Federal Court of Australia
CFC16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1003
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: | 25 August 2023 |
THE COURT ORDERS THAT:
1. The name of the First Respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.
2. The Appellant has leave to rely on the Amended Notice of Appeal dated 31 May 2023.
3. The appeal be allowed.
4. Order 1 of the orders of the Federal Circuit Court of Australia, as it was then known, made 25 June 2018 be set aside, and in lieu thereof the Court orders that:
(a) the decision of the Second Respondent dated 14 July 2016 be quashed; and
(b) the Appellant’s visa application be remitted to the Second Respondent, differently constituted, to be re-determined according to law.
5. Unless, within 14 days either party files submissions in opposition to such orders, it is ordered that:
(a) Order 2 of the orders of the Federal Circuit Court of Australia made 25 June 2018 be set aside, and in lieu thereof there be no order as to the costs of the hearing before that court; and
(b) the First Respondent pay the Appellant’s cost of the appeal, to be the subject of a lump sum assessment by a Registrar in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MURPHY J:
1 The appellant appeals from a judgment of the Federal Circuit Court of Australia (FCC), as it was then known, dismissing his application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal dated 14 July 2016. The Tribunal had affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship and Multicultural Affairs), not to grant the appellant a protection visa for which the appellant had applied under s 65 of the Migration Act 1958 (Cth) (the Act).
2 The proposed amended notice of appeal raises one ground, which was not advanced before the FCC, and the appellant requires leave to raise a fresh ground. For the reasons I explain, it is appropriate to grant the appellant leave to amend the notice of appeal to raise the fresh ground, and to allow the appeal.
Background
3 The appellant arrived in Australia by boat, without a visa, on 21 July 2012. It is not in dispute that he is a citizen of Pakistan, of Bangash ethnicity and Shia Muslim faith, from a village near Parachinar in Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan.
4 On 18 December 2012 the appellant applied for a protection visa. He claimed that since 2007 there had been a series of violent attacks perpetrated by the Tehreek-e Taliban Pakistan (the Taliban) and other Sunni Muslim extremist groups against Shia Muslims in Kurram Agency, and that if he is returned to Pakistan he will face a real chance of suffering serious harm at the hands of the Taliban and/or other extremist Sunni groups on account of, taken individually or cumulatively:
(a) his Shia religion;
(b) his Bangash ethnicity;
(c) his imputed political opinion in opposition to the Taliban and/or other Sunni extremist groups on account of his Shia religion, his Bangash ethnicity or his origin from Parachinar, being a region which had been in a long-standing and violent conflict with the Taliban; and
(d) his membership of the social group of Bangash Shias from Kurram Agency.
The appellant contended that, having regard to the available country information, his fear of suffering persecution in Parachinar for such reasons was well founded.
5 The appellant lodged a statement dated 15 December 2012 in which he claimed that he had a successful tailoring business in Parachinar which employed four people. He said that, if not for the problems in Kurram Agency, he had a good life with a prosperous business, his having just married and having a one-year-old child. He said that the fighting between Sunni extremists and Shias in Kurram Agency started in 2007 after Shia elders of the region refused the Taliban permission to pass through Kurram Agency to go to Afghanistan to fight against NATO forces there. He claimed that:
(a) the Taliban threw hand grenades in the road in which his shop was located, killing five people. After that, there was fighting “everywhere” in Kurram Agency between Sunnis and Shias, including fighting in the mountains around his home village which lasted for 10 days. Two people he knew were killed near his village;
(b) over the following few years a pattern developed in which the fighting would stop for a few days and then start again. The roads were closed between Parachinar and Peshawar because of Taliban attacks, and it was dangerous for him to go to Peshawar to bring back goods for his shop. Schools and shops were closed, there were food shortages and the government encouraged people to stay at home;
(c) in February 2012 a bomb exploded 100 metres from the front of his shop, breaking the glass of his shop windows. 40 people were killed in that attack and his family feared that he had been killed. He and his family decided that it was not safe for him to stay in Kurram Agency so he began to plan his departure;
(d) on the day of his departure there was another bomb blast in Kurram Agency in which 15 more people were injured; and
(e) there was nowhere safe in Pakistan where he could safely live because his ID card identifies him as a Shia, his wife has never been to school and cannot speak Urdu, and wherever they went in Pakistan he and his family would clearly be identifiable as Shias from Parachinar, who have a long history of conflict with the Taliban.
The delegate’s decision
6 On 16 June 2014, a delegate of the Minister refused to grant the appellant a protection visa. The delegate said that the FATA had been dubbed as the “most dangerous place on earth”; accepted that Sunni militant organisations such as the Taliban had perpetrated numerous sectarian attacks in the FATA from 2012 to 2014 often by bomb blasts, Improvised Explosive Devices (IED) explosions and landmines; and accepted that there was a real chance that the appellant would suffer serious harm by sectarian violence if he returned to the Kurram Agency now or in the reasonably foreseeable future. The delegate, however, concluded that it was reasonable for the appellant to relocate to an urban centre in Pakistan, such as Rawalpindi or Islamabad, where the delegate considered he would not face such a risk. On that basis, the delegate was not satisfied that Australia owed protection obligations to the appellant, and refused to grant him a protection visa.
The application to the Tribunal
7 On 18 June 2014, the appellant applied to the Refugee Review Tribunal, as the Tribunal was then known, seeking review of the delegate’s decision.
8 On 18 January 2016, the appellant filed a statutory declaration made 13 January 2016 and pre-hearing submissions dated 18 January 2016. In his statutory declaration, the appellant stated that his wife, who was still living with her father in Parachinar, had informed him that the situation in Parachinar was still “very bad”. In support of that, he stated that in the previous month, December 2015, there had been a bomb attack in Parachinar in which “many people” had been killed or injured (December 2015 bomb attack). He said that he was “very concerned for my family, because they need to travel to Parachinar City for medical or other reasons, and they are at risk from such attacks.”
9 The appellant's pre-hearing submissions referred to a report of the Department of Foreign Affairs & Trade dated 14 April 2015 titled ‘DFAT Thematic Report - Shias in Pakistan’ (DFAT April 2015 Report) which said that there was “an improved security situation in Kurram Agency”. The appellant extracted part of the report, including the following:
[4.34] Ongoing counterinsurgency operations by the Pakistani security services against the TPP [the Taliban] and other militants in the FATA have resulted in a high level of generalised violence and widespread displacement of communities from the FATA. Many Shias sought support from relatives in neighbouring areas of Hangu, Kohat and Peshawar, and in Islamabad and its smaller satellite towns.
[4.35] DFAT understands of a 2013 truce (‘the Muree Agreement’) between the Shia Turi and the mostly Sunni Bangash communities in Kurram Agency is still in place (as of November 2014). The main road from Thal to Parachinar, Kurram Agency’s main town is open and is frequently used by civilian cars. Federal security forces maintained armed checkpoints on this road.
