Federal Court of Australia

EAS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1159

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time in which to file a notice of appeal dated 26 October 2020 be granted.

2.    The applicant be given leave to rely on the following documents for the purposes of making the application for leave to advance the second ground of appeal and, if leave is granted, for the purposes of that ground of appeal:

(a)    the transcript of the applicant’s interview with the delegate of the first respondent, being Annexure IO-1 to the affidavit of Isabel Owen affirmed 23 May 2023; and

(b)    the transcript of the hearing before the second respondent, being Annexure IO-2 to the affidavit of Isabel Owen affirmed 23 May 2023.

3.    Leave to raise ground 2 of the amended notice of appeal dated 19 May 2023 be refused.

4.    The appeal be otherwise dismissed.

5.    The applicant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J

Introduction

1    By application filed on 26 October 2020, the applicant seeks an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (FC Rules) in which to appeal a decision of the Federal Circuit Court of Australia (as it then was) made on 11 September 2020, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 30 November 2016. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (Act).

2    The applicant is a citizen of Pakistan. He arrived in Australia on 9 August 2012 as an unauthorised maritime arrival.

3    On 9 December 2012, the applicant applied for a protection visa. The applicant claimed to fear harm from Tehreek-e-Taliban Pakistan (TTP), also known as the Taliban Pakistan, and other extremist Sunni groups by reason of his Shia Muslim faith, Pashtun/Turi ethnicity and origins from Parachinar in Kurram Agency. On 14 October 2013, the applicant was interviewed by a delegate of the Minister. On 22 September 2014, the Minister’s delegate refused to grant the protection visa. The delegate accepted that the applicant faced a real chance of serious harm in his home area, but found that he could reasonably relocate to another area of Pakistan where he would not face such a chance of harm.

4    On 26 September 2014, the applicant applied to what was then the Refugee Review Tribunal for review of the delegate’s decision. The applicant appeared before the Migration and Refugee Division of the Administrative Appeals Tribunal at a review hearing on 21 September 2016 at which he was represented by a solicitor and registered migration agent. On 30 November 2016, the Tribunal affirmed the decision of the delegate.

5    On 22 December 2016, the applicant filed an application for judicial review of the decision of the Tribunal in the Federal Circuit Court under s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court is confined to jurisdictional error. The applicant was legally represented in that application, which was heard on 9 September 2020. On 11 September 2020, the primary judge dismissed the application: EAS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCCA 2545 (PJ or primary judgment).

6    On 26 October 2020, the applicant filed an application in this Court for an extension of time to appeal the decision of the Federal Circuit Court, together with a draft notice of appeal. Rule 36.03 of the FC Rules requires an appeal to be filed within 28 days which, in the present case, was by 9 October 2020. The application was accordingly 17 days out of time. By affidavits affirmed on 20 October 2020 and 19 May 2023, the applicant explained the reasons for the delay. In his earlier affidavit, the applicant deposed as follows:

2    I filed a Notice of Appeal within time, but I filed it with the Queensland Registry of the Federal Court of Australia because the judgment was delivered in that Registry, and I did not know it had, in fact, been heard in South Australia. I filed the application in the Victoria Registry.

3.    I only discovered this on 19 October 2020, when I called the court for a second time to enquire whether my application had been accepted. I then called Victoria Legal Aid for advice on next steps and have acted on that advice immediately.

7    In his second affidavit, the applicant further deposed that he did not understand why he was required to file the notice of appeal in the Court’s South Australian Registry, and that he encountered difficulties in seeking advice, arranging documents and communicating with the Court in circumstances where he sought to do so “during the Covid-19 lockdown”. Although the applicant received some limited assistance from Victoria Legal Aid in relation to his appeal, he was unrepresented at this time.

8    The Minister consents to the grant of an extension of time. Having regard to the reasons given by the applicant for the delay and the Minister’s consent, I am satisfied that it is appropriate to make an order granting the extension of time sought.

9    The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to conclude that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.

10    In accordance with orders made by consent on 28 February 2023, the applicant, by newly instructed solicitors, filed an amended notice of appeal dated 19 May 2023. By the amended notice of appeal, the applicant advances two grounds of appeal, which are as follows:

1.    The primary judge erred in failing to find that the Tribunal’s findings drawn from the country information before it were irrational, or alternatively, constituted a misunderstanding of the real chance and real risk tests.

Particulars

(a)    The Tribunal’s finding that there was a downward trend in violence that would be sustained, such that there was not a real risk of significant harm to the appellant, could not rationally be supported by the information on which the Tribunal relied.

(b)    Alternatively, the Tribunal misunderstood the test for a real chance of serious harm or a real risk of significant harm.

2.    The primary judge erred in failing to find that the Tribunal failed to have regard to the whole of the appellant’s evidence.

Particulars

(a)    The appellant gave evidence in his interview before the Minister’s delegate.

(b)    The Tribunal did not consider the recording or transcript of the appellant’s interview with the delegate.

(c)    The Tribunal made adverse findings based on evidence that did not include the appellant’s evidence from the delegate interview, which findings were material to its decision.

11    The second ground of appeal was not advanced before the primary judge and, accordingly, the applicant requires leave to rely upon that ground. The Minister opposes the grant of leave.

12    On 26 May 2023, the applicant filed an interlocutory application seeking orders pursuant to r 36.57 of the FC Rules that the Court receive fresh evidence, comprising the following materials:

(a)    the 2015 Annual Security Report published by the FATA (Federally Administered Tribal Areas) Research Centre (FRC);

(b)    a transcript of the applicant’s interview with the Minister’s delegate on 14 October 2013; and

(c)    a transcript of the hearing before the Tribunal on 21 September 2016.

13    In support of the interlocutory application, the applicant relies on three affidavits affirmed by Isabel Owen, a solicitor employed by Clothier Anderson Immigration Lawyers representing the applicant, on 19, 23 and 26 May 2023 respectively. It is common ground between the parties that the document referred to in paragraph (a) was before the Tribunal. It is uncertain whether that document was before the primary judge, although the parties accepted at the hearing that it likely would have been, in keeping with the usual practice in matters of this kind. In respect of the document referred to in paragraph (b), the transcript of the interview has only recently been created by the solicitors for the applicant. However, it was common ground that an audio recording of the interview would have been before the Tribunal when it made its decision (on the basis that the Secretary of the Department is required to provide each document, or parts of a document, that is within the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision pursuant to s 418(3) of the Act). Neither the audio recording of the interview nor the transcript were before the primary judge. The document referred to in paragraph (c) is a transcript of the hearing at the Tribunal. That document was not before the primary judge.

14    It follows that the document referred to in paragraph (a) above is not fresh evidence because the likelihood is that the document was before the primary judge, and leave to rely on the document is not required. That document relates to the first ground of appeal. The documents referred to in paragraphs (b) and (c) are fresh evidence in the sense that they were not before the primary judge. The applicant seeks to adduce those documents on the appeal because they are relevant to the second ground of appeal. While the Minister opposed the grant of leave for the applicant to raise the second ground of appeal, the Minister did not separately oppose the applicant’s reliance on the documents referred to in paragraphs (b) and (c). In those circumstances, I grant leave to the applicant to rely on those documents for the purposes of making the application for leave to advance the second ground of appeal and, if leave is granted, for the purposes of that ground of appeal.

15    At the hearing on 16 June 2023, the applicant relied on an outline of written submissions dated 19 May 2023 and the Minister relied on written submissions dated 1 June 2023.

16    For the reasons that follow, I refuse leave to raise ground 2 of the amended notice of appeal, and I otherwise dismiss the appeal with costs.

