Federal Court of Australia

CUR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 249

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants must pay the first respondent's costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court). The Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing a protection visa to the first to sixth applicants (as they became in the Circuit Court).

2    Those applicants are part of a family unit, four of whom came to Australia from Pakistan. After this appeal was commenced, the fifth and sixth appellants (who were born here) received Australian citizenship, so an order was made removing them as parties to the appeal. It is common ground that the outcome in relation to all the remaining appellants turns on the protection claims of the first appellant.

3    Relevantly to the appeal, those claims involved Australia's complementary protection obligations. The Tribunal found that Australia owed no such obligations in relation to the first appellant, although precisely why the Tribunal reached that view is controversial.

4    The grounds of appeal turn on the Tribunal's treatment of an incident in 2011 where the first appellant was kidnapped, and also upon the interaction between that and the Tribunal's treatment of claims concerning what it called 'generalised violence'. The nub of the appellants' complaint is that the Tribunal failed to undertake a real review of the claims based on the kidnapping, either in connection with the 2011 incident specifically, or as part of the claims about generalised violence. The appellants contend that the primary judge erred in her Honour's construction of the Tribunal's reasons in that regard.

5    For the following reasons, the appeal will be dismissed with costs.

Relevant aspects of the Tribunal's reasons

6    Since the appeal turns on the proper construction of the Tribunal's written reasons, it is necessary to go through the parts that are relevant to the appeal in some detail. The reasons and the decision affirming the delegate's decision were published on 5 August 2021.

7    To put the following into context, it is helpful first to set out the statutory criterion that was required to be satisfied in order to obtain complementary protection. It is the criterion at s 36(2)(aa) of the Migration Act 1958 (Cth) requiring that the visa applicant is:

a non-citizen in Australia … in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

8    Also relevant is the exclusion in s 36(2B)(c) of the Act, under which 'there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that … the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally'.

9    The above is to be distinguished from the refugee criterion in s 36(2)(a), which in August 2013, being the time when the appellants arrived in Australia, essentially adopted the Convention definition of a refugee as a person with a well-founded fear of persecution for a Convention reason: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

10    The Tribunal commenced with a chronology of the appellants' movement history in and out of Australia (para 5). It will become apparent that the first appellant's movements informed relevant conclusions that the Tribunal reached, so the following points should be noted:

•    Applicants 1-4 arrived in Australia on 13 December 2007 travelling on a TU-572 Student visa.

•    Applicants 1-4 returned to Pakistan on 17 February 2009 and returned to Australia on 23 March 2009.

•    Applicants 1-4 returned to Pakistan on 18 January 2011 and returned to Australia on 7 April 2011.

…

•    Applicant 1 applied for a Protection visa in Australia on 9 August 2013 on behalf of the family unit.

11    Thus, the first appellant and his family came to Australia on a student visa in 2007, returned to Pakistan and back to Australia twice after that, and over two years after his final return to Australia, he applied for a protection visa.

12    The Tribunal found that the appellants all originated from the city of Abbottabad in the Khyber Pakhtunkhwa province of Pakistan. The Tribunal recorded protection claims advanced by the first appellant as including that he held a well-founded fear of persecution in Pakistan because of his membership of and support for the Pakistan People's Party (PPP) and his refusal to be recruited to the Taliban in Pakistan (TTP). Also, he sought protection 'for the essential and significant reason of generalised politically motivated violence in the Khyber Pakhtunkhwa' (para 17).

13    After setting out an excerpt from the delegate's decision, the Tribunal then summarised its conclusions as follows:

20.    In particular, I find that Applicant 1 does not face a real chance of persecution if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his actual or imputed political opinion as a former supporter of the PPP or for any other reason from any person on return to Pakistan …

21.    I have also considered a number of late claims, namely the late claim of Applicant 1 that he faces a real risk of significant harm in Pakistan now or in the reasonably foreseeable future because he refused to be recruited into the TTP between 2007 and 2011 … I have also considered the implied claim that the applicants hold a well-founded fear of harm for the essential and significant reason of generalised violence in Pakistan. I am not persuaded that any of these late claims engages Australia's protection obligations.

14    The Minister relies in particular on paragraph 20 as showing that the Tribunal rejected the complementary protection claims, not because they were ruled out by the exclusion in s 36(2B)(c) of the Migration Act, but because it found that the first appellant did not face a real risk of persecution from anyone in Pakistan (the terminology of 'real chance' in the refugee criterion and 'real risk' in the complementary protection criterion being equivalent: see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [239]-[248], [297], [342]).