[4.36] Based on discussions with credible international non-government organisations, local representatives and residents, DFAT understands that more than 3,700 families formerly displaced from Kurram Agency have been able to return to their places of origin during 2014, including to Parachinar City and some surrounding villages in Upper Kurram. However, many Shia IDPs [Internally Displaced Persons] have remained in Kohat, Hangu, Peshawar and nearby Islamabad where they settled and have existing support systems.
[4.37] Overall, DFAT assesses that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas. However, the situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services.
(Emphasis added by the appellant.)
10 The appellant submitted that, notwithstanding the assertion in the DFAT April 2015 Report that the security situation in Kurram Agency had improved, independent and more recent country information supported the conclusion that Shias from the Turi and Bangash tribes continued to face a real chance of serious harm in Parachinar. In particular, the appellant relied on the December 2015 bomb attack in Parachinar, which had occurred just over a month earlier and which had resulted in multiple civilian deaths and injuries.
11 In support of that submission the appellant extracted a news report from The Guardian dated 14 December 2015 which carried the headline ‘Pakistan market bomb leaves 22 dead and scores wounded’ (the Guardian news report), and included the following:
A bomb explosion in a market has killed 22 minority Shia Muslims and wounded 45 others in Pakistan’s Kurram tribal region near the Afghan border, officials said.
The bomb exploded on Sunday when the market in the town of Parachinar was crowded with shoppers, said Mahtab Hussain, a local government official.
Husain said some of the critically wounded people were airlifted to hospitals in other cities.
All 22 killed were minority Shia Muslims, said another local government official, Nek Mohammad.
The explosion was caused by a remote-controlled bomb planted in the market, the two officials said.
Parachinar is the main town in Kurram, a predominantly Shia area that has been troubled by Islamic militant and sectarian violence. Pakistan’s military has carried out regular operations in the region to eliminate militants and control sectarian strife.
No one immediately claimed responsibility for the attack. Suspicion is likely to fall on al-Qaida and Pakistani Taliban-linked Sunni militant groups, who consider the Shias to be heretics.
The Taliban and allied Islamic militants have been waging a war against the state for over a decade, killing tens of thousands of people.
12 The appellant submitted that “[t]he sectarian extremist group Lashkar-e Janghvi (LeJ) has claimed responsibility for the attack, stating that it was directed against Shias. LeJ also threatened further such attacks on Pakistan’s Shia community.”
13 The appellant also extracted:
(a) a news report by AAJ News (Pakistan) dated 14 December 2015 which carried the headline ‘LeJ claims responsibility for Parachinar blast’ (the AAJ news report), and included the following:
PARACHINAR: Lashkar-e-Jhangvi claimed responsibility on Sunday for a bomb blast that killed 24 people at a crowded bazaar in a predominantly Shia area of Parachinar.
The Sunni organisation said they had planted an IED (improvised electronic device) at the Eidgah used-clothes market in Parachinar city in retaliation for Shia support of Iran and Bashar al-Assad.
“We warn the Shia parents that if they don’t stop their children from participating in the war of Bashar al-Assad, they would face more attacks like this,” Ali Bin Sufiyan, believed to be a spokesman for Lashkar-e-Jhangvi, said in a message to the media.
The Kurram tribal district where the attack took place is known for sectarian clashes between Sunnis and Shia….
(Emphasis by the appellant.)
(b) a BBC News report dated 14 December 2015 which carried the headline ‘Pakistan Kurram - market bombing funerals held’ (the BBC news report), and included the following:
A hard-line Sunni militant group in Pakistan, Lashkar-e Janghvi, says it was behind the bombing and linked its attack to the war in Syria, saying it was in revenge for killings carried out by the Syrian president and his Iranian allies.
The Reuters news agency reported on Thursday that a unit of Shia Pakistani fighters, many from Parachinar, is in Syria. They were, the report said, recruited by Iran to fight for President Bashar al-Assad against Syria’s mostly Sunni rebel forces.
(Emphasis added.)
14 The appellant submitted that the December 2015 bomb attack was “a clear indication that sectarian violence is still a significant issue in Parachinar and that Shia civilians are still at very high risk.” He said that Shia civilians were plainly the target of the attack and noted “that further attacks have been threatened”. He submitted that the bombing indicates that “despite a reprieve, sectarian violence against civilians is likely to continue in Parachinar.”
15 The appellant also relied on:
(a) a Tribunal decision in 1401227 [2015] RRTA 311 at [16]-[17] in which the Tribunal accepted that generalised sectarian violence against Shias in Kurram Agency was ongoing through 2013 and 2014, and accepted that it represented a real risk of serious harm to the Shia applicant in that case;
(b) various pieces of ‘country information’, including:
(i) a report by the South Asia Terrorism Portal, ‘FATA 2015 Assessment’ (SATP 2015 Report), which amongst other things said that despite a lower number of fatalities in 2014, the number of fatalities rose again in the first part of 2015;
(ii) a US Department of State report, ‘Country Reports on Human Rights Practices for 2014 – Pakistan’, which amongst other things said that militant and terrorist activity continued throughout 2014, and there were numerous suicide and bomb attacks in all four provinces of the FATA, killing hundreds and injuring thousands with bombs, suicide attacks, and other forms of violence; and
(iii) a US Department of State report, ‘International Religious Freedom Report for 2013 – Pakistan’, which amongst other things said that during that year there were “continued attacks and killings of members of the Shia Muslim community that authorities failed to prevent or punish” and that 504 Shia Muslims were killed in sectarian violence across the country, while another 965 were injured.
16 The appellant submitted that, having regard to the country information, it was clear that the Taliban and other Sunni extremists groups remained powerful and were actively targeting Shia civilians, and that “in the context of a protracted and brutal conflict, with cycles of violence and fluctuations in casualties” a decline in civilian casualties in 2014 should not be relied on for a conclusion that the appellant would no longer face a real chance of suffering serious harm if he returned to Kurram Agency. He contended that was all the more clear considering that civilian casualties appeared to rise again in 2015, and in view of the significant bomb attack in Parachinar in December 2015.
17 The Tribunal heard the application on 21 January 2016. The appellant was legally represented in the hearing, and gave evidence before the Tribunal, assisted by a Pashto interpreter.
18 The Tribunal decision records that the member read to the appellant some extracts from a very recent DFAT report dated 15 January 2016, ‘DFAT Thematic Report – Shias in Pakistan’ (January 2016 DFAT Report), which, broadly, indicated a “low level” of sectarian violence in Kurram Agency.
19 Following the hearing the appellant filed post-hearing submissions responding to some of the conclusions in the January 2016 DFAT Report, including by:
(a) stating that the news reports the appellant extracted in his pre-hearing submissions showed that the December 2015 bomb attack in Parachinar was “clearly directed against Shias”;
(b) noting DFAT’s view that the December 2015 bomb attack highlighted a degree of vulnerability in security measures along the Thal-Parachinar road;
(c) submitting that the return of internally displaced persons to the FATA did not provide strong evidence of a sustained improvement to the security situation, in light of the report’s finding that their situation in the FATA was “highly precarious”, and contending that their return could not be taken to indicate more than a very basic, and possibly temporary, improvement in the general security situation; and
(d) submitting that the December 2015 bomb attack showed that, despite a period reduced violence, violence against Shias was ongoing and could quickly rise again, and that the chance of his suffering serious harm if he returned to Parachinar in the reasonably foreseeable future could not be said to be remote.