Decision of the Tribunal

17    The Tribunal summarised the applicant’s claims and evidence raised in his statutory declaration dated 18 December 2012, his interview with and submissions to the Department, and the applicant’s evidence and submissions before the Tribunal as follows:

(a)    The applicant is from a village in the Parachinar district in Kurram Agency, in Pakistan, where he worked as a taxi driver in the local area ([20]).

(b)    The applicant claimed to fear harm in Pakistan from the Taliban (or the “TTP”, Tehrik-e Taliban Pakistan) and other extremist Sunni groups by reason of his: Shia Muslim faith; Turi ethnicity; origins from Parachinar, and his imputed political opposition to the TTP, Daesh (otherwise known as “ISIS” or “Islamic State”) and other extremists due to his profile as a Turi Shia and his origins from Parachinar. The applicant also claimed to fear harm by reason of his membership of particular social groups comprising “young Shia Muslims from Parachinar” and “Shia drivers from Parachinar”. The applicant also raised fears of the Pakistani authorities as a failed asylum seeker from Australia, and claimed to fear harm as a member of the group identified as “returnees from the west” ([22]).

(c)    Following the outbreak of hostilities between the Turi and Shia Bangash tribes and Sunni militants supporting Sunni tribes, the roads between Parachinar and Peshawar were closed due to ongoing violence and unrest. This affected access to medical treatment and resulted in food shortages. In 2008, the cousin of the applicant’s father and two of the cousin’s children were killed in an explosion, which was one of many attacks and explosions happening around that time ([31]).

(d)    In 2011, the applicant’s grandfather became sick. Because of the road closure, the applicant and his father took the applicant’s grandfather to Peshawar for treatment through Afghanistan. The journey took a long time due to delays caused by the road closure and the dangers in travelling. The applicant’s grandfather passed away two days after arriving in Peshawar. The applicant claimed that he and his father attempted to bring his grandfather’s body back to Parachinar by road in an ambulance. The applicant originally stated that he and his father returned in a convoy of vehicles but that the vehicle in which he and his family members travelled drove fast and left the convoy behind. When the applicant arrived home, he learnt that the convoy had been attacked and people had been killed. At the hearing before the Tribunal, the applicant stated that a car behind him in the convoy was attacked and that people were kidnapped ([32]).

(e)    In February 2012, an explosion occurred in central Parachinar when the applicant was there. His father’s taxi was damaged, and many people were injured or killed ([33]). Shortly after that incident, the applicant claimed that a good friend of his, also a taxi driver, was kidnapped in Parachinar ([34]). After this incident, the applicant decided to leave Pakistan ([34]).

(f)    Two the applicant’s brothers left Pakistan after the applicant due to their fears that they would be harmed because they were Shia and Turi ([35]-[38]). The applicant also claimed that his cousin, a medical officer in the Pakistan Army, was killed in December 2013 by Sunni officers because he was, among other things, Shia and Turi ([42]-[43]).

18    The Tribunal accepted the following facts in relation to the applicant ([29]-[30]): that he is an ethnic Pashtun from the Turi tribe and a Shia Muslim; that he is from a village in Parachinar, Kurrum Agency; that he worked as a driver using a car he shared with his father; and that the applicant may be identifiable as a Turi Shia Muslim from Parachinar, including on the basis of his national identity card.

19    The Tribunal made the following findings in relation to the applicant’s claims regarding the events that occurred from 2008 until after the applicant had left Pakistan (set out above).

(a)    The applicant and his family faced difficulties after the outbreak of hostilities between the Turi and Shia Bangash tribes on the one hand and Sunni militants and supporting Sunni tribes on the other. These hostilities led to the closure of the road out of Parachinar, limiting individuals’ ability to leave to seek medical treatment and disrupting the transport of goods and supplies into Parachinar, leading to food shortages ([31]).

(b)    In 2008, an explosion in Parachinar claimed the life of the cousin of the applicant’s father and the cousin’s two children, but nothing in the applicant’s evidence suggested that these individuals were personally targeted ([31]).

(c)    In 2011, the applicant, his father and grandfather were forced to travel through Afghanistan to Peshawar to obtain treatment for the applicant’s ailing grandfather, who passed away two days after arriving in Peshawar. Despite some concerns about variations in the applicant’s evidence, the Tribunal accepted as plausible that the convoy in which the applicant returned may have been attacked. The Tribunal did not accept, however, that the applicant or his family were personally targeted in that attack ([32]).

(d)    The Tribunal accepted as plausible that the applicant was present in Parachinar when a bomb exploded in the main bazaar in February 2012, and that this was a traumatic experience for the applicant ([33]).

(e)    Regarding the applicant’s claim that his good friend and fellow taxi driver was kidnapped in February 2012, the Tribunal accepted that the applicant may have heard of such an incident but did not accept that the applicant was a “good friend” of the victim ([34]).

(f)    Two of the applicant’s brothers had left Pakistan. One was located in Australia and another in France ([35], [40]). The Tribunal made other findings regarding the circumstances in which, and the reasons why, the applicant’s brothers left Pakistan, but concluded that these were not relevant to the applicant’s claims for protection ([36]- [41]).

(g)    The applicant’s cousin was a medical officer in the Pakistan Army who died in 2013 at the Pakistan Military Academy ([42]). The Tribunal did not accept, however, that the applicant’s cousin was killed by Sunni officers because he was, among other things, Shia and Turi ([45]).

20    The Tribunal then considered the risk of harm to the applicant if he were to return to Kurram Agency in Pakistan. Regarding the risk of harm to the applicant as a Turi Shia from Parachinar arising from militant and/or extremist groups, the Tribunal made the following findings ([46]-[84]).

(a)    The recent period of conflict in Kurrum Agency began in 2007, as a result of which the Shia residents of Parachinar were subject to frequent suicide bombings and targeted attacks ([47]).

(b)    However, more recent country information indicated that the situation in the Federally Administered Tribal Areas of Pakistan (FATA), within which Kurram Agency is located – as well as throughout Pakistan in general – had improved in recent years and the situation in Kurram Agency remained relatively stable ([49]). The Tribunal referred to a variety of sources of country information ([50]-[59]).

(c)    Referring to the Annual Security Reports for 2014 and 2015 prepared by the FRC, the Tribunal stated (footnotes omitted):

[56]    Among the reports discussed with the applicant were the 2014 and 2015 FRC Annual Security Reports, which both indicated a general decline in sectarian violence and incidents over recent years specifically in FATA and Kurram Agency. The reports note that, while Kurram Agency remained ‘turbulent’, incidents continued to decline and the majority of casualties were militants. The 2015 report noted that while incidents were registered in almost every agency, there was nevertheless a significant decline in militant incidents (40%) in the FATA region since 2014. The 2015 FRC report states that after a relatively peaceful 2014, there was a ‘surge’ in militant activity in Kurram in the first quarter of 2015 (17 incidents) but incidents (both militant and counter-militant) in the remaining three quarters numbered nine or less. Many of the reported incidents were in central/lower Kurram, as opposed to upper Kurram where Parachinar is located. A UNHCR report on a protection cluster mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram.

(d)    Having considered the country information relied on by the applicant ([60]-[65]), the Tribunal concluded (footnotes omitted):

[66]    The tribunal acknowledges that a degree of sectarian and generalised violence exists in Kurram Agency and FATA in general and that the number of incidents that occur in any given period fluctuate … As noted by the applicant’s representative, none of the reports referred to in the hearing indicates that sectarian or general violence have ceased in either FATA or Pakistan in general. The tribunal agrees with this observation … However, the tribunal does not accept that only a complete eradication of violence will mean that the applicant is not owed protection obligations. Rather, the tribunal must determine whether the applicant will face a real chance of serious harm for any Convention-related reason, or a real risk of significant harm. The tribunal does not accept on the country information before it that the existence of violence or the general presence of militant groups necessarily leads to the conclusion that the applicant faces either a real chance or real risk of such harm.