15    The Tribunal then set out its understanding of the legal criteria it was to apply in assessing the protection claims. It noted that those criteria included the refugee criterion in s 36(2)(a) of the Migration Act. The Tribunal also noted (para 25) that if a person is found not to meet that criterion:

he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').

The Minister relies on this paragraph too as indicating that the Tribunal assessed the first appellant's claims against the complementary protection criterion and found them wanting. There is no mention in this part of the Tribunal's reasons of the exclusion in s 36(2B)(c).

16    After setting out legal principles concerning the assessment of a 'real chance', concerning the credibility of applicants (this at some length), and concerning new claims and COVID-19 related claims, the Tribunal recited the history of the three hearings in the matter which it held. In the course of that, it recorded relevant protection claims as follows (para 70):

•    Refers to the generalised violence in home region of KPK due, in particular, to the lawless conduct of persons and groups associated with the TTP.

•    Claims that PPP members and party affiliates are targeted by the TTP in his home region. The applicant's family is known to be staunchly pro-PPP.

…

•    Claims that on his last return to Abbottabad, he was abducted for a period of two days by persons and groups associated with the TTP. During this time he was beaten and harassed and threats were made against him and his family. The applicant was released by these people after his father paid a ransom to his captors …

17    The Tribunal then set out further history of the first hearing it held and personal histories that it took from each of the first and second appellants. Of this, it is only necessary to note that the Tribunal records that a submission made by the appellants' migration representative in 2021 (para 82):

included five historical online news articles regarding Taliban extremist atrocities aimed at teachers, women and girls in the Khyber Pakhtunkhwa. These articles and their relevance to the claims of the applicants are not addressed in the representative's submissions. In addition, the representative included a copy of the DFAT Country Information Report: Pakistan, dated 20 February 2019. This document is not referenced in the representative's written submissions.

18    Then the Tribunal said:

83.    At the second hearing on 8 June 2021 I summarised the foregoing and invited oral submissions from both the applicants and the representative about the online news reports, noting that four of the news reports related to attacks in Peshawar, one from 2013 and three from 2014. The fifth article related to the attempted assassination of Malala Yousafzai by the TTP in Mingora city, Swat District, Khyber Pakhtunkhwa, in 2014.

84.    I invited the representative and the applicants to explain how these sources were relevant to their claims for protection, noting that they had departed their family home in Abbottabad, Pakistan, in April 2011. The applicants suggested that these news articles demonstrated generalised (and violent) antipathy by the TTP to the education of women and Pakistan, and the general levels of violence in Khyber Pakhtunkhwa. I accept these submissions in their terms.

19    After describing other claims not relevant to the appeal, the Tribunal came to the incident of kidnapping that is relevant to the appeal. It summarised the evidence and submissions as follows (para 92):

Applicant 1 stated that, approximately one week after his return to Pakistan in January 2011, he was waiting for a bus when he was grabbed by TTP thugs and taken away in a Suzuki all-wheel-drive vehicle. He was detained and beaten for two days until his father paid a ransom for his release. He was dumped approximately 5 km from home by the side of the road. After making his way home, he was treated there by a doctor and a report of the incident was made to local police by his family. I asked the applicant why he had not obtained a copy of the police report of this incident, noting that the events described had occurred more than 10 years ago. I also asked why he had remained in Pakistan for a further two and a half months. He stated that it was difficult to obtain such documents in Pakistan. The applicant stated that he needed to remain in Pakistan after his release because he had to apply for a dependent student visa for his wife and children so they could join him.

20    After summarising the rest of the second hearing and the third hearing, the Tribunal turned to make its findings. After dealing with claims to membership of the PPP and harassment from student members of a militant group, the Tribunal made the findings that are central to the appeal (footnotes removed):

103.    While I accept that this applicant may have been approached for recruitment into the student arm of Jamaat-e-Islami prior to 2007, the applicant's virtual absence from Pakistan since 2007 leads me to find that he ceased to be of interest to any potential agent of harm for any particularised reason since that time. Had the applicant genuinely subjectively held any well-founded fear of harm in that country from any person for any reason, he would not have voluntarily returned there on two subsequent occasions and delayed seeking protection in Australia until after the cancellation of his Student visa in this country.

104.    I accept that the applicant was kidnapped in Pakistan in January 2011 and was released on payment of a ransom by his father. I note relevant DFAT country information as follows:

Kidnapping is common in parts of Pakistan. While in some cases kidnapping is associated with family and domestic disputes, it is also a tool linked to security and/or political agendas. Gender based violence is also common, but often goes unreported.

The Rangers and police have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years (see Mutahidda Qaumi Movement). While verifiable data remains unavailable, DFAT understands serious crime across Pakistan, especially in Karachi and downtown Peshawar, has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the [National Action Plan].