20 The balance of the appellant’s post-hearing submissions were directed to the issue of whether it was reasonable for the appellant to relocate to Islamabad or Rawalpindi, which is not relevant in the appeal.
The Tribunal decision
21 On 14 July 2016, the Tribunal decided to affirm the delegate’s decision not to grant the applicant a protection visa and published reasons for that decision. The Tribunal accepted the appellant’s claims (at [33]-[38]):
(a) as to his identity, that he had a tailoring business in Parachinar, and that he is a citizen of Pakistan of Bangash ethnicity and Shia faith from a village near Parachinar in Kurram Agency;
(b) regarding the deterioration in the security situation in Parachinar from 2007, culminating in the bomb blast which occurred around 100 metres from his shop in February 2012 in which 40 people were killed, and which led to his decision to leave Pakistan; and that there was another bomb blast on the day in which he was due to leave Parachinar, in which 13-14 people were injured; and
(c) that there was a bomb attack in December 2015 in Parachinar in which 22 Shias were killed and many others injured.
The Tribunal noted that the appellant relied on the December 2015 bomb attack as evidence of an ongoing risk to his safety in Kurram Agency.
22 The Tribunal accepted that there had been sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counter-insurgency campaigns (at [39]). The Tribunal noted that while the appellant had been close to incidents such as bomb blasts in the past, he had not been specifically threatened or targeted by Sunni militant or terrorist groups because he is Shia or for any other reason, nor had any of his family members.
23 Having regard to the fact that the appellant had not been specifically threatened or targeted by Sunni extremists, to assess whether the appellant faced a real chance of serious harm the Tribunal turned to consider the country information regarding the general security situation for Shias in Kurram Agency (at [40]-[51]). The Tribunal referred to the appellant’s evidence and submissions, and to the independent country information including to:
(a) the April 2015 DFAT report (at [41]);
(b) the December 2015 bomb attack in Parachinar (at [41]);
(c) the May 2015 Tribunal decision on which the appellant relied (at [41]);
(d) the SATP 2015 Report (at [42]); and
(e) the appellant’s post-hearing submission that recent assessments of sectarian violence in Kurram Agency must be considered in light of the protracted conflict in the region, which, over time, had seen fluctuations in levels of violence and casualties, and that the December 2015 bombing reflected that despite a period reduced violence against Shias, the risk remained ongoing and “can quickly rise again” (at [43]).
24 The Tribunal accepted (at [44]) that country information shows that:
… Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban.
25 The Tribunal accepted that there had been numerous “security incidents” in Kurram Agency in 2012 and 2013, but considered that there was “credible information that indicates that the situation is improved in the FATA, including Kurram Agency”. The Tribunal went on to refer to that country information, including:
(a) a FATA Research Centre (FRC) ‘Annual Security Report 2014’, which said that the Kurram Agency remained “comparatively quiet” (at [45]);
(b) an UNHCR Protection Cluster Report, ‘Protection mission to Kurram 22 - 26 April 2014’, which said that “general peace” had been restored in Upper and Lower Kurram (at [45]);
(c) an UNHCR Protection Cluster report, ‘Post-return monitoring in areas of return Sholzan Tangi, Upper Kurram agency - June 2014,’ which said that key informants in the five relevant villages showed satisfaction in relation to the security situation in the area and that at that time they felt “feel safe and secure” in the area (at [45]-[46]);
(d) a FRC report, ‘Annual Security Report 2015’, which reported a significant decline in terrorism-related incidents in the tribal areas of the FATA. The report said that there had been “a surge in militancy related incidents” in Kurram Agency during the first quarter of 2015 and a “nose dive” in such incidents in the second quarter. It also said that although Pakistani government military operations had largely dismantled militant networks in Kurram Agency, militants under the banner of the Taliban were still operational in different areas. The report also recorded a surge in militant activities in the last two quarters from July to December 2015 with:
(i) the third quarter having six militancy and counter militancy incidents (being around 50% more incidents than the second quarter) resulting in 20 killings and 8 serious injuries; and
(ii) the fourth quarter having nine militancy and counter militancy incidents (being around 33% more incidents than the third quarter) resulting in 35 killings and 71 critical injuries (at [47]); and
(e) the SATP 2015 Report which recorded a seven year decline in civilian and security force fatalities in the FATA, that suicide attacks, explosions and sectarian attacks remained low throughout 2014 with significant relief from both suicide attacks and incidents of explosion, and that sectarian violence in the region also registered a “steep decline” (at [48]);
26 The January 2016 DFAT Report is not in the materials before the Court, but it was summarised by Tribunal in the following terms (at [50]-[51]):
[50] The most recent DFAT report on Shias in Pakistan, dated 15 January 2016, also indicates that the security situation in Kurram Agency has improved, commenting that:
• According to the FATA Research Centre (‘FRC’), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015.
• The 2013 ‘peace accord’ between Shia Turis and Sunni Bangash remains in place.
• DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015.
• Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.
• More than 3,700 families returned to their places of origin in 2014, including Parachinar and surrounding villages in upper Kurram. This represents approximately 25 per cent of those formerly displaced - most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October – November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.
• According to the SATP, there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight.
• FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.
• DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb.
• DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.
[51] Significantly, this report records a change from the previous report of April 2015 in DFAT’s assessment of both the risk of sectarian violence in the FATA (from moderate to low) and the level of generalised violence in the FATA (from high to variable throughout the FATA but low in Kurram Agency)…
27 The Tribunal said (at [53]) that it had regard to the appellant’s concerns and submissions about the conflict going through phases. It accepted that “the situation can change and fluctuate” and that “there is an element of vulnerability in the government security measures, as evidenced by the December 2015 attack in Parachinar”. However, having regard to the 2016 DFAT Report and the other country information to which it had referred, the Tribunal said that “the country information indicates that a level of security been restored to Kurram Agency”.
28 The Tribunal’s reasons at [54] are central in the appeal. There the Tribunal said:
The Tribunal accepts that, as indicated by the applicant, there continues to be incidents of sectarian violence in FATA, including in Kurram Agency where the applicant’s home village of [redacted] is located. The IED attack in a clothes market in Parachinar on 13 December 2015 in which at least 25 people were killed and over 70 injured, as highlighted by the applicant and his representative, is evidence of this. Nonetheless, the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable, with the exception of incidents like those referred to in the reports by the FATA Research Centre. In this context the Tribunal considers it would be premature to conclude that the attack on 13 December 2015, the first such attack in Parachinar for almost two and a half year, marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before it concerning the security situation in and around Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is not more than a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future.