[67]    … the tribunal is of the view that the weight of the country information indicates a significant improvement in the situation in Kurram Agency since the start of Pakistan’s counter-militant operations in June 2014. The evidence before the tribunal is that this improvement is part of a wider trend of a significant improvement in sectarian and general violence throughout Pakistan over the past couple of years. The evidence before the tribunal indicates that the situation has not changed in any significant way and that this trend appears to be ongoing.

…

[70]     As noted in its above findings, the tribunal accepts that the applicant and various members of his family (including his uncle, cousins and brother) have either witnessed or been the victims of violence against Shias in Parachinar and in Peshawar. However, the tribunal has not accepted that the applicant or any members of his family were personally targeted during these attacks and on the evidence before it including country information discussed with the applicant and set out in the decision, the tribunal does not accept that any of these incidents give the applicant a profile that would give rise to either a real chance of serious harm, or a real risk of significant harm if he were to return to Parachinar, Kurram Agency. …

…

[73]     The tribunal has considered the risk of harm faced by the applicant due to generalised violence in Kurram Agency. Having regard to the country information discussed above, while a level of generalised violence exists in Kurram Agency, the tribunal does not accept that it is such that the applicant faces a real chance of serious harm due to his religion, tribe, political opinion, membership of a particular social group or any Convention reason as a result. Having regard to the country information the tribunal also does not accept that the level of generalised violence in Kurram Agency is such that the applicant faces a real risk of significant harm.

21    With respect to the risk of harm arising to the applicant as a Shia driver from Parachinar, the Tribunal concluded that the information before it did not indicate that Shia drivers (including from Parachinar) were specifically targeted by militant groups including the TTP ([81]-[82]). The Tribunal also concluded that ([83]):

… the applicant’s evidence does not indicate that he or his father, also a driver, were ever harmed while driving including during a time when violence in Kurram Agency was high. The one incident referred to by the applicant – the February 2012 explosion – was not targeted at the applicant while he was driving.

22    The Tribunal also did not accept that the applicant would face a real chance of serious harm, or a real risk of significant harm, on his return to Pakistan as a failed asylum seeker or as a returnee from the west more generally ([85]-[91]).

23    Based on its findings in relation to the applicant’s claims, the Tribunal concluded that the applicant had not satisfied the criteria in ss 36(2)(a) or (2)(aa) of the Act. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicant a protection visa ([92]-[95], [97]).

Decision of the Federal Circuit Court

24    The applicant advanced 16 grounds of review before the Federal Circuit Court. Those grounds of review were said to be in two parts. By grounds 4, 5 and 6 (described as the “first claim”), the applicant contended that the decision of the Tribunal was irrational and/or unreasonable. By grounds 7-16 (described as the “second claim”), the applicant contended that the Tribunal had applied the wrong test when considering whether the applicant had a well-founded fear of persecution (PJ [8]).

25    In respect of the first claim, the applicant contended that the Tribunal’s recording of instances of violence and hostilities in its reasons was inconsistent with its finding that the applicant did not face a well-founded fear of persecution, nor a real risk of significant harm, if he were to return to Pakistan (PJ [9]). The Tribunal had accepted that violence had occurred, and that such violence had been widespread, but failed to have due regard to the extent of such violence. Accordingly, its findings adverse to the applicant were irrational or unreasonable (PJ [10]).

26    The primary judge rejected the first claim. His Honour found that the Tribunal had considered the evidence before it of sectarian violence against Shia Muslims up to the time of the applicant’s departure in 2012, as well as evidence since that time (PJ [11], [13], [14]). In doing so, the Tribunal recorded the applicant’s responses to what was said to be a trend of decreased violence and greater stability in Pakistan, such that it could not be said that the Tribunal failed to provide the applicant with an opportunity to address all claims made by him, or that the Tribunal had not considered such claims (PJ [14]). The primary judge concluded that the Tribunal was entitled to make the findings that it did in circumstances where: the Tribunal had weighed up all of the evidence before it, including country information; the Tribunal had found that the applicant had not referred to any violence or threats having been inflicted upon, or made to, any family member who had lived in his home village since his departure; the Tribunal had found that the applicant did not have any profile that would adversely bring him to the attention of either the authorities or groups opposed to Shia Muslims; and the Tribunal had regard to the issue of generalised violence in Kurram Agency (PJ [11]-[17]). The Tribunal had properly exercised its jurisdiction, having considered the articulated claims made to it and having weighed up all of the evidence before it (PJ [19]). Accordingly, there was no basis for finding that the Tribunal acted irrationally or unreasonably so as to constitute jurisdictional error in arriving at its decision (PJ [20]-[22]).

27    In rejecting the second claim, the primary judge found that the Tribunal had adopted the correct test for what constituted a well-founded fear of persecution, being the test enunciated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) (PJ [25]-[26]). The primary judge concluded that the Tribunal did not err in its consideration of whether the applicant had such a fear. The Tribunal was entitled to have regard to country information for the purpose of reaching its decision as to whether any risk to the applicant of serious or significant harm if returned to Pakistan was either real or remote (PJ [28]-[30]). Having done so, the Tribunal concluded that there had been a significant reduction in hostilities and violence since the time of the applicant’s departure (PJ [28]) and that, at the time of the hearing before the Tribunal, there would be no real chance of harm to the applicant on his return to Pakistan.

Appeal ground 1

Applicant’s submissions

28    By ground 1 of the amended notice of appeal, the applicant contends that the Tribunal did not have a rational basis in the evidence on which it relied to conclude that: there had been a marked decrease in sectarian or generalised violence in Kurram Agency; this downwards trend was ongoing; and, as a result, the applicant would not face a real chance of serious harm or a real risk of significant harm if he returned to Kurram Agency. The applicant further contends that the primary judge failed to grapple with this question.

29    The applicant submitted that the Tribunal relied on the Department of Foreign Affairs and Trade (DFAT) Thematic Report on Shias in Pakistan dated January 2016 (which in turn drew on data from the FRC in 2014 and the first half of 2015) (at [55]), as well as the 2014 and 2015 FRC Annual Security Reports (at [56]). The Tribunal stated (at [56], footnotes omitted):

Among the reports discussed with the applicant were the 2014 and 2015 [FRC] Annual Security Reports, which both indicated a general decline in sectarian violence and incidents over recent years specifically in FATA and Kurram Agency. The reports note that, while Kurram Agency remained ‘turbulent’, incidents continued to decline and the majority of casualties were militants.

30    In support of the Tribunal’s finding that “while Kurram Agency remained ‘turbulent’, incidents continued to decline and the majority of casualties were militants”, the Tribunal cited the 2014 and 2015 FRC Reports. The cited passage in the 2015 Report is as follows:

The year 2015, like the previous year, remained turbulent in the Federally Administered Tribal Areas (FATA) of Pakistan where armed conflict between non state militant actors and law enforcement and security agencies remained at its peak. … Almost every agency of FATA faced subversive activities by militants in one way or the other. However, compared to the previous year of 2014, a significant decline in militancy and counter militancy related incident [sic] were reported. Overall, there was a decline of 40% in militant violence in the FATA region compared to 2014.

31    The applicant submitted that, although the Tribunal refers to both the 2014 and 2015 Annual Security Reports, only the 2015 Report is relevant because the Tribunal could only rationally make findings about future trends on the basis of the newer report.

32    The applicant submitted that the statement in the 2015 Annual Security Report relied on by the Tribunal is a statement about trends in the FATA as a whole. However, with respect to Kurram Agency specifically, the report shows that:

(a)    a higher number of civilian casualties occurred in Kurram Agency in 2015 than in all other agencies within the FATA, and civilian (rather than militant) casualties comprise the largest group of casualties in Kurram Agency in that year; and

(b)    there was an “extraordinary” 98% increase in civilian casualties in 2015 in Kurram Agency.