105.    I accept that the thugs who kidnapped the applicant and extorted his parents may have been associated with the TTP. But this does not, of itself, demonstrate that the applicant was targeted for any reason other than his family's capacity to pay the ransom. Given that the applicant remained in Pakistan for a further two and a half months; the absence of evidence of any subsequent police report; and, the applicant's failure to seek protection in Australia at the first reasonable subsequent opportunity satisfy me that the applicant subjectively believes his kidnapping and beatings were opportunistic and criminal rather than targeted and particularised for any Convention-related reason. The absence of particularisation beyond the capacity of the applicant's family having an imputed capacity to pay a ransom also satisfy me that this integer of the applicant's claims does not meet the threshold tests for complementary protection.

21    As will be seen, the meaning of that last sentence was controversial.

22    At paragraph 109 the Tribunal said:

On the basis of the foregoing, I find that the applicant does not genuinely subjectively hold a well-founded fear of harm from any person in Pakistan now or in the reasonably foreseeable future for any essential and significant reason relating to his student membership of the PPP/[Pakistan People's Party Parliamentarians] or his mental health needs or for any other reason.

23    After making findings about other matters that need not be described, the Tribunal made further findings under the heading 'Applicant family unit claims regarding generalised violence'. It commenced by characterising this as (para 114):

an implied claim for protection grounded on a well-founded fear of harm for the essential and significant reason of generalised violence in the region perpetrated by agents of harm including, but not limited to, the TTP, various non-ideological criminal thugs and other non-state actors …

24    Then appeared quoted summaries of country information which the member constituting the Tribunal had apparently published in a previous decision. The tenor of the information was that, while the security situation in Pakistan was 'complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes', there had been a decline in the number of reported terrorist attacks since 2018 (para 115). This was for reasons including security operations conducted by the government. After quoting these summaries, the Tribunal said:

117.    Two things emerge from an assessment of this and other comprehensive country information about the general security situation in Pakistan, namely that there is a generalised experience of religious, sectional and other forms of violence that is difficult for members of the Australian community to comprehend. The agents of harm perpetrating this generalised criminal violence include (but are not limited to): the Taliban in Pakistan; both Sunni and Shia extremists; various non-ideological criminal thugs; and other non-state actors. Second, security operations conducted by agencies of the Pakistan state have had measurable success in addressing this environment of generalised criminal violence.

118.    I acknowledge the applicant's submissions about specific incidents of terrorist atrocities in 2013 and 2014 in Pakistan. These atrocities are accounted for appropriately in the country information to which I have referred above, and which I have discussed with the applicants personally at hearings. On balance, I am persuaded that the country information showing a demonstrable decline in secular violence and terrorist outrages should be preferred to the applicant's submissions on this matter.

25    The Tribunal then went on to discuss a number of further legal principles. In the course of these observations it said that (para 122):

the dispositive consideration relating to this aspect of the applicant's claims is not the adequacy of state protection with respect to generalised violence within Pakistan. What appears to be dispositive in this instance is the reference to 'systematic … conduct', which reflects the jurisprudence about the meaning of persecution.

26    Relying on Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 and other authorities, the Tribunal equated 'systematic' in this regard with 'non-random' (para 124). The Tribunal appeared to say this in the context of the refugee criterion rather than in the context of complementary protection. But it then went on to say (footnotes removed):

127.    Given that generalised violence evident in Pakistan is by definition random and perpetrated by unrelated criminal organisations, it lacks the requisite systematic quality that gives rise to protection obligations under the Act.

128.    With reference to the complementary protection assessment at s.36(2(aa) of the Act, the qualification at s.36(2B)(c) provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if 'the real risk is one faced by the population generally and is not faced by the applicant personally'. Although differently framed, this qualification bears some similarity to considerations relating to assessing whether the harm feared in a country is systematic and discriminatory.

129.    The Federal Court's view is that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk …

130.    The Court's reasoning suggests that the 'faced personally' element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace. This approach was also taken in [MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478] to the risk of harm from inadequate medical treatment. Similarly, in [SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245], the Court held that a risk faced 'personally' is one that is particular to the individual and is not attributable to his or her membership of the population of the country, or shared by that population group in general. In [BBK15 v Minister for Immigration & Anor [2015] FCCA 3220; (2015) 241 FCR 150] the Court held that the 'population of the country generally' refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country's population for s.36(2B)(c) to apply. These cases make it apparent that where a real risk is faced by an individual applicant, but it is the same as the risk faced by the general population, s.36(2B)(c) applies.