29 The Tribunal went on (at [55]) to accept DFAT’s assessment “regarding the risk of generalised sectarian violence in the FATA” and to accept that “there is some level of risk for the appellant in the context of generalised violence”. The Tribunal though concluded that such a risk was remote, and did not accept that there was a real chance that the appellant would be targeted for harm by reason of his Shia religion, Bangash entity or his imputed political opinion of opposition to the Taliban and/or other Sunni extremist groups. The applicant had not however made a claim that he had or would be targeted for harm by Sunni militants.
30 The Tribunal accepted (at [56]) that “there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured.” The Tribunal found, however, that “overall the country information indicates that the violence from the Taliban and sectarian violence had decreased in the region, particularly from 2014 onwards.” In circumstances where the appellant did not contend that he had been specifically threatened or targeted by Sunni extremists, the Tribunal found that there was only a remote chance that on return to Kurram Agency the appellant would be seriously harmed by the Taliban or other Sunni extremist groups, former Sunni neighbours or anyone else for reasons of his Shia religion, Bangash ethnicity, imputed political opinion of opposition to the Taliban and/or other Sunni extremist groups, or because he is seen to be a member of the social group comprising Bangash Shias from Kurram Agency. On that basis the Tribunal said that the appellant was not a person to whom Australia owed protection obligations and affirmed the delegate’s decision not to grant him a protection visa.
31 The Tribunal said (at [58]) that it “gave weight to the significant improvement in the situation in Parachinar since the applicant left in 2012, as indicated by the country information discussed above”. It said that it gave “particular weight” to DFAT’s advice that:
(a) the 2013 ‘peace accord’ between Shia and Sunni tribes remains in place;
(b) DFAT assesses that there is a low level of sectarian violence overall in the FATA and a low level of generalised violence in Kurram Agency; and
(c) the Thal-Parachinar Road remains open; that federal security forces continue to maintain armed checkpoints along the road and there were no major security incidents on the road in 2015, which indicates that Kurram Agency is no longer cut off from the rest of Pakistan.
It found that the applicant would not face a real risk of serious harm working in Parachinar or elsewhere in Kurram Agency.
32 The Tribunal concluded (at [59]) that it was not satisfied that the appellant had a well-founded fear of persecution for any of the claimed reasons now or in the reasonably foreseeable future. The Tribunal was therefore not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees’ Convention, and concluded that he does not satisfy the refugee criterion in s 36(2)(a) of the Act. For the same reasons (at [60]-[63]) the Tribunal did not accept that the applicant had an entitlement to complementary protection under s 36(2)(aa) of the Act.
The application for judicial review
33 On 11 August 2016, the appellant filed an originating application in the FCC seeking judicial review of the Tribunal’s decision. On 28 May 2018, the appellant filed an amended application which alleged that the Tribunal erred by misunderstanding or misapplying the definition of “refugee” in the Refugees’ Convention and therefore the visa criterion in s 36 of the Act. Essentially, the application alleged that the Tribunal misunderstood the “real chance” test and required the appellant to establish a “definite” departure from what had been a period of relative quiet or relative calm in Kurram Agency from 2013 to 2015.
34 On 25 June 2018, the primary judge held that the appellant had not established jurisdictional error by the Tribunal and dismissed the application. There is no utility in my setting out the primary judge’s reasons because the only ground in the proposed amended appeal was not raised before the FCC.
THE APPEAL
35 On 9 October 2018, the appellant filed a notice of appeal alleging that the Tribunal had fallen into jurisdictional error, and that the primary judge erred in failing to so find on the grounds of review raised.
36 Following the appointment of pro bono counsel to represent him in the appeal, the appellant filed an amended notice of appeal dated 31 May 2023 in which the appellant abandoned the existing grounds of appeal and alleged the following new ground:
The Tribunal erred in its statutory task by denying the applicant procedural fairness by failing to deal with relevant, recent, and/or contradicting, country information relating to the chance of harm to Shia Muslims in the Kurram Agency, having found that the Applicant was a Shia Muslim from the Kurram Agency.
37 The substance of the new ground, in brief, is that the Tribunal fell into jurisdictional error by failing to deal with the appellant’s pre-hearing submissions and evidence to the effect that the Sunni extremist group LeJ had claimed responsibility for the December 2015 bomb attack in Parachinar, and had threatened that it would launch further attacks unless Shias ceased their participation in the war in Syria in support of President Bashar al-Assad.
LEAVE TO RELY ON A FRESH GROUND OF APPEAL
38 The appellant requires leave before he may advance a ground of review for the first time on appeal.
39 In CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818 at [19]-[22] I discussed the authorities in relation to leave to advance a fresh ground on appeal. As I said there, it is established that where a fresh ground of appeal could not have been met by calling evidence in the hearing below, an appellate court has a discretion to permit an appellant to argue the new issue on appeal where it considers it to be expedient and in the interests of justice to entertain the issue: Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). Generally speaking, the court is more likely to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy: O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 (Mason J); Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 317 ALR 665 at [126]-[131] (Tracey, Gilmour, Jagot and Beach JJ).
40 The relevant principles were discussed in the context of migration appeals in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] (Kiefel, Weinberg and Stone JJ), and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166]-[167] (Madgwick J, with whom Conti J agreed). In NAJT (at [166]) Madgwick J set out a useful non-exhaustive list of considerations that may be relevant to a grant of such leave.
41 Having regard to the principles and relevant considerations referred to above I am satisfied that it is expedient and in the interests of justice to grant leave to the appellant to advance the proposed fresh ground. Accordingly, I granted leave to amend the notice of appeal in the terms of the proposed amended notice of appeal filed by the appellant.
42 First, the proposed new ground is not one which could have been met by calling evidence below, and the facts are not in controversy. The fresh ground concerns whether the Tribunal fell into jurisdictional error by failing to deal with part of the appellant’s evidence and submissions, and the issue is one of law rather than fact.
43 Second, the appellant contends that he faces a real chance of suffering serious harm or death if he returns to Pakistan and in deciding whether or not to grant leave it is important to take into account the serious consequences that may attend the wrongful refusal of a protection visa: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); SZEPN v Minister for Immigration and Multicultural Affairs [2006] FCA 886 at [16] (Branson J); SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [9] (Flick J); CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362 at [36] (Murphy, Mortimer and O’Callaghan JJ); and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [56]-[58] (Mortimer J).
44 Third, the merit of the proposed fresh ground is an important consideration. In ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25] Mortimer J (as her Honour then was) said:
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.
Her Honour’s remarks were approved by the Full Court in Okoh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 53 at [69] (Thomas, O’Bryan and McElwaine JJ)).