33    The applicant further submitted that this matter was specifically drawn to the Tribunal’s attention in submissions made to it by the applicant’s representative during the hearing and, at paragraph 64 of its reasons, the Tribunal refers to that submission but does not engage substantively with it. Further, the applicant submitted before the Tribunal that assessments of sectarian violence in Kurram Agency must be considered in light of the protracted conflict in the region (such that, even if there is a period of reduced violence, violence against the Shia community remains ongoing and can quickly rise again), and where the applicant adduced country information before the Tribunal reporting that sectarian violence in 2015 was concentrated across eight locations, including the applicant’s home town of Parachinar.

34    The applicant argued that there was no rational basis upon which the Tribunal could have concluded that incidents of violence in Kurram Agency had continued to decline and that the majority of casualties were militants, and that levels of violence were so low and were likely to remain low so as not to pose a real chance of serious harm or a real risk of significant harm to the applicant. This was not a case where the Tribunal chose to place more weight on one piece of country information rather than another. Rather, the Tribunal’s findings here relied on a “fundamental misreading” of the country information that could not be rationally supported.

35    The applicant also advanced an alternative formulation of ground 1 which is that, in reaching its conclusion regarding the real chance or real risk of harm to the applicant, the Tribunal must have applied the wrong test. A real risk of harm requires a prospect that is “not remote” or “far-fetched”; it does not require a likelihood of persecution on the balance of probabilities: DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at [10], citing Chan; Minister for Immigration v SZQRB (2013) 210 FCR 505 (SZQRB) at [242] (Lander and Gordon JJ). The applicant submitted that, in light of the evidence of violence that the Tribunal accepted – including a fatal attack on a convoy in which the applicant was travelling, and a sectarian bombing attack that occurred metres away from him – and in light of the country information about sustained violence in the applicant’s home area, the Tribunal could not have considered the prospect of the applicant suffering harm to be far-fetched or fanciful. The applicant submitted that, on the evidence before the Tribunal, there can be no doubt that, at the time of his departure from Pakistan in 2012, there was a real risk of harm to the applicant. Absent some intervening, extraordinary change in circumstances, that real risk would remain. The evidence of the applicant and the country information before the Tribunal indicated that there was no such change. It follows, therefore, that the Tribunal must have applied a higher threshold in its concept of “real risk” than that established by the authorities. It thus failed to conduct its statutory task in the manner required by law and fell into jurisdictional error.

Minister’s submissions

36    In response to ground 1 of the applicant’s amended notice of appeal, the Minister contends that the Tribunal carefully considered all of the country information put before it, and that information reasonably permitted the Tribunal to find that there is no real risk of harm in the applicant’s home area of Parachinar. In support of that contention, the Minister relies on the following matters.

37    First, the Tribunal’s reasons can be read intelligibly so as to disclose a rational basis for its findings regarding the risk of harm to the applicant. In support of the first and second sentences of paragraph 56 of the Tribunal’s reasons, which the applicant seeks to impugn, the Tribunal cites pages 5 and 6 of the FRC 2015 Annual Security Report. That part of the 2015 Report sets out information about the decline in military incidents in the FATA region as a whole. In the remaining part of paragraph 56 of its reasons, the Tribunal refers to the situation in Kurram Agency specifically, and cites parts of the 2015 Report that consider the situation in that region. The Minister submitted that if the Tribunal’s reasons in the first three sentences of paragraph 56 are read as referring only to the situation in FATA, then the Tribunal’s reasons plainly have a logical and rational basis.

38    Second, even if the Tribunal’s factual findings in the first three sentences of paragraph 56 were erroneous, the error did not affect the ultimate conclusion reached by the Tribunal. Accordingly, no jurisdictional error arose.

39    Third, there was no reason to think that the Tribunal misunderstood the relevant statutory test it had to apply. It identified the correct test at paragraph 12 of its reasons, and it made observations which demonstrate that it correctly applied that test. For example, the Tribunal’s observation at paragraph 66 shows that the Tribunal understood that its task was to consider the level and nature of the risks of violence, not the eradication of risk altogether.

40    Fourth, the Tribunal’s approach, and its ultimate conclusion, are consistent with other cases where the Tribunal has concluded that there was no real risk of harm from generalised or sectarian violence in Parachinar or Kurram Agency as at 2016, relying on much the same information, such as CFB16 v Minister for Home Affairs [2019] FCA 1415 at [33] (Mortimer J); CHP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1818 at [75] (Murphy J).

Consideration

41    The applicant contends that the Tribunal’s reasoning that there had been a marked decline in sectarian or generalised violence in Kurram Agency, that this trend was ongoing, and that the applicant would not therefore face a real chance of serious harm or a real risk of significant harm if he returned to Kurram Agency, was irrational and could not be supported by the evidence on which the Tribunal relied. The applicant points in particular to the first and second sentences of paragraph 56 of the Tribunal’s reasons where the Tribunal refers to the 2014 and 2015 FRC Annual Security Reports.

42    Illogicality or irrationality sufficient to give rise to jurisdictional error requires the decision to be one at which no rational or logical decision-maker could arrive on the same evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at [130] (Crennan and Bell JJ). In the present case, the relevant decision is the Tribunal’s conclusion that it was not satisfied that the applicant is a refugee within s 36(2)(a) of the Act, or is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act, for the reason that (amongst others) the level of generalised violence in Kurram Agency is not such that the applicant faces a real chance of serious harm due to his religion, tribe, political opinion, membership of a particular social group or any Convention reason, or faces a real risk of significant harm. It follows, as observed by Crennan and Bell JJ in SZMDS at [130], that not every lapse in logic in a decision-maker’s reasons will give rise to a jurisdictional error, and a court should be slow (although not unwilling) to interfere in an appropriate case. As their Honours further observed:

131    … If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

135    Whilst there may be varieties of illogicality or irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

43    In considering the applicant’s arguments as to irrationality and illogicality, it is important to keep in mind that the Tribunal’s reasons are to be read fairly and 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).

44    In the present case, the applicant seeks to impugn the Tribunal’s decision largely by reference to two sentences within a lengthy examination of country information concerning the FATA generally and the Kurram Agency more specifically. It is necessary to consider, first, whether the two sentences of paragraph 56 of the Tribunal’s reasons impugned by the applicant reveal irrationality or illogicality and, second, if they do, whether that deficiency in the Tribunal’s reasons is sufficient to support a conclusion that the Tribunal’s decision is irrational or illogical.

45    To address the first step, it is helpful to reproduce again paragraph 56 of the Tribunal’s reasons, highlighting the first two sentences that are impugned by the applicant (footnotes omitted):

Among the reports discussed with the applicant were the 2014 and 2015 FRC Annual Security Reports, which both indicated a general decline in sectarian violence and incidents over recent years specifically in FATA and Kurram Agency. The reports note that, while Kurram Agency remained ‘turbulent’, incidents continued to decline and the majority of casualties were militants. The 2015 report noted that while incidents were registered in almost every agency, there was nevertheless a significant decline in militant incidents (40%) in the FATA region since 2014. The 2015 FRC report states that after a relatively peaceful 2014, there was a ‘surge’ in militant activity in Kurram in the first quarter of 2015 (17 incidents) but incidents (both militant and counter-militant) in the remaining three quarters numbered nine or less. Many of the reported incidents were in central/lower Kurram, as opposed to upper Kurram where Parachinar is located. A UNHCR report on a protection cluster mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram.