131.    Accordingly, to the extent that the applicant's claims can be characterised as being based on a well-founded fear of harm in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to, the TTP, various non-ideological criminal thugs and other non-state actors, they do not give rise to protection obligations in Australia under either s.36[(2)](a) or s.36[(2)](aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.

27    The Tribunal's treatment of the claims to protection from generalised violence is the subject of ground 2 of the appeal.

28    The Tribunal's ultimate conclusion was (para 132):

For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

29    The Tribunal thus affirmed the delegate's decision not to grant protection visas.

The primary judge's decision

30    It is only necessary to deal with the Circuit Court's treatment of the first ground raised before it. One other ground related to the former sixth appellant has fallen away, as has a notice of contention in the appeal that was filed in respect of the sixth appellant.

31    As described by the primary judge (at [57]-[58]), the first ground alleged an inconsistency between the Tribunal's apparent observation at paragraph 105 of its reasons that the first appellant's family had 'an imputed capacity to pay a ransom' and its finding at paragraph 131 of its reasons that the claim to complementary protection from generalised violence failed 'due to the lack of particularity of the harm' that is required by the statutory provisions. For, it was submitted, the Tribunal had already provided the necessary 'particularity' by finding that the first appellant's family had the capacity to pay a ransom: at [60].

32    The primary judge accepted that (at [64]) 'the illogicality sought to be established would be present if the first applicant's kidnapping claim formed part of the issue of generalised violence, such that there is an inconsistency between [105] and [131] of the Tribunal's decision'. As to that, her Honour said:

65    However, in my view the Tribunal's consideration at [131] (and in fact from [114] to [131]) was dealing with an issue separate from kidnapping.

66    Firstly, the subheading is of assistance and indicative of two matters, namely that the section pertains to generalised violence specifically in relation to the 'Applicant family unit'.

67    In so considering, the Tribunal had regard to a variety of independent country information which was said to go to:

generalised violence in the region perpetrated by agents of harm including, but not limited to, the TTP, various non-ideological criminal thugs and other non-state actors…

68    The independent material which discusses generalised violence deals with deaths related to terrorist attacks, random gun violence and suicide bombings. In fact nowhere within the ambit of the material which was before the Tribunal in relation to generalised violence was kidnapping mentioned at all. Based on the material before it, it was open to the Tribunal to have omitted the issue of the kidnapping of the applicant, which it had accepted as having occurred, from the ambit of what it considered under 'generalised violence'.

33    That being so, there was nothing to suggest that the risks to the first to fourth appellants of these kinds of violence were any different to those faced by the population of Pakistan generally, so that there was 'no error arising at [131] from a misapplication of s 36(2B)(c) of the Act': primary judgment at [70].

34    The primary judge found (at [71]) that the Tribunal's findings in relation to the kidnapping claim were included in paragraph 105 'in their entirety'. As to whether it was 'open' to the Tribunal to find that the kidnapping did not lead the first appellant to fulfil the refugee or complementary protection criteria, her Honour said that it was necessary to consider the nature of the claims that the first appellant made. To that end, she traced two different versions of the claim as found in two different written submissions to the Tribunal. At [75] her Honour found:

On neither version was there an express suggestion that the applicant was targeted for kidnapping because of his refusal to join the TTP (although there is a reference to the negotiation and payment going to the Taliban). Nor was there any suggestion that some characteristic of the applicant or his family, in the sense of some imputed wealth, was the reason which prompted the kidnapping. In this regard, the finding in relation to the capacity of the applicant's family to pay a ransom read in context is just that the kidnapping was opportunistic in the sense that by kidnapping a person one can then use their detention as a way to extort money from loved ones, whomever they may be. Therefore to the extent the applicants pose a question as to whether the risk of kidnapping to the applicant was one faced by the population of the country generally, the answer is that on the applicant's own evidence as accepted by the Tribunal, it was not faced only by him personally.

35    Her Honour then concluded as follows:

76    Given the nature of the applicant's claims, once the Tribunal was not satisfied that there was a political motivation for the kidnapping, such that it was not satisfied that even the applicant subjectively considered the matter to be anything other than opportunistic and criminal, it was also open to the Tribunal to find that the kidnapping claim did not satisfy the complementary protection criterion.

77    I accept the submission of the Minister that having been dealt with at [105], the kidnapping claim did not then fall as part of the issue of generalised violence which was dealt with from [114] onwards…

36    The primary judge found that ground of review 1 was not made out.

The appellants' case in this Court

37    The grounds of appeal (after they were amended with leave of the Court) are (emphasis in original):

1.    The learned primary judge erred, having found at [71] that the totality of the Tribunal's findings in respect of complementary protection are found in [105] of the Tribunal's reasons, in holding at [72] of her Honour's reasons that it was 'open' to foreclose a claim of complementary protection of kidnapping.