45 The Minister accepted that the issue of merit is likely to be the primary determining factor on the question of leave. In deciding whether to grant leave, the Court is not obliged to enter into a full consideration of the proposed ground It is sufficient to determine whether the proposed new ground sought to be raised is reasonably arguable, or that the appellant has raised a respectable argument in that regard: Iyer at [24]; NAJT at [167]; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 140 at [13]-[14] (Yates, Bromwich and McElwaine JJ). That is not to suggest that an assessment at that level will always be sufficient. There may be circumstances in which a more detailed assessment is appropriate: see Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [18]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
46 I am satisfied that the proposed new ground of appeal is reasonably arguable. Indeed, for the reasons I later explain, I consider it appropriate to allow the appeal on the basis of the new ground.
47 Fourth, if leave is granted to advance a new ground on appeal, the Minister’s only right to appeal is by way of an application for special leave to the High Court, and the Minister will therefore be denied a level of appellate scrutiny: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452 at [14] (Perram J). There is some prejudice for the Minister in that, and also some wastage of costs, but I do not consider those matters outweigh the factors in favour of a grant of leave. In this case, the dislocation for the Court and inefficiency in the use of judicial sitting time is insubstantial. The appellant’s fresh ground is narrow, the parties’ written submissions were short, and the appeal took under two hours to hear.
48 Fifth, the fresh ground of appeal was only advanced upon Mr Hugh Crosthwaite of counsel accepting a pro bono referral for legal assistance under r 4.12 of the Federal Court Rules 2011. Understandably, Mr Crosthwaite could not explain why the appellant’s former lawyers did not advance the proposed ground before the FCC. I infer that the availability of the ground was not apparent to the appellant’s former lawyers. Even so, leave to advance a fresh ground of appeal may be granted even when all that can be said by way of explanation is that its significance may not have been apparent to the appellant’s previous lawyers: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J); approved in CGA15 at [37].
49 I would be reluctant to refuse leave to advance a meritorious ground of appeal merely because there is no reasonable explanation for the failure to advance it earlier, or the explanation is only that there has been a change of legal representation. After all, the function of this court on judicial review, including on appeal, is to ensure the exercise of administrative power occurs lawfully and by a fair process: CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [14] (Mortimer J, as her Honour then was). And the issues surrounding whether a protection visa was wrongly refused involve questions as to whether a person has a real chance of suffering serious harm, and may involve questions of life or death.
ANALYSIS
50 The appellant contends that, in performing its assessment of whether the appellant had a well-founded fear of persecution, the Tribunal fell into jurisdictional error by failing to deal with his evidence and submissions:
(a) in his statutory declaration, his evidence that on 13 December 2015 a bomb exploded in a market in Parachinar in Kurram Agency, which killed 24 Shia Muslims and wounded up to 70 others;
(b) in his pre-hearing submissions, that:
(i) the “sectarian extremist group [LeJ] has claimed responsibility for the attack, stating that it was directed against Shias. LeJ also threatened further such attacks on Pakistan’s Shia community”; and
(ii) the “attack is a clear indication that sectarian violence is still a significant issue in Parachinar and that Shia civilians are still at very high risk. Shia Muslim civilians of Parachinar were indisputably the target of this attack, and further attacks have been threatened.”
(Emphasis added.)
(c) in extracts of news reports he provided in his pre-hearing submissions, being:
(i) an AAJ news report (set out above at [15(a)]) which noted that LeJ had claimed responsibility for the bomb blast at the market in Parachinar “in retaliation for Shia support of Iran and Bashar al-Assad”, and included the express statement to the media by an LeJ spokesman:
We warn the Shia parents that if they don’t stop their children from participating in the war of Bashar al-Assad, they would face more attacks like this.
(Emphasis in appellant’s pre-hearing submissions.)
(ii) the BBC news report (set out above at [15(b)]) which included the following:
A hardline Sunni militant group in Pakistan, [LeJ], says it was behind the bombing and linked its attack to the war in Syria, saying it was in revenge for killings carried out by the Syrian president and his Iranian allies.
The Reuters news agency reported on Thursday that a unit of Shia Pakistani fighters, many from Parachinar, is in Syria. They were, the report said, recruited by Iran to fight for President Bashar al-Assad against Syria's mostly Sunni rebel forces.
(Emphasis added.)
(the relevant material).
51 The appellant argues that the Tribunal’s reasons are silent in relation to the appellant’s clear submission that LeJ had threatened further attacks on Shias in Kurram Agency, and the news report supporting that submission. He contends that the Tribunal erred by overlooking or ignoring the claim raised by the relevant evidence and submissions and thereby failed to accord him procedural fairness.
52 The Minister argues that in order to show that the Tribunal erred by overlooking or failing to consider the issue raised by the relevant material the appellant must show that:
(a) the Tribunal in fact failed to consider the issues, citing Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [53] (Kenny, Griffiths and Mortimer JJ); and
(b) the issue was of sufficient importance that the failure to consider it amounted to a failure to perform the Tribunal statutory task, citing MZYTS at [70] approving Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111] (Robertson J).
53 The Minister submits that the issue raised by the relevant material was relatively unimportant in the context of the Tribunal’s findings, which provides much of the explanation for why the Tribunal did not explicitly refer to it, and contends that is sufficient to answer the appeal. In the alternative, the Minister submits that the Court should infer that the relevant material was in fact considered by the Tribunal.
54 The Minister says, and I accept that the Tribunal gave consideration (at [38]-[56]) to whether, notwithstanding a significant bomb attack in Parachinar in December 2015, the security situation had improved in Kurram Agency, and if so to what extent. The Tribunal did so as part of the predictive exercise of determining whether, if the appellant returns to that area, he will face a real chance of suffering serious harm now or in the reasonably foreseeable future because of sectarian violence by Sunni extremist groups.
55 I also accept the Minister's submission that the Tribunal’s finding (at [54]) was not that if the appellant returned to Parachinar there was no chance that he would suffer serious harm at the hands of Sunni extremist groups, but rather that having regard to country information about the security situation in and around Parachinar, and in the Kurram Agency more generally, the Tribunal considered that there was “not more than a remote chance” that the appellant would be killed or injured in terrorist attacks now or in the reasonably foreseeable future. The Tribunal reached that finding based on country information about a changed situation in Kurram Agency, which included specific references to the December 2015 bomb attack (at [41], [53] and [54]). The Tribunal found (at [54]) that “it would be mere speculation to find on the evidence before it that [the December 2015 bomb attack] means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally…”.
56 The Minister contends that the appellant’s argument seeks to elevate the fact that the Tribunal did not refer to the issue raised by the relevant material to the status of a critical matter that the Tribunal was required to expressly refer to and dispose of in its reasons. The Minister says that problem with that argument is that it fails to recognise that the Tribunal accepted (at [54]) that “there continues to be incidents of sectarian violence in the Kurram Agency” and the Tribunal expressly referred to the December 2015 bomb attack as evidence of that.
57 On the Minister’s argument, because the Tribunal accepted that incidents of sectarian violence continue to occur in Kurram Agency, it was unnecessary for it to explicitly refer to the issue raised by the relevant material, which went to the risk of future incidents of sectarian violence there. Relatedly, the Minister says that once the Tribunal had accepted that there was a risk of sectarian violence in the future from one or other Sunni extremist groups, it did not matter which group it was. The Minister argues that it was unnecessary for the Tribunal to then go on and deal explicitly with the threat of future violence from a particular group, such as LeJ. On that basis, the Minister contends the absence of express reference to the issue raised by the relevant material does not demonstrate that the Tribunal failed to consider the relevant material or that any claim made by the appellant was left unresolved.