46    At the end of the second sentence is a footnote reference to pages 18-19 and 46 of the 2014 Annual Security Reports and pages 5-6 of the 2015 FRC Annual Security Report. The applicant adduced the 2015 Report in evidence before the Court, but not the 2014 Report. The failure of the applicant to tender the 2014 Report undermines the challenge that is made to the first two sentences of paragraph 56. The applicant’s arguments focussed solely on the 2015 Report and the trend in violence in Kurram Agency between 2014 and 2015, making reference to a chart at page 25 of the 2015 Report comparing the number of terrorist related incidents, deaths and injuries in 2014 and 2015 in Kurram Agency. Contrary to the applicant’s argument, however, it is apparent that the first two sentences of paragraph 56 of the Tribunal’s reasons are not confined to the trend in violence between 2014 and 2015. The first sentence of paragraph 56 states that the 2014 and 2015 Reports indicate a general decline in sectarian violence and incidents over recent years. I infer that, like the 2015 Report, the 2014 Report would have included a chart comparing the number of terrorist related incidents, deaths and injuries in 2013 and 2014 in the various Agencies (including Kurram Agency) within the FATA. Reading the first sentence as a whole, I infer that the Tribunal’s reference to “over recent years” is a reference to the years covered by the 2014 and 2015 Reports, which would have included a comparison back to 2013. Without tendering the 2014 Report, the applicant cannot make good its submission that the first two sentences are irrational. It is plausible that, when compared with 2013, each of 2014 and 2015 may have shown a decline in sectarian violence in Kurram Agency, even if 2015 showed a higher level of sectarian violence in comparison to 2014.

47    There is a further difficulty with the applicant’s criticism of the second sentence of paragraph 56. The applicant’s criticism assumes that the second sentence only concerns Kurram Agency, and the sentence conveys that incidents in Kurram Agency continued to decline and the majority of casualties were militants. However, reading the first two sentences of paragraph 56 together and in the context of the remainder of the paragraph, a reasonable interpretation of the second sentence is that the Tribunal was seeking to convey that, while Kurram Agency remained turbulent, incidents in the FATA continued to decline. That interpretation of the Tribunal’s reasons is supported by an examination of the pages of the FATA Annual Security Reports that are given as a reference. As already noted, the applicant failed to tender the 2014 Report, so it is not possible to have regard to that source. Nevertheless, pages 5 and 25 of the 2015 Report, which is referenced, are consistent with that interpretation of the second sentence. Page 25 states that Kurram Agency remained turbulent during 2015 while page 5 states (in respect of the FATA generally):

Almost every agency of FATA faced subversive activities by the militants in one way or the other. However, compared to the previous year of 2014, a significant decline in militancy and counter militancy related incident were reported.

48    That interpretation of the second sentence is also consistent with the remainder of paragraph 56. The third sentence of paragraph 56 states that the 2015 report noted that while incidents were registered in almost every Agency, there was nevertheless a significant decline in militant incidents (40%) in the FATA region since 2014. The footnote to that sentence also references page 5 of the 2015 Report which contains a sentence to that effect. In context, the third sentence is an elaboration of the second sentence, which supports a conclusion that the second sentence is primarily concerned with the FATA generally (while also noting that the Kurram Agency remained turbulent).

49    The fourth sentence of paragraph 56 cites the 2015 Report as stating that, after a relatively peaceful 2014, there was a ‘surge’ in militant activity in Kurram in the first quarter of 2015 (17 incidents) but incidents (both militant and counter-militant) in the remaining three quarters numbered nine or less. The footnote to that sentence references pages 18-19 of the 2015 Report which contains information precisely to that effect. The fourth sentence is also an elaboration of the second sentence by reinforcing that the Kurram Agency remained turbulent.

50    The fifth sentence of paragraph 56 follows on from the fourth sentence and states that many of the reported incidents (in Kurram Agency) were in central/lower Kurram, as opposed to upper Kurram where Parachinar is located. Again, the footnote references pages 18-19 of the 2015 Report (as well as pages 18-19 and 46 of the 2014 Report which was not adduced in evidence) which contains information to the effect stated by the Tribunal.

51    The sixth sentence of paragraph 56 cites a UNHCR report from April 2014 that concluded that general peace had been restored in Upper and Lower Kurram. The UNHCR report was not adduced in evidence, but the applicant did not seek to impugn the Tribunal’s summary of that report.

52    It can be accepted that the 2015 Report records that sectarian violence increased in Kurram Agency between 2014 and 2015. The comparison graph at page 25 of the Report shows that there was a large increase in the number of militants killed and injured between 2014 and 2015, although only a small increase in the number of security forces killed and injured. The number of civilians killed appears to have decreased in that period, although there was a large increase in the number of civilians injured. However, the Tribunal’s reasons, read as a whole, do not contradict that information.

53    For the foregoing reasons, I do not accept the applicant’s contention that the first two sentences of paragraph 56 of the Tribunal’s reasons are irrational or illogical.

54    Even assuming that those sentences reveal that a factual error had been made by the Tribunal, the applicant’s contentions fall well short of establishing that the Tribunal’s decision is irrational or illogical. As set out earlier, the Tribunal’s reasons show a detailed consideration of extensive country information concerning the security situation both in FATA and Kurram Agency ([46]-[58]), and of submissions and country information advanced by the applicant ([60]-[65]). Apart from the criticisms made of the first two sentences of paragraph 56 of the Tribunal’s reasons, the applicant did not seek to impugn the Tribunal’s extensive factual findings made on the basis of that country information. Significantly, the Tribunal made the following findings that were not challenged by the applicant:

(a)    In the most recent DFAT report titled “Thematic Report on Shias in Pakistan”, dated January 2016, DFAT assessed that there was a low level of sectarian violence overall in the FATA, although the level of generalised violence varied throughout the FATA. The violence was greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb. DFAT assessed that there was a low level of generalised violence in Kurram and Orakzai Agencies (at [55]).

(b)    The FRC’s first quarter security report for 2016 recorded a reduction in militant incidents in Kurram Agency from January-March 2016 (44% less than in the previous quarter with a total of five casualties, being three militants killed and two civilians injured) (at [58]).

(c)    The Centre for Research and Security Studies (CRSS) Security Report for April to June 2016 stated that there was no sectarian violence against Shias in FATA in the second quarter of 2016. While the most recent CRSS report (for the third quarter of 2016) noted an upsurge in violence in FATA, it does not refer to any reported incidents in Kurram Agency (at [59]).

55    On the basis of its extensive survey of the available country information, the Tribunal concluded that, although there continued to be sectarian and generalised violence in Kurram Agency and FATA, the weight of the country information indicated that there had been a significant improvement in the situation in Kurram Agency and that this trend was ongoing ([66]-[67]). Ultimately, the Tribunal concluded that the applicant would not face a real chance of serious harm or a real risk of significant harm on his return to Kurram Agency, either due to his specific characteristics or to the generalised violence in that area of Pakistan ([71]-[73]). Having regard to the Tribunal’s reasons as a whole, I am not satisfied that the Tribunal’s ultimate conclusion was not open to it, or that there was no logical connection between the Tribunal’s conclusion and the evidence referred to by the Tribunal. It is not the task of this Court, nor was it the task of the primary judge below, to assess whether the Tribunal’s conclusion was the most preferable of the conclusions open to it on the evidence.

56    For largely the same reasons, I do not accept the applicant’s alternative formulation of ground 1 of the amended notice of appeal, that the Tribunal must have misapplied the tests for establishing a real chance of serious harm or a real risk of significant harm for the purpose of ss 36(2)(a) and (aa) of the Act. The applicant accepted that the Tribunal had correctly stated those principles at paragraph 12 of its reasons, which was as follows:

Fourth, an applicant's fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

57    That statement reflects the principles stated in Chan at 389 (Mason CJ), 397-8 (Dawson J), 407 (Toohey J) and 429 (McHugh J), Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572-3 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), and SZQRB at [245]-[246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ at [297] and Flick J at [342] agreed).