Particulars

(a)    The Tribunal accepted at [105] that the first appellant had been kidnapped by persons who may have been associated with the Taliban, but that this did not show that he was 'targeted for any reason other than that his family's capacity to pay a ransom.'

(b)    The Tribunal reasoned at [105] that the first appellant subjectively believed that he was the victim of a non-political crime, and therefore he does not satisfy the threshold test for refugee protection or complementary protection.

[(c)]    The learned primary judge held that [105] was the entirety of the Tribunal's findings in respect of the kidnapping complementary protection claim, and it was open to the Tribunal, conformably with s 36(2)(aa) and (2B)(c) to conclude the complementary protection claim on that basis.

2.    The learned primary judge erred at [65] and [68] of her Honour's reasons that the Tribunal's treatment of a claim of 'generalised violence' at [114] to [131] properly omitted any consideration of the first appellant's kidnapping, as accepted by the Tribunal in dealing with a claim to refugee protection but rejected as an 'opportunistic and criminal' [attack].

Particulars

(a)    The learned primary judge held that the Tribunal's reasons at [114] to [131] dealt with a claim of 'generalised violence' divorced from its finding at [105] that the first appellant had been kidnapped, possibly by the Taliban as claimed.

(b)    The learned primary judge held … that it was open to the Tribunal to conclude against the first appellant a claim of 'generalised violence' because the country information the Tribunal had selected did not refer to kidnapping.

38    With respect, these grounds are problematic. For they assert error without identifying what it was. Nowhere do they say why the findings attributed to the primary judge are wrong.

39    Nor is that attribution entirely accurate. Her Honour did not hold at [72] that it was '"open" to foreclose a claim of complementary protection of kidnapping'; in that paragraph her Honour merely raised it as a question to be considered. The true basis of her Honour's finding that it was open to the Tribunal to reject the protection claims in relation to the kidnapping is found at [75] where, after reviewing the submissions made to the Tribunal, her Honour concluded that when the Tribunal noted the capacity of the first appellant's family to pay a ransom, it was in fact finding that the crime was opportunistic and so represented a risk faced by the population of Pakistan generally.

40    Nevertheless, the nature of the case put on appeal emerged with more clarity in oral submissions, in particular. Those submissions addressed ground 2 before ground 1.

The appellants' case under ground 2

41    Counsel for the appellants submitted that the principle dispositive of ground 2 was that, as an inquisitorial body, the Tribunal was required to conduct its review on the basis of all matters that arise squarely on the materials before it, including its own findings of fact.

42    Counsel submitted that, as the Tribunal had determined that the kidnapping claim did not lead to fulfilment of the refugee criterion, it was bound to go on to consider whether it led to fulfilment of the complementary protection criterion. The appellants submit that the Tribunal's consideration of the complementary protection claims at paragraphs 114-131 of its decision does not evidence consideration of the claim that the first appellant was entitled to complementary protection because of the kidnapping. Counsel submitted that, having set out country information at paragraph 104 to the effect that kidnapping in Pakistan is common, for the Tribunal to fail to address kidnapping in the later part of its reasons about generalised violence was a constructive failure to conduct the review required.

43    The nub of ground 2 is that, having made findings about the kidnapping that took place in 2011, it was incumbent upon the Tribunal to review more broadly the risk that the first appellant might be kidnapped in the future. The primary judge is said to have made her Honour's error concerning this at [71], [72] and [76], each of which is described or set out above.

44    In that regard, counsel for the appellants acknowledged some interdependence between ground 2 and ground 1. He conceded that if the proper construction of paragraph 105 of the Tribunal's reasons, being the subject of ground 1, is that the Tribunal had evaluated the risk of future kidnappings, then ground 2 would fall away. For that would mean that there had been a review of the claim that the first appellant faced that risk as a necessary and foreseeable consequence of his return to Pakistan. But on the appellants' case (on ground 1) that is not the proper construction of paragraph 105.

The appellants' case under ground 1

45    The appellants' main complaint under ground of appeal 1 is that paragraph 105 of the Tribunal's reasons does not evidence any evaluation of the future risk that the first appellant would be kidnapped if he were to return to Pakistan. They submit that this paragraph is almost exclusively directed to the first appellant's subjective beliefs, which were relevant to the refugee criterion but not to the complementary protection criterion.

46    The appellants refer to the Tribunal's detailed consideration of the legal principles governing fact finding in protection visa cases, and contrast that with what they say is the complete absence of any application of those principles when it comes to assessing the significance of the kidnapping. They emphasise that the extent of the Tribunal's assessment is to be found in its written reasons. They say that if, as s 430(1)(c) of the Migration Act then required, the Tribunal was to set out the findings on any material questions of fact, here those findings must have been sparse indeed.