58 I take a different view.
59 The appellant’s submissions and evidence raised a claim that LeJ perpetrated a major bomb attack in Parachinar on 13 December 2015, which killed 24 people and injured about 70 others; the attack followed a news report that a unit of Pakistani Shias were fighting in the war in Syria in support of President Assad and against largely Sunni militia; LeJ had specifically threatened further attacks on Pakistani Shias unless they stopped fighting in that war; the war in Syria had not stopped and there was nothing to indicate that Pakistani Shias had ceased fighting there; and by the date of the Tribunal hearing only just over a month had elapsed since LeJ had threatened further attacks.
60 The possible significance of the claim was the specific threat by LeJ; the fact the threat was made following LeJ’s claimed perpetration of the bomb attack; that there was nothing to show that Pakistani Shias had ceased fighting in Syria; and that given that only a month had passed since the threat, it could not be known whether the LeJ would carry through on its threat. Its possible significance included that the involvement of Pakistani Shias in the bitter war in Syria was another flashpoint for sectarian violence by Sunni extremist groups against Shias in Kurram Agency, different from the cause that the Tribunal recognised as the basis of the conflict between Sunni extremist groups and Shias when the violence in Kurram Agency began in 2007. That is, it was another reason why Sunni extremist groups had and might again perpetrate attacks in Kurram Agency.
61 The task for the Tribunal involved a predictive exercise as to whether on return to Kurram Agency, the appellant would face a real chance of suffering serious harm now or in the reasonably foreseeable future as a result of sectarian violence by Sunni extremist groups. That task necessarily involved speculation as to circumstances in the future on the basis of material in the present, and what had happened to the appellant and other Shia Muslims in Parachinar, and more generally in Kurram Agency, in the past: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 571-573.
62 The Tribunal’s reasons show that it understood that the appellant submitted that the December 2015 bomb attack had occurred (at (54]); that LeJ had claimed responsibility for that attack and claimed that it was directed against Shias (at [41]); and that the appellant relied upon the bomb attack as evidence of an ongoing risk to his safety (at [38]). The Tribunal understood that the appellant claimed that, as a Shia of Bangash ethnicity with an imputed opinion of opposition to the Taliban and/or other Sunni extremist groups, if he returns to Kurram Agency, he will face a real chance of suffering serious harm from generalised sectarian violence by Sunni extremist groups.
63 The Tribunal also understood the appellant’s submissions that:
(a) in the context of a protracted and brutal conflict, with cycles of violence and fluctuations in casualties, a decline in civilian casualties in 2014 should not be relied on for a conclusion that the appellant would no longer face a real chance of suffering serious harm if he returned to Kurram Agency” particularly when civilian casualties appeared to rise again in 2015, and in view of the significant December 2015 bomb attack; and
(b) the December 2015 bomb attack showed that, despite a period reduced violence, violence against the Shia community was ongoing and could quickly rise again.
The Tribunal’s reasons show that it understood those submissions, but reached different findings to those contended for by the appellant.
64 The Tribunal concluded (at [54]) that, notwithstanding the December 2015 bomb attack, the weight of the evidence indicated that there had been a “sustained improvement” in the security situation. It found that it would be premature to conclude that the bomb attack, the first in Parachinar in almost two and a half years, marked a “definite change in the security situation”. It accepted DFAT’s assessment regarding the risk of generalised sectarian violence in the FATA (at [55]) and found that there was some level of risk for the appellant in the context of generalised violence but concluded that such a risk was remote.
65 There remains, however, a question as to whether in reaching those findings the Tribunal considered and dealt with the claim raised by the relevant material. Having regard to that claim and its possible significance the Tribunal was in the unusual position of having evidence and submissions as to the recent, express future persecutory intentions of a Sunni extremist group, in circumstances where the future actions of such groups was the source of the appellant’s claim to have a well-founded fear of persecution.
66 The appellant has the onus of persuading the Court that the correct inference to be drawn is that the reason why that claim was not mentioned by the Tribunal is because the Tribunal ignored or failed to consider it, rather than, for example, because the Tribunal gave the evidence or submissions no weight, or thought it unnecessary to refer to.
67 The Tribunal was required to scrutinise the appellant’s evidence and submissions and attribute whatever weight or persuasive quality it thought appropriate, with the weight to be afforded to relevant material being a matter for it: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). It was not however necessary for the Tribunal to refer to every piece of evidence and every contention made by the appellant. Further, there is a distinction between the omission of a matter from a Tribunal’s reasons indicating that the Tribunal did not consider the matter to be material, and an omission indicating that the Tribunal did not consider the matter at all: Minister for Immigration and Citizenship v SZGUR [2011] HCA1; 241 CLR 594 at [31] (French CJ and Kiefel J with Heydon and Crennan JJ agreeing). There is a distinction too between a Tribunal failing to avert to evidence or representations which, if accepted, might have led to it making a different finding of fact, and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a reason set out in the Refugees' Convention.
68 The Tribunal is an administrative body rather than a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). And in this case the Tribunal’s reasons are comprehensive and at least identify the issue, such that an inference that the Tribunal overlooked the claim is not too readily to be drawn: Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ).
69 None of that, however, contradicts the established principle that if review of the Tribunal’s reasons discloses that it ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument, misunderstood the applicable law, or misunderstood the case being put by the appellant, that may show jurisdictional error: Plaintiff M1/2021 at [27].
70 Here, the Minister does not argue that the Tribunal did not refer to the claim raised by the relevant material because it attributed no weight to it. Nor does the Minister argue that the Tribunal did not refer to that claim because it was not a substantial and clearly articulated claim. Rather, the Minister submits that the issue was relatively unimportant in the context of the Tribunal’s findings, which provides much of the explanation for why the Tribunal did not explicitly refer to it. In the alternative Minister submits the Court should infer that the Tribunal did actually consider the issue. Both of those arguments should be rejected.
71 The Tribunal was required to undertake the necessary predictive exercise with consciousness and consideration of the submissions, evidence and material advanced by the appellant. If the Tribunal proceeded without being consciously aware of the purport of particular representations by the appellant and their possible significance, such that the Tribunal proceeded without a proper awareness and understanding of what was being put forward and therefore without a proper appreciation of the matters that might bear upon its decision, then jurisdictional error may be demonstrated: MZYTS at [38]; ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [9] (Mortimer J, Colvin and O’Sullivan JJ).
72 In Applicant WAEE at [47] the Full Court explained:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(Emphasis added.)
73 The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: MZYTS at [49] citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present, and what is absent, from the reasons may in a particular case enable a Court on review to find jurisdictional error: MZYTS citing Yusuf at [10], [44], [69].