58    The fact that the Tribunal correctly stated the principles is not, of course, the end of the inquiry. The substantive part of the decision maker’s reasons, rather than recitations in introductions or conclusions, will provide a more reliable guide as to whether the Tribunal applied the correct test. The Court is concerned with the reality, not the appearance, of the Tribunal’s reasoning: CGA15 v Minister for Home Affairs (2019) 268 FCR 362 (CGA15) at [26] (Murphy, Mortimer and O’Callaghan JJ).

59    For the reasons already explained, however, the Tribunal’s reasons demonstrate that it considered in detail the evidence before it and, having regard to that evidence, undertook an assessment of the level of risk that the applicant would face on his return to Kurram Agency. The Tribunal formed the view that the situation had improved significantly in Kurram Agency and that the applicant did not have a profile that would put him at particular risk of harm (especially in circumstances where neither the applicant nor his family had been personally targeted by militants). For that reason, the risk to the applicant did not rise to the level required. Contrary to the applicant’s submission, that conclusion is not inconsistent with the Tribunal’s substantial acceptance of the applicant’s evidence that he and members of his family have witnessed or been the victims of violence against Shias in Parachinar and in Peshawar (in respect of which the Tribunal found that the applicant and his family were not personally targeted), nor with the Tribunal’s finding that a level of violence continued to exist in Kurram Agency at the time of its decision in 2016. The applicant’s disagreement with the Tribunal’s evaluation of the evidence does not demonstrate that the Tribunal misapplied the tests for the grant of a protection visa.

60    For those reasons, I reject ground 1 of the amended notice of appeal. The primary judge was correct to dismiss those grounds of review.

Appeal ground 2

Applicant’s submissions

61    By ground 2 of the amended notice of appeal, the applicant contends that the Tribunal failed to have regard to the whole of the evidence before it, specifically, the applicant’s interview with the Minister’s delegate on 14 October 2013.

62    The applicant accepts that ground 2 was not advanced before the primary judge but contends that leave should be granted to advance it on appeal having regard to the principles governing the grant of leave stated in CGA15, especially as they apply in refugee cases. The applicant accepts that he can offer no other explanation for not raising ground 2 in the proceeding before the primary judge other than that the significance of the ground may not have been apparent to the solicitor who represented the applicant below. The applicant submitted, however, that it is “expedient in the interests of justice” (relying on O’Brien v Komesaroff (1982) 150 CLR 310 (Komesaroff)) to grant leave in circumstances where the ground of appeal has sufficient merit, raises only a question of construction and the application of law to settled facts, and does not cause prejudice to the Minister.

63    The applicant submitted that, in his claim for protection, he had referred to three events that prompted his decision to leave Pakistan, at his father’s urging, due to his fear for his life in his home area. Those events were:

(a)    In late 2011, the applicant and some of his family members were travelling ahead of a convoy in an ambulance with his grandfather’s body, after the family had taken him to Peshawar via Afghanistan for urgent (and ultimately unsuccessful) medical treatment. Returning home to Parachinar, the vehicles in the convoy behind them were attacked by militants and several of the occupants were killed or kidnapped.

(b)    In February 2012, a bomb exploded in Parachinar. The applicant was in Parachinar at the time and near to where the bomb exploded. He escaped injury but was traumatised by witnessing the event.

(c)    Shortly after the bomb blast in 2012, a “good friend” of the applicant who worked from the same taxi stand was kidnapped by people pretending to book a fare.

64    In relation to the first claim, the applicant noted that the Tribunal accepted that the event as described was plausible, but the Tribunal observed that the applicant did not suggest that he or his father were harmed or that he or anyone in his family were personally targeted (at [32]).

65    In relation to the second claim, the applicant noted that the Tribunal also accepted that the event as described was plausible and that this was a traumatic experience for him (at [33]).

66    In relation to the third claim, the applicant noted that the Tribunal accepted that the applicant may have heard of such an incident occurring, but the Tribunal did not accept that the taxi driver who was kidnapped was personally known by the applicant (at [34]).

67    By ground 2, the applicant challenges the Tribunal’s finding (at [34]) with respect to the third claim. The applicant submitted that the Tribunal’s finding with respect to the third claim was significant because it contributed to the Tribunal’s approach that the applicant was not at specific risk of harm from militants (as opposed to being a member of the general population in a violent area), nor was he at a risk of harm as a “Shia driver”. The applicant submitted that, as a result of that finding, the Tribunal effectively excluded the kidnapping incident from its consideration.

68    The applicant noted that the third claim was referred to in the applicant’s statutory declaration dated 18 December 2012 which accompanied the application for a protection visa. In that statutory declaration, the applicant stated (at paragraph 18):

A few days later a good friend of mine, also a taxi driver was kidnapped in Parachinar.

69    The applicant also noted that the third claim was referred to by the applicant in his interview with the Minister’s delegate on 14 October 2013. The relevant questions and answers from that interview were as follows:

Q297    Have you ever felt persecuted for any other reason?

A    I don't have any other reason but after the 2012 bomb blasts I was really, really upset for a few days and I was really disappointed by having this life and that really affected me. One of my friends, my colleague who was driving, he was a driver as well, after that bomb blast everything – he'd been kidnapped and who kidnapped him, I don't know but then my father decided, he told me, "You would leave the country and go somewhere".

Q298    Why was he kidnapped?

A    I don't know why.

Q299    So he was a colleague, where, through what?

A    The main time we used to stay in our car, so that's why I knew him. My father decided that I have to stop driving the car and tried to find somewhere to escape and because my father told me that he is sure that I'm not safe.

Q300    Were you there when your colleague was kidnapped?

A    No, I was at home.

Q301    So how did you find out about it?

A    Well, I went to the main city and people told me, that friend of yours who was driving here, he's been kidnapped. I saw his photos because the photo was saying, "This guy is missing if anyone has seen him, please contact us".

70    The applicant submitted that, in the Tribunal hearing, the applicant gave further evidence about the incident in which his friend was kidnapped. However, the applicant’s answers were responsive to the questions the Tribunal member asked him, which were very brief, before the Tribunal moved on to a different topic. After referring to the bombing in Parachinar in February 2012, the relevant questions and answers were as follows:

MEMBER:     So you left Pakistan, I think, a few months later. Was that what made you decide to leave, or was there another reason that you chose to leave?

INTERPRETER:     Yes, he said this was (indistinct) because I was very scared. I was working outside so I could not stay at home. That was my work, like, I had to – and also after that there was a – my friend was – there was a guy who was also driving a taxi, he was kidnapped. Then why I decided – that’s why I decided to leave.

MEMBER:     So when did that happen? Do you remember when that happened?

INTERPRETER:     About five, 10 days later than – after this explosion.

MEMBER:     Do you know what happened? Like, who kidnapped him or - - -

INTERPRETER:     No. Like, these people came to his – there is, like, a rank or a station or rank, yes.

MEMBER:     Yes.

INTERPRETER:     And they came, they wanted to charter his car, you know, like, for themselves. And it was after that he went (indistinct).

MEMBER:     So has he been released, do you know?

INTERPRETER:     Until I was there he was not released, but after that I haven’t asked them. But he was kidnapped (indistinct) and for a very long time there was no – no idea where he was.

71    The applicant submitted that, in its reasons, the Tribunal did not refer to the applicant’s interview with the Minister’s delegate in which the applicant gave further detail about his connection to the kidnapping victim, including how he knew the victim and how he learned of the kidnapping when people approached him because they knew he had been friends with the victim. As noted earlier, it was common ground that an audio recording of the interview would have been before the Tribunal when it made its decision. The applicant also submitted that the contents of the interview were expressly brought to the Tribunal’s attention, both in submissions made to the Tribunal and in the applicant’s statutory declaration dated 7 September 2016 in which the applicant made it clear that he continued to rely on the information provided to the Minister’s delegate at his interview.