47    According to counsel for the appellants, in referring to 'the threshold tests for complementary protection', the last sentence of paragraph 105 must in fact be referring to the refugee criterion, as that is the one that imposes a 'threshold' test of the visa applicant's subjective belief. What this discloses, the appellants say, is that the Tribunal was not assessing the complementary protection claim properly, and so failed to engage with the issues that needed to be engaged with before dismissing that claim, in particular whether the first appellant faced a real risk of kidnapping if he were to be removed to Pakistan.

Consideration of ground of appeal 1

48    Before considering the reasoning of the Tribunal and the primary judge as relevant to ground 1, I should note a few uncontroversial and well-established principles. First, the Tribunal was required to consider all claims that were the subject of a substantial, clearly articulated argument relying on established facts, or that clearly emerged from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55], [68]. Second, it is the reality of consideration that is required, as the Court must assess whether the Tribunal has as a matter of substance had regard to the relevant matter: see e.g. Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). Third, whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole: Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55(5)]. Fourth, the Tribunal's reasons are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

49    I will seek to apply those principles so as to arrive at a proper understanding of paragraph 105 of the Tribunal's reasons, read in the context of the reasons as a whole. In taking that approach, I make the following observations about the context of that key paragraph (all 'paragraph' references are to the Tribunal's reasons):

(1)    The chronology of the first appellant's visits to Australia and returns to Pakistan and the circumstances of those visits were important to the Tribunal.

(2)    Paragraph 20 of the Tribunal's reasons, set out at [13] above, must concern the refugee criterion because it focuses on whether there was a 'real chance of persecution'. I therefore do not accept a submission made by counsel for the Minister, which I understood to be that the Tribunal's finding that there was no chance of persecution 'for any other reason from any person' went beyond the refugee criterion, because it was not limited to a Convention reason. Read as a whole, the sentence can still only be about persecution for a reason, or reasons, and so about the refugee criterion. So paragraph 20 does not detract from the appellants' argument that the Tribunal's reasons evince no real consideration of complementary protection.

(3)    I have set out paragraph 21 of the Tribunal's reasons at [13] above too because it mentions the issue of generalised violence. But since it too talks about that issue in terms of whether the appellants held 'a well-founded fear of harm for the essential and significant reason of generalised violence in Pakistan', I do not understand it as reflecting consideration by the Tribunal of complementary protection. As at August 2013, the language of 'essential and significant reason' was applied to the refugee criterion under s 91R(1) of the Migration Act.

(4)    Hence paragraphs 20 and 21 shed little light on the proper construction of paragraph 105, save that they may suggest that the Tribunal did not pay much attention to the complementary protection criterion.

(5)    On the other hand, paragraph 25 is inconsistent with any suggestion that the Tribunal overlooked that criterion: see [15] above. For it describes the criterion in terms.

(6)    The way the Tribunal frames the protection claims at paragraph 70 in respect of both generalised violence and the kidnapping incident does not make it clear whether they were claims under the refugee criterion or the complementary protection criterion or both (see [16] above). In view of criticisms the Tribunal made of the appellants' representation before it, that is likely because the claims themselves did not distinguish.

(7)    The online news articles referred to at paragraphs 82-84 (see [17]-[18] above) show clearly what the Tribunal had in mind when it later came to deal with what it describes as a claim about 'generalised violence'. Those articles were about attacks and an assassination attempt; not about kidnapping. The appellants seem to have relied on them to say that there was generalised and violent antipathy towards the education of women and also that they showed generalised levels of violence in Khyber Pakhtunkhwa. This is relevant to ground 2.

(8)    The account of the evidence about the kidnapping which the Tribunal gave at paragraph 92 shows that the Tribunal was troubled by the fact that the first appellant stayed in Pakistan for two and a half months after the incident: see [19] above.

(9)    That concern about the chronology of the first appellant's movements between Pakistan and Australia then comes through strongly in paragraph 103: see [20] above. It leads the Tribunal to make the important finding that the first appellant 'ceased to be of interest to any potential agent of harm for any particularised reason' since 2007 (emphasis added). It is not clear what the Tribunal means by the use of the term 'particularised' here, but from the way it is used in paragraph 105, it appears to encompass both Convention reasons for persecution and non-Convention reasons why the appellant might have been at a higher risk of violence than members of the general Pakistani population, so as to merit complementary protection. I will explain soon why I consider that it encompasses such non-Convention reasons.

