakistan generally, both of which were relevant to BEQ19’s claims.

65    Having considered these arguments, I will refuse BEQ19 leave to rely on the proposed fourth particular because:

(a)    In circumstances where BEQ19 was represented in the FCCA by the same counsel and solicitors as on appeal, both the failure to raise the proposed particular in the FCCA proceedings and the delay and extent of the delay in raising the proposed particular in this appeal are unexplained; and

(b)    The proposed fourth particular lacks sufficient merit to warrant consideration on appeal.

The first to third particulars

66    The remaining issue is whether the FCCA Judge committed an appellable error at J[59]-[61] (see [30] above) which raises the issues identified in [43(a)] and [43(b)] above.

67    I will address first the contention that the Tribunal in fact found that BEQ19 would be “safer” rather than “safe” if he returned to his home area in the Punjab. It is important to note at the outset that the test posed by s 36(2)(a) and (aa) of the Migration Act is not whether BEQ19 would be “safe”.

68    In CGA15 at [22]-[23] and [25]-[26], the Full Court said:

22.    To satisfy the refugee criterion under s 36(2)(a) of the Act the appellant was required to show that he has a “well-founded” fear of persecution for a Convention reason if he returns to his country of origin. A fear of persecution will be “well-founded” if there is a “real chance” that the applicant will suffer the claimed persecution in the reasonably foreseeable future. A “real chance” is a prospect that is not “remote” or “far-fetched”: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

23.    The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J.

…

25.    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) 264 CLR 421 at [4] and [41] (SZMTA) (Bell, Gageler and Keane JJ).

26.    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 at [30] (Mansfield J); see also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595 (Kirby J).

69    Importantly, the Full Court in CGA15 said the following, at [28]-[29] in dismissing the ground:

28.    It is central to our view that although the Tribunal expressed some findings as to the risk of harm the appellant would face in relative terms, it made other significant findings as to that risk in plainly objective terms. Importantly, the Tribunal found the following (at [40]):

…in general (other than in some areas, like the applicant’s region), there is a low risk of sectarian violence for Shias by militant groups and attacks against Ashura processions pose the greatest risk for most Shias. However, given the size and yearly frequency and the violence is mitigated by significant efforts of authorities to process processional routes and protection DFAT assesses the overall risk to be low.

(Emphasis added.)

29.    The Tribunal’s statement that the overall risk in areas outside the appellant’s home region is objectively low (as distinct from relatively low) reflects the information in the DFAT Thematic Report which said (at [4.4]), “[i]n general, DFAT assesses there is a low risk of sectarian violence for Shias” and (at [4.5]) that while attacks against Ashura processions pose the greatest risk for most Shias, “DFAT assesses the overall risk to be low”. The Tribunal’s finding at [40] is an important difference between the Tribunal’s findings in the present case and those in CID15. In our view the present case can be distinguished from CID15.

70    I do not accept that the Tribunal failed to consider whether there was a real chance or a real risk that BEQ19 would face serious or significant harm in the foreseeable future as a Shia returning to his home area in the Punjab for the reasons submitted by BEQ19 which are summarised at [38]-[41] above.

71    BEQ19’s submissions ignore these two things:

(a)    Aspects of the specific claims made by BEQ19 include that he would not be able to practise his religion in Pakistan and that Shia have been targeted all over Pakistan. These claims explain why the Tribunal considered country information with a wider scope than BEQ19’s home area in the Punjab; and

(b)    After addressing country information which indicated that the Shia population are spread through Pakistan (at D[65]), that Shia are not generally discriminated against in employment (unless they are ethnically affiliated in a way that BEQ19 is not) (at D[66]), and the information in the DFAT report addressing sectarian and other violence (at D[67]), the Tribunal recorded (at D[68]) DFAT’s assessment that “overall, most Shia in Pakistan face a low risk of sectarian violence and the risk can vary depending on geographic location and for members of specific [ethic] groups”.

72    In my view, on a fair reading of the Tribunal’s reasons and with an eye which is not attuned to the perception of error, the Tribunal’s reasoning from D[68]-[88] is designed to assess whether BEQ19’s risk varied from DFAT’s “overall” assessment (at D[68]) that most Shia in Pakistan face a low risk of sectarian violence. Accordingly, the Tribunal:

(a)    Immediately eliminated BEQ19 from being part of specific groups of Hazaras or Turis who faced a heightened risk (at D[68]);

(b)    Immediately eliminated BEQ19 from suffering “moderate risk” because he was not a high profile Shia, having regard to the Tribunal’s previous findings (at D[68]);

(c)    Acknowledged (at D[69]) that “security attacks can occur anywhere in Pakistan”; and

(d)    Focussed on the Punjab at D[69]-[71], [75], [78] and [85], the province in which BEQ19’s home area was located.

73    It is in that context that the Tribunal said (at D[69]) that the Punjab was “safer” than other areas of Pakistan, and went on to consider where in the Punjab sectarian tensions and violence were “prevalent” or “prominent” (at D[70]). D[75] and [78] are evidence of the decline in all kinds of violence in the Punjab.

74    Although the Tribunal did use relative terms in D[85], the assessment being made was clearly that BEQ19’s home area in the Punjab does not vary from the “overall” assessment in D[68] because it was not one of, nor was it adjacent to, an area which DFAT said that sectarian tensions and violence were prevalent. The Tribunal was entitled to:

(a)    Rely on the fact that there was nothing in the country information which indicated that BEQ19 would be at greater risk in his home area than the “norm” for Shia in Pakistan overall established in D[68];

(b)    Rely on the material in the UK Home Office report cited at D[80] which supported DFAT’s findings; and

(c)    To find, as it did at D[81], that BEQ19’s submissions about the security position in Pakistan were out of date.

75    I do not accept that the Tribunal fell into the error identified in CGA15 of using statistics not relevant to the area to which BEQ19 would return because it accepted BEQ19’s own contention that Shia were in a minority in his home area: see D[85]. That was a finding in BEQ19’s favour. In the absence of available statistics as to the relative number of Shia and Sunni in BEQ19’s home area (which BEQ19 did not provide and the Tribunal says it looked for but could not locate), it was rational for the Tribunal to assess BEQ19’s risk of persecution in his home area by reference to:

(a)    D[68], which BEQ19 acknowledges was taken into account in the findings at D[85] and D[88], see [39] above; and

(b)    The fact that his home area was not in or contiguous with an area in which sectarian tensions and violence were prevalent in the province which it found (at D[69]) was “safer” than any other in Pakistan.

76    I find no appellable error in the FCCA Judge’s approach at J[54]-[68] or findings at J[59]-[61]. In my view, the ground as pleaded in the notice of appeal is not made out.

Disposition

77    Leave to rely on the proposed further particular is refused. The appeal should be dismissed with costs.

Associate:

Dated:    20 June 2023