72    The applicant argued that the failure of the Tribunal to consider the applicant’s interview with the delegate meant that the Tribunal deprived itself of a substantial part of the evidence and argument the applicant presented as part of his case. The Tribunal concluded that the applicant had no personal connection to the kidnapping incident and failed to appreciate its significance in terms of the specific risk that the applicant faced operating out of the same taxi rank as his friend and colleague. The applicant argued that, had the Tribunal considered the applicant’s evidence given in the interview with the delegate, there is a realistic possibility that the Tribunal’s findings in relation to the kidnapping incident may have been different, which in turn may have led to a different finding in relation to the risk of harm faced by the applicant. The Tribunal’s failure to consider the whole of the applicant’s evidence was material to its decision, and constituted jurisdictional error.

Minister’s submissions

73    The Minister submitted that leave to advance ground 2 ought not to be granted as it is not “expedient in the interests of justice” to do so. The Minister argued that, ordinarily, it is not in the interests of justice to grant leave merely because different counsel acting for a party may adopt a different approach to the same materials (citing Uolilo v Minister for Home Affairs [2021] FCAFC 138 at [84] per Charlesworth J) and, in any event, the ground lacks merit.

74    In relation to the merits of the ground, the Minister submitted that the applicant has not established that the Tribunal failed to consider the applicant’s interview with the delegate. The Court cannot infer that the Tribunal did not consider that material merely by reason of the fact that the Tribunal did not expressly refer to it. The Tribunal was not required to set out in its reasons what information it considered. The Tribunal’s obligation under s 430(1) of the Act is to set out its findings on material questions of fact. There is no obligation on the Tribunal to set out “what it did” in conducting its review, or to describe the procedural steps taken by it in reviewing the relevant decision: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [69] (Gummow J).

75    The Minister submitted that the Court should infer that the Tribunal had regard to the statements made by the applicant in the delegate interview, but that the Tribunal did not consider the evidence to be material. The Minister argued that the evidence given by the applicant in that interview provides little information about the nature of the applicant’s relationship to the person who was kidnapped, or the circumstances under which he was kidnapped. It was therefore open to the Tribunal to rely principally on the evidence given by the applicant before it, and to conclude that this evidence was vague and limited.

76    The Minister further submitted that, even if the Tribunal was in error, its finding as to the nature of the applicant’s relationship with the kidnapped person was not material to the Tribunal’s decision in circumstances where it was not claimed that the applicant’s alleged friendship with the applicant gave rise to the risk of harm; rather, the claimed risk of harm arose from the applicant’s occupation as a taxi driver where the kidnapped person was also a taxi driver in the same rank.

Consideration

Leave to raise ground 2

77    It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial, and that new issues are not raised for the first time on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ). Nevertheless, an appellate court may allow a point to be raised for the first time on appeal where it is expedient and in the interests of justice and where the new ground could not have been met by calling evidence and would not have resulted in the case being conducted differently: Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). 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, where the facts are not in controversy: Komesaroff. Further, this Court has recognised that special circumstances frequently arise in immigration cases. The usual approach of the Court in such cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [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.

78    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 applicant. The merits of the proposed new ground is an important consideration: CGA15 at [36]. While the fact that the applicant had legal representation below can be seen to weigh against a grant of leave, it is not decisive: CGA15 at [37].

79    In the present case, ground 2 of the amended notice of appeal raises a confined question, which is whether the Tribunal failed to have regard to evidence before it and whether any such failure amounted to jurisdictional error. The Minister accepted at the hearing that the ground could not have been met by further evidence before the primary judge. There would be no apparent prejudice to the Minister if I were to grant leave to the applicant to advance the second ground of appeal, and nor did the Minister articulate any such prejudice. The Minister has been aware of the proposed ground since at least May 2023, and was able to respond in written and oral submissions. Equally, the grant of leave would not involve any dislocation or inconvenience to the Court, insofar as the matter was able to be heard on the date, and within the time, allocated for the hearing. Moreover, there is plainly much at stake for the applicant in this case, in circumstances where the result will determine the applicant’s immediate right to remain in Australia. These are all matters that weigh in favour the grant of leave.

80    On the other hand, the applicant did not offer any explanation as to why the ground was not raised before the primary judge other than that the applicant’s former legal representatives, who acted on his behalf in that proceeding, did not raise it, for reasons unknown. I accept that this is not a decisive consideration, but it weighs against the grant of leave.

81    Ultimately, I have formed the view that the ground has insufficient merit to warrant the grant of leave. For the reasons explained below, I have formed the view that it is likely that the Tribunal did have regard to the applicant’s evidence given in the delegate interview and that the evidence is incorporated within the Tribunal’s overall findings without being expressly referred to. Even if the Tribunal had overlooked the applicant’s evidence given in the delegate interview, the factual finding made by the Tribunal that is challenged by the applicant, being the personal relationship between the applicant and the kidnapped taxi driver, must be regarded as immaterial to the Tribunal’s decision. My reasons for reaching those conclusions with respect to the merits of ground 2 follow.

Merits of ground 2

82    In the present case, the review by the Tribunal of the delegate’s decision was undertaken pursuant to Pt 7 of the Act. Implicit in the scheme of Pt 7 of the Act is the obligation of the Tribunal to reconsider the merits of the decision under review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [13] (Bell, Gageler and Keane JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [44]. That obligation requires the Tribunal to take account of substantial and clearly articulated arguments advanced by the applicant in support of their case: SZMTA at [13]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24]-[25] (Gummow and Callinan JJ). It also requires the Tribunal to take account of cogent evidence providing substantial support to the applicant’s case, including any evidence contained in a document or report provided to it by the Secretary: SZMTA at [13] citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [111]-[112] (Robertson J); see also Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304 (Plaintiff M1) at [27] (Kiefel CJ, Keane, Gordon and Steward JJ, Gageler J agreeing).

83    In the present case, where the Tribunal is required by s 430 of the Act to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based, the Court is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 (SZSRS) at [33], citing SZGUR; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; SZDMS; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Full Court in SZSRS further observed (at [34]):

The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

84    In determining whether the Tribunal has overlooked evidence and whether any such failure discloses jurisdictional error, the Court must therefore have regard to the whole of the Tribunal’s reasons, the material before it and the claims made by the applicant. The critical question is whether the evidence that was said to have been overlooked has sufficient importance to the determination of the applicant’s claims and to the exercise of the Tribunal’s function: SZMTA at [13]; SZSRS at [32], [39], [42], [55]-[59]. Justice Robertson made the following observations in SZRKT at [111]-[112] (which were cited with approval in SZMTA):

111    … The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. …

112    As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. …

85    The questions for determination that are raised by ground 2 are twofold:

(a)    first, in making its factual findings with respect to the applicant’s claim concerning the kidnapping of a taxi driver in Parachinar in February 2012 (at [34] of the Tribunal’s treasons), did the Tribunal fail to consider evidence before it, being the statements made by the applicant to the Minister’s delegate in the interview on 14 October 2023; and

(b)    second, if the first question is answered in the affirmative, did the Tribunal’s failure constitute jurisdictional error?

86    As already noted, it was common ground between the parties that an audio recording (if not a written transcript) of the applicant’s interview before the delegate would have been available to the Tribunal.

87    Addressing the applicant’s claim regarding the kidnapping of a taxi driver in Parachinar in February 2012, the Tribunal stated (at [34]):

The tribunal accepts that the security situation in Parachinar at the time led to the applicant deciding to leave Pakistan. The applicant also referred to another taxi driver who was kidnapped about 5-10 days after February 2012 blast. According to the applicant's hearing evidence, people wanted to charter that man's car but that they do not know what happened after that. That man was not released while the applicant remained in Pakistan but he does not know what happened to him now. The applicant’s original statement claimed that this person was his good friend, but the applicant’s evidence about this individual and his circumstances was vague and limited at hearing. The tribunal does not accept therefore, that the applicant personally knew of any such person but is willing to accept that he may have heard of such an incident having occurred.