(10)    The Tribunal accepts that the kidnapping occurred and at paragraph 104 it appears to enlist certain country information in support of that. But that country information does not suggest that any particular group of people were targeted for kidnapping, other than women (which could not enhance the first appellant's protection claims). Contrary to a submission made by the appellants, the country information read as a whole supports the view that kidnapping was a general risk in Pakistan.

50    In all that context, turning to the key paragraph, 105, the Tribunal says in the second sentence that even though the kidnappers were Taliban, 'this does not, of itself, demonstrate that the applicant was targeted for any reason other than his family's capacity to pay the ransom'. In expressing itself that way, the Tribunal is suggesting that the reason for the targeting does not provide support for the first appellant's protection claims. That is confirmed by how the Tribunal then returns to the chronology that it found troubling (as well as the absence of a police report). It is true that its findings there are couched in terms of the first appellant's subjective beliefs. But read fairly without an eye attuned to the detection of error, and in the context of the objectively based finding in paragraph 103 in particular, they should also be understood to be findings that, viewed objectively, the kidnapping and beatings were opportunistic and criminal rather than for any Convention reason.

51    The reference in the key final sentence to the 'absence of particularisation' then takes that characterisation in for the purposes of the complementary protection criterion. That criterion is the express subject of the sentence. The use of the word 'also' confirms that the Tribunal has turned from the refugee criterion to the complementary protection criterion. That express designation is why I said earlier that I consider that the Tribunal uses the term 'particularisation' to refer to any motivation for harmful conduct that would target the first appellant for any reason other than being a member of the general Pakistani population. That is the ordinary natural understanding of what the word means in context, and it is consistent with the general way that 'particularised' is used in paragraph 103. It is also consistent with the Tribunal's reference to a 'lack of particularity of harm that is required by these statutory provisions' in connection with s 36(2)(a) and s 36(2)(aa) in paragraph 131 of its reasons (set out at [26] above).

52    The two evidently dismissive references in paragraph 105 to the family's ability to pay a ransom, made in both a refugee and complementary protection context, further persuade me that the Tribunal considered that this reason did not amount to 'particularisation' of the first appellant, for the purposes of either criterion. It could not have been a Convention reason justifying protection as a refugee. And on its terms, the last sentence is saying that the lack of any 'particularised' reason is what defeats any complementary protection claim based on the kidnapping (recalling that the appellants appear not to have been specific about which criterion or criteria were engaged by which claims).

53    It follows, in my view, that in the last sentence of paragraph 105 the Tribunal was dismissing any claim to complementary protection based on the kidnapping, and was doing so on the basis that the kidnapping reflected a risk that was faced by the population of the country generally and not faced by the first appellant personally, so that his claims were defeated by s 36(2B)(c) of the Migration Act. So the primary judge's understanding of paragraph 105 was correct: see [34] above. The Tribunal had determined that the kidnapping was opportunistic and did not reflect a risk that was faced by the first appellant personally. It is true that at paragraph 109 the Tribunal seemed to summarise its conclusions by reference to concepts that only apply to the refugee criterion (see [22] above), but that does not negative or neutralise the express findings about complementary protection in connection with the kidnapping claim that it made at paragraph 105. I therefore do not accept that, as particular (b) to the first ground asserts, the Tribunal based its conclusion about complementary protection on its findings about the first appellant's subjective beliefs.

54    While I have reached these conclusions without recourse to the way in which the first appellant's protection claims were framed, in my respectful view that does bolster the conclusion, for the reasons the primary judge gave: see [34] above.

55    I consider, with respect, that counsel for both parties placed too much weight on the Tribunal's reference to 'threshold tests' in the last sentence of paragraph 105. For the appellant, this had to be referring to the refugee criterion. For the Minister, this had to be referring to s 36(2)(aa) and not to s 36(2B)(c). But what the Tribunal had in mind as a 'threshold test' is ambiguous. It need not only refer to the refugee criterion. That it does is flatly contradicted by the fact that the relevant sentence says that it concerns the tests for complementary protection. Nor is it clear that only s 36(2)(aa) could be a threshold test. Indeed, the sentence refers to 'threshold tests' plural, suggesting that the Tribunal did have in mind the complete set of complementary protection requirements embodied in s 36(2)(aa) and s 36(2B). Contrary to a submission made by the Minister, I do not consider that the fact that the Tribunal had earlier referred only to s 36(2)(aa) (see [15] above) means this must have been what it was referring to as a threshold test. In truth, the parties' submissions put far too much weight on one ambiguous word. In paragraph 105, 'threshold' is better treated as surplusage.