74 Here, in reaching the finding that there was no more than remote chance of the appellant suffering serious harm on return to Kurram Agency, the Tribunal’s reasons said little or nothing to show that it was consciously aware of the purport of the claim raised by the relevant material and its possible significance nor that it considered, evaluated, and dealt with that claim.
75 Here, the claim to which the Tribunal did not refer is not, as in SZGUR, a procedural issue. It was important to the appellant’s assertion of a well-founded fear of persecution. I can see little merit in the Minister’s argument that the Tribunal did not refer to it because it was “relatively unimportant in the context of the Tribunal’s findings”. The relevant claim related to the central issue before the Tribunal – the risk of further major attacks by Sunni extremist groups in Kurram Agency. It raised a specific threat by a Sunni extremist group that had just perpetrated a major attack, that it would again attack Pakistani Shias in Kurram Agency unless they ceased fighting in Syria and they had not done so, and the threat was very recent. Given that only a month had passed since the threat, it could not be known whether LeJ would carry out its threat. Its possible significance included that the involvement of Pakistani Shias in the war in Syria was another and different reason why Sunni extremist groups had and might again perpetrate attacks in Kurram Agency. It was a claim that should have been expressly dealt with by the Tribunal. That claim, if resolved in the appellant’s favour, might have been dispositive of the Tribunal’s review. In those circumstances, the Tribunal’s failure to deal with it in its reasons raises a strong inference that it overlooked or failed to consider the issue: Applicant WAEE at [47].
76 Contrary to the Minister’s alternative argument, on a fair reading of the Tribunal’s reasons, I do not infer that the Tribunal considered and evaluated the appellant’s claim that he faced a real chance of suffering serious harm on return to Kurram Agency because LeJ had perpetrated a major attack just over a month earlier, had threatened further attacks in that area unless Pakistani Shias ceased fighting in Syria and they had not, and LeJ might strike again, but instead preferred other evidence or country information. The Tribunal only considered the December 2015 bomb attack as an incident of sectarian violence, and considered whether that incident pointed to an increased risk of sectarian violence in the future. It did not, in that context, refer to or consider the express threat by LeJ, made just over a month before the Tribunal heard the appellant’s application.
77 Consideration of the appellant’s claim would have involved the Tribunal in articulating the different effects of the conflicting material before it and explaining why the Tribunal preferred some country information over the information raised in the relevant material: MZYTS at [50]. The claim raised by the relevant material contradicted the inferences which the Tribunal drew from the January 2016 DFAT Report, and the Tribunal was required to weigh that contradictory evidence and claims, yet there is little or nothing to show that it did so: Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [63] (Gordon, Robertson and Griffiths JJ). In the particular circumstances of the appellant’s claim, if the relevant claim and its possible significance had been considered by the Tribunal, one would expect that the Tribunal would have referred to it, even if to reject it. In this case, the absence of any consideration of the relevant claim is indicative of overlooking or omission, not weighing or preference.
78 The Minister seeks to rely on the fact that the Tribunal noted (at (41]) that in his pre-hearing submissions the appellant said that LeJ had claimed responsibility for the December 2015 bomb attack and that it was directed against Shias, and that the Tribunal later found that sectarian violence against civilians was likely to continue in Parachinar. The Minister argues that is enough to show that the Tribunal understood and evaluated the submission that sectarian violence was likely to continue because there had been threats of it occurring. I disagree. Had the Tribunal been consciously aware of the purport and possible significance of the relevant claim, and evaluated it, I expect the Tribunal would have weighed and evaluated the conflicting material. It did not deal with the specific and very recent threat by LeJ, which had just perpetrated a major attack, that it would again attack Pakistani Shias in Kurram Agency unless they ceased fighting in Syria and they had not done so. Nor did it deal with the claim that the involvement of Pakistani Shias in the war in Syria was another and different reason why Sunni extremist groups had and might again perpetrate attacks in Kurram Agency.
79 It is relevant too that the Tribunal used copied reasons in the critical paragraphs of its reasons at [54]-[56]. That those paragraphs were copied from a decision in an earlier matter, or perhaps from a template created for use in the Tribunal, can be seen in the high level of similarity between those paragraphs and earlier Tribunal decisions. The parties provided three examples where the Tribunal’s reasons at [54]-[56] are very similar to the reasons in earlier Tribunal decisions:
(a) AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; 269 FCR 168 at [25], which was an appeal in relation to a Tribunal decision made on 21 January 2016;
(b) BBT16 v Minister for Immigration & Anor [2018] FCCA 631 at [27], which was an application in relation to a Tribunal decision made on 11 April 2016; and
(c) 1516299 (Refugee) [2016] AATA 3791 at [32]-[35], being a Tribunal decision made on 29 April 2016.
80 The high level of similarity is at its clearest in relation to [54] of the Tribunal’s reasons (set out at [28] above). It suffices to set out the following two examples.
81 In AKH16 at [25] the Court extracted [79]-[80] of the Tribunal decision which was the subject of the appeal in that case, which had been delivered in January 2016. Paragraph [54] of the Tribunal’s reasons in the present case is set out below, marked up with underlining to show the differences between the reasons in this case and the reasoning of the Tribunal in AKH16. The additional words to those used in AKH16 are underlined, and the words deleted from the reasons in AKH16 are struck through:
[54] The Tribunal accepts that, as indicated by the applicant, there continues to be incidents of sectarian violence in FATA, including in Kurram Agency where the applicant’s home village of [redacted] is located. The IED attack in a clothes market in Parachinar on 13 December 2015 in which at least 25 people were killed and over 70 injuredin a bomb explosion in the Eid Gah clothes market in Parachinar. The Tribunal has considered whether this most recent attack was indicative of the increasing tensions in Parachinar, as highlighted by the applicant and whether this incident would lead to further sectarian violence. Thehis representative, is evidence of this. Nonetheless, the Tribunal considers, however that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and allindications are that the security situation has been relatively stable, with the exception of incidents like those referred to in the reports by the FATA Research Centre. The In this context the Tribunal considers that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous, the Tribunal considers that it would be premature to conclude that this the attack on 13 December 2015, the first such attack in Parachinar for almost two and a half years —year, marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before me it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before the Tribunal it concerning the security situation in and around Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only not more than a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future.
82 In 1516299 (Refugee) at [32]-[35], which was delivered in April 2016, the Tribunal used the same reasoning. Again, paragraph [54] of the Tribunal’s reasons in the present case is set out below, marked up with underlining to show the differences between those reasons and the Tribunal’s reasoning in 1516299 (Refugee), using the same system of marking-up:
[54] The Tribunal accepts that, as indicated by the applicant, there continues to be ongoing incidents of sectarian violence in FATA, including in Kurram Agency where the applicant applicant’s home village of [redacted] is from, as detailed in the country information discussed including as set out in the representative’s submission. This includes an located. The IED attack in a clothes market in Parachinar on 13 December 2015 in which killed at least 25 people were killed and over 70 injured, as highlighted by the applicant in and his oral representative, is evidence to the Tribunal.of this. Nonetheless, the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable, with the exception of incidents like those referred to in the reports by the FATA Research Centre. In this context the Tribunal considers it would be premature to conclude that this the attack on 13 December 2015, the first such attack in Parachinar for almost two and a half years year, marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe with Turi connections such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before it concerning the security situation in and around Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only not more than a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future.