88    I infer that the reference to the applicant’s “original statement” is a reference to the applicant’s statutory declaration dated 18 December 2012. The Tribunal found that “the applicant’s evidence about this individual and his circumstances was vague and limited at hearing”. It is necessary to consider whether, in making that finding, the Tribunal had regard to the applicant’s evidence at the Tribunal hearing, or the evidence given to the delegate in the interview, or both.

89    As the authorities referred to above make clear, in determining whether the Tribunal failed to have regard to evidence and submissions before it, it is necessary to consider the nature of the applicant’s claims before the Tribunal and the findings and evidence set out in the Tribunal’s reasons. The applicant’s claims before the Tribunal were shaped by the delegate’s decision. It is necessary to refer to the relevant aspects of the delegate’s decision to appreciate how the applicant’s claims were put in the Tribunal.

90    As is made clear in the delegate’s decision dated 22 September 2014, the applicant’s central claim is that he fears that if he returns to Pakistan he will be killed by the Taliban or other anti-Shia and/or Sunni insurgent groups by reason of his profile as a young Pashtun Turi and Shia Muslim from Parachinar in the Kurram Agency (page 6). In support of his claims, the applicant referred to three violent incidents, the third of which concerning the kidnapping of a taxi driver in Parachinar. In respect of that incident, the delegate found as follows (at pages 7 and 13):

He further stated that a friend of his, a fellow taxi driver was kidnapped after this bomb blast in 2012. He could provide no further information or detail in relation to this incident; however identified it was after this kidnapping that his father decided the applicant should leave Pakistan.

…

I acknowledge the applicant has stated part of the catalyst for his leaving Pakistan was because a fellow taxi driver was kidnapped. However, he has been unable to provide any information as to the context surrounding this incident. It is therefore speculative as to the circumstances surrounding this claimed kidnapping.

91    The delegate’s finding with respect to the claim concerning the kidnapping reflects the statements made by the applicant in his interview with the delegate which are reproduced above. Significantly, the applicant told the delegate that he did not know why the taxi driver was kidnapped and the applicant was not present when the kidnapping occurred but he was told about it by other people some time after it occurred. When the applicant was asked how he knew the taxi driver who was kidnapped, the applicant responded that “we used to stay in our car”. I infer that the statement “we used to stay in our car” is a reference to the applicant knowing the other taxi driver because they were, at least on some occasions, in their cars in the same taxi rank.

92    The delegate concluded that the three violent incidents described by the applicant were “random” in the sense that they were not directed to the applicant, and that there was nothing in the evidence to indicate that the Taliban or any other anti-Shia extremist individual or groups would seek to target the applicant specifically (at page 8). The delegate therefore considered the applicant’s claim having regard to the extent of violence and conflict directed toward Shia Muslims, and persons of Pashtun ethnicity and from the Turi tribe, in the Kurram Agency and Pakistan more broadly. The delegate concluded that the applicant faced a real chance of serious harm in his home area, but found that he could reasonably relocate to another area of Pakistan where he would not face such a chance of harm.

93    The applicant filed both a submission (dated 19 September 2016) and a statutory declaration (dated 7 September 2016) in the Tribunal. The commencement of the submission included a “catch-all” statement to the effect that the applicant continued to rely on his statutory declaration dated 18 December 2012 submitted with his protection visa application and the evidence given at his interview with the delegate. That “catch-all” statement was also repeated in the applicant’s statutory declaration filed with the Tribunal. However, neither the submission nor the statutory declaration otherwise referred to the claim made by the applicant concerning the kidnapping of the taxi driver. Rather, the submission focussed on the applicant’s claim to fear harm from the Taliban or other anti-Shia and/or Sunni insurgent groups by reason of his profile as a young Pashtun Turi and Shia Muslim from Parachinar, and challenged the delegate’s findings with respect to relocation within Pakistan. The submission included detailed descriptions of available country information concerning violence toward Shia Muslims in Kurram Agency and Pakistan more generally.

94    At the Tribunal hearing, the member asked the applicant about the kidnapping incident. The questions and answers on that topic are reproduced above. As was the case before the delegate, the applicant stated that he did not know who did the kidnapping or the reasons for it.

95    In light of that background, I am not satisfied that the Tribunal failed to have regard to the evidence about the kidnapping given by the applicant in his interview with the delegate. It can be accepted that the Tribunal did not expressly refer to the interview at paragraph 34 of the Tribunal’s reasons. However, the evidence given by the applicant in his interview with the delegate was materially the same as given to the Tribunal at the hearing. On the basis of the evidence given at the interview, the delegate found that the applicant was unable to provide any information as to the context surrounding the incident and the circumstances surrounding the claimed kidnapping were speculative. The Tribunal reached the same conclusion, stating that the applicant’s evidence about the individual involved and the circumstances was vague and limited. I consider that the findings made by the Tribunal at paragraph 34 of its reasons support the inference that the Tribunal had regard to the applicant’s interview with the delegate, but that the Tribunal did not consider that evidence to be sufficiently material to refer to (over and above the applicant’s evidence at the hearing).

96    The applicant’s argument focussed heavily on the fact that, in the delegate interview, the applicant repeated the claim that the kidnapped taxi driver was a friend. The Tribunal referred to that aspect of the claim, expressly referring to the applicant’s statutory declaration dated 18 December 2012, but did not accept it. I am not persuaded that this aspect of the Tribunal’s reasons shows that the Tribunal failed to have regard to the applicant’s interview with the delegate. On the question of being a friend, the applicant’s interview with the delegate did not materially advance the matter beyond the statement made in the statutory declaration.

97    Even if the Tribunal had overlooked the applicant’s evidence given in the delegate interview concerning the kidnapping, the factual finding made by the Tribunal that is challenged by the applicant, being the personal relationship between the applicant and the kidnapped taxi driver, must be regarded as immaterial to the Tribunal’s decision. The relevance of the kidnapping incident to the applicant’s claims was that it provided an explanation of the circumstances that led to the applicant’s decision to leave Pakistan. The fact of friendship between the applicant and the taxi driver who was kidnapped did not have any bearing on the applicant’s claims. The applicant did not suggest that he was at risk of harm, or elevated risk of harm, by reason of a personal relationship with the taxi driver. The applicant did not know who kidnapped the taxi driver or why he was kidnapped. As far as the applicant’s evidence went, it could not be determined whether the kidnapping was associated with militant activity or arose from wholly unrelated circumstances. Neither the delegate nor the Tribunal placed any weight on this incident as advancing the applicant’s claims. The fact of friendship did not have any bearing on that conclusion having regard to the relevance of the claim and the applicant’s inability to provide more specific information about the kidnapping.

98    For those reasons, I consider that ground 2 lacks sufficient merit to warrant the grant of leave. I am not persuaded that the Tribunal’s reasons, when read in the context of the application as a whole, demonstrate that the Tribunal overlooked the applicant’s evidence given in the delegate interview concerning the kidnapping. Even if the Tribunal had overlooked that evidence, it had no significance to the claims being advanced by the applicant before the Tribunal and any such error by the Tribunal could not be regarded as material to the Tribunal’s decision.

Conclusion

99    For the reasons stated above,     I am not persuaded that the Tribunal’s decision to reaffirm the delegate’s decision to refuse to grant the applicant a protection visa was affected by jurisdictional error. The primary judge was correct to dismiss the applicant’s application for judicial review. I will refuse leave for the applicant to raise ground 2 of the amended notice of appeal and will order that the appeal be otherwise dismissed with costs.

Associate:

Dated:    28 September 2023