56    In their written submissions, the appellants said that the absence of any evaluation of future risk at paragraph 105 of the Tribunal's reasons was 'because of the Tribunal's finding that CUR21 subjectively believed his kidnapping and beatings were "opportunistic and criminal rather than targeted and particularised for any Convention-related reason" so that he did not satisfy a "threshold"' (submissions para 36, original emphasis, footnote removed). But that is not what paragraph 105 does. Certainly, the Tribunal considers that the absence of a subjective fear of persecution disposes of the appellants' claims under the refugee criterion. But the reference to a 'threshold test' is made in connection with complementary protection when the Tribunal states an objective finding about what led to the kidnapping.

57    The appellants also submit that the better finding is that the Tribunal did find that 'militants' were involved. I accept that, but the more pertinent point is that the Tribunal then goes on to find that they did not kidnap the first appellant because of his political views; they kidnapped him because they thought that his family could pay a ransom, and this meant that the kidnapping was opportunistic criminality.

58    The appellants also submit that the fact that the first appellant's family had previously paid a ransom was itself a reason why he might again be a target for kidnapping and extortion. If by this they mean that the Tribunal should have considered whether that put him at a level of risk of future kidnapping above that experienced by the population of Pakistan generally, that claim was not put to the Tribunal and nor did it arise clearly from the materials before it. If the appellants wished to contend that the kidnapping in 2011 increased the risk should the first appellant return to Pakistan over ten years later (the Tribunal's decision being in August 2021), they needed to say so.

59    It follows from my preferred construction of paragraph 105 in the context of the Tribunal's reasons as a whole that ground 1 fails. For it is a contention that the Tribunal did not consider the risk generally that the first appellant might be kidnapped if he were to return to Pakistan. But the Tribunal's reasoning, while based on the specific instance of kidnapping, is to the broader effect that if the first appellant were to be kidnapped in the future, that would not be because of any particular reason, but merely the result of his membership of the general population of Pakistan. That is confirmed by the finding in paragraph 103 that the first appellant had 'ceased to be of interest to any potential agent of harm for any particularised reason' since 2007. Since that is in substance the same as the primary judge's reasoning at [76] of her Honour's reasons, her Honour did not err in this respect.

60    It follows that the Tribunal did not consider how likely it was that the first appellant would be kidnapped if he were to return to Pakistan. It did not need to, because it had determined that any kidnapping would not reflect a risk faced by him personally. As the Full Court (Lander, Jessup and Gordon JJ) said in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36], 'The section must be read as a whole. The enquiry provided for in s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B)'. Consistently with that, in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11] Rares J concluded that:

the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.

61    Ground of appeal 1 is therefore dismissed. Since I have not concluded that the last sentence of paragraph 105 reflects consideration of the risk of future kidnappings, counsel for the appellants' concession about ground 2 is not engaged and it is necessary to consider that ground as well.

Consideration of ground of appeal 2

62    Ground 2 can, however, be dealt with more briefly. The appellants now appear to accept the primary judge's construction of paragraphs 114-131 of the Tribunal's reasons: that they do not concern kidnapping, but only other kinds of generalised violence. Their contention is that this means that the Tribunal failed to conduct a review of his claim to face a real risk of significant harm in the form of kidnapping.

63    But even though counsel's specific concession about ground 1 is not engaged, the fate of the appellants' contention as to ground 2 still depends on the matters I have considered under the previous ground. Since my conclusion is that the Tribunal decided that any future kidnapping would reflect a risk faced by the population of the country generally, and not faced by the first appellant personally, there was no need for the Tribunal to deal with kidnapping under the heading of its consideration of generalised violence. That is in substance what the primary judge said at [77] of her Honour's reasons. Ground 2 fails.

64    The appellants complain that in this part of the Tribunal's reasons, no claim or integer concerning them was engaged with or analysed. But there was no need to do so; the only claim about violence that had been directed at the first appellant - the kidnapping - had already been addressed, and the appellants' claims as to generalised violence did not invoke any considerations specific to them: see [17] and [18] above.

65    The appellants also submit that the primary judge's approach to the generalised violence claims was to say that the Tribunal did not need to engage with kidnapping because the country information that it considered did not mention that particular kind of violence. But the passage set out at [32] above shows that her Honour was simply identifying the scope of what the Tribunal had considered under the heading of 'generalised violence'; her Honour did not say that the country information obviated the need to consider kidnapping at all.

66    The true basis of her Honour's decision in that regard is that the findings about kidnapping were at paragraph 105 (see [34] above). As I have found, those findings reflected an adequate review of the appellants' complementary protection claims in respect of kidnapping.

Conclusion

67    The appeal will be dismissed, with costs.

Associate:

Dated:    24 March 2025