83 Having regard to the obvious similarity between [54] (and to a lesser extent [55]-[56]) of the Tribunal’s reasons in the present case with passages in earlier Tribunal decisions, one can only infer that [54] was cut and pasted by the Tribunal member in this case, from an earlier Tribunal decision or perhaps from a template, with some tinkering at the edges. The Minister accepted that the Tribunal engaged in cutting and pasting in relation to [54]-[56] of its reasons. .
84 The Minister submits, and I accept, that there is no general prohibition on the use of formulaic reasoning in administrative decision-making, relying on the remarks of Gleeson J in Plaintiff M1/2021 at [111] where her Honour said:
The mere fact that a decision maker appears to have used a template, or copied the language of another decision maker, is not necessarily indicative of a denial of procedural fairness or some other jurisdictional error. Template reasons may evidence a sufficient intellectual process of genuine engagement with relevant claims or issues presented by claims in the circumstances of the particular case.
85 The Minister argues that the Tribunal’s cutting and pasting might have showed error if it indicated that the Tribunal did not bring an independent mind to the issues before it, citing MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [52]-[53] (Tracey, Murphy and Mortimer JJ (as her Honour then was)). The Minister contends, however, that here the Tribunal copied findings based on country information about circumstances in Pakistan, not credibility findings, and the Tribunal brought its mind to the reasoning because it changed the words from that of the earlier decisions, and it tailored necessary parts to deal with the evidence and submissions before it. Essentially, the Minister argues that the Tribunal made enough changes to the reasons it copied to indicate that it engaged with the appellant’s submissions, considered those issues, and agreed with the earlier reasons, using them merely in order to save time. The Minister submits that the Tribunal’s reasons show that, notwithstanding the cutting and pasting, it nevertheless brought an independent mind to the issues.
86 I do not accept the Minister’s contentions.
87 First, I accept that the substantially copied reasoning at [54]-[56] do not involve adverse credibility findings, but that does not show that the copied reasoning is unimportant. The Minister accepted that [54]-[56] were critical paragraphs in the Tribunal’s reasoning to its conclusion that the appellant would face only a remote chance of suffering serious harm on return to Kurram Agency. The Tribunal’s crucial finding that the December 2015 bomb attack in Kurram Agency did not indicate an increased risk of sectarian violence in that area was almost entirely copied from an earlier Tribunal decision.
88 Second, there is nothing in the changes the Tribunal made to the copied reasons which shows that it considered and evaluated the claim raised by the relevant material. That is one of the problems with copying reasons from another decision in respect of a similarly situated claimant. Here, the appellant’s submissions and evidence raised a claim based on the specific threat by LeJ, a claim which was (seemingly) not made in the decision that the Tribunal copied. It seems likely that, similarly to the position in SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146 at [21] (Siopis, Perram and Davies JJ), in cutting and pasting from the earlier decision the Tribunal member accidentally overlooked the claim raised by the relevant material.
89 Third, the issue in the appeal is whether the Tribunal considered and dealt with the appellant’s claim raised by the relevant material. The Minister’s submission that the copied reasons do not show that Tribunal member did not bring an independent mind to the issues in the case does not really grapple with that. The Tribunal’s critical reasoning is at [54]-[56], and that largely copied reasoning does not deal with the claim raised by the relevant material.
90 In any event, I do not accept that the changes the Tribunal member made to the copied material shows that he brought an independent mind to the issues before the Tribunal. The changes the member made to the copied reasons were limited, and of no real significance. In Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 408 ALR 460 at [16] (Thawley, McElwaine and Hespe JJ) the Court was not persuaded that the Tribunal showed independent consideration of the issues before it despite the fact that in that case the Tribunal member had materially reordered the paragraphs copied. I take the same view here in relation to the insignificant changes the member made to the copied material.
91 Fourth, the Minister’s submission that the Tribunal brought an independent mind to the issues in the case has no basis in the evidence. There is no direct evidence to show that the Tribunal member considered the reasons from an earlier decision, reached the view that those reasons coincided with the view that the member had reached following his consideration and evaluation of the appellant’s evidence and submissions, and copied the relevant paragraphs for reasons of efficiency and time-saving. The Minister’s proposition can only be established by inference (MZZZW at [74]-[75]), and that is not an inference I would draw having regard to the Tribunal’s reasons as a whole.
92 Having regard to those matters it is appropriate to infer that in reaching its finding that the appellant did not face a real chance of suffering serious harm on return to Kurram Agency the Tribunal overlooked the claim raised by the relevant material, and failed to consider and evaluate it. It made the relevant finding without having a proper awareness and understanding of the purport of the relevant claim and its possible significance, and therefore without a proper appreciation of the matters that might bear upon its finding on the way to its conclusion.
93 I consider the Tribunal’s error to have been ‘material’ in the sense discussed in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]–[31] (Kiefel CJ, Gageler and Keane JJ). The test for materiality is whether there is a realistic possibility that the Tribunal’s decision could have been different had the Tribunal not made the relevant error. That is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”, which is an undemanding standard: Nathanson v Minister for Home Affairs [2022] HCA 26 at [33] per Kiefel CJ, Keane and Gleeson JJ, at [15] per Gageler J.
94 There is a realistic possibility that the Tribunal’s decision could have been different had it understood and accepted the appellant’s claim that he faced a real chance of suffering serious harm on return to Kurram Agency because LeJ had perpetrated a major attack only a month earlier, had specifically threatened further attacks in that area unless Pakistani Shias stopped fighting in Syria and they had not, and that LeJ might strike in Kurram Agency again as it had threatened. If that was accepted there is a realistic possibility that the Tribunal would have decided that there was a real chance the appellant would suffer serious harm upon return to Kurram Agency, and the result of his application for protection could have been different.
CONCLUSION
95 I have made orders to allow the appeal, and to set aside the orders of the FCC made 25 June 2018. In lieu thereof, the Court orders that the decision of the Tribunal dated 14 July 2016 be quashed, and the appellant’s application for a visa be remitted to the Tribunal, differently constituted, to be re-determined according to law.
96 I am aware of no reasons why costs should not follow the event. Unless, within 14 days of these orders either party files submissions in opposition to such orders, it is ordered that:
(a) the Minister pay the appellant’s costs of the appeal; and
(b) having regard to my view that the Tribunal fell into error, to set aside the costs order made against the appellant in the FCC, and in lieu thereof there be no order for costs in relation to the hearing below.
Should, within the time specified, either party file submissions in opposition to those costs orders, the other party shall file any submissions in opposition within seven days. The issue will be determined on the papers.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. |
Associate:
Dated: 25 August 2023
