Federal Court of Australia

ARE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 263

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant be granted leave to rely on the amended notice of appeal dated 3 March 2025.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

introduction

1    The Appellant appeals from a decision of the Federal Circuit and Family Court (Division 2) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal made on 13 January 2017 to affirm a decision of a delegate of the Minister, made on 1 April 2014, to refuse to grant the Appellant a protection (Class XA) Visa: ARE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 801 (PJ).

2    By an amended notice of appeal, the Appellant contends that the primary judge erred in failing to find that the Tribunal constructively failed to carry out its assessment of whether the Appellant faced a real chance of serious harm on return to Pakistan, by failing to assess the chance of harm into the foreseeable future, having regard to the probative evidence before it as to the volatility of sectarian and generalised violence in the Appellant’s home area, or alternatively, failed to deal with the Appellant’s claim that the situation was likely to deteriorate in the foreseeable future. The Appellant submits that the Tribunal erred by relying on country information as to the security situation at a fixed point in time and refused to consider the chance of harm from sectarian or generalised violence into the foreseeable future on the ground that it would be mere speculation.

Background

3    The Appellant is a national of Pakistan. He is a Shia Muslim from a region of Pakistan close to the border of Afghanistan. The Appellant arrived on Christmas Island as an irregular maritime arrival on 9 August 2012. He applied for a visa on 13 December 2012.

4    The Appellant claimed that he “faced a real chance of serious harm on return to his home area in Pakistan as a consequence of the volatile security situation in that area, including (but not limited to) the prevalence of sectarian violence carried out by the Taliban and other militants against Shias”.

5    The delegate had accepted that the Appellant faced a real chance of serious harm from sectarian violence, but found that the Appellant could reasonably relocate to another part of Pakistan.

6    On 30 April 2014, the Appellant sought a review of the delegate’s refusal decision by the then Refugee Review Tribunal. On 1 October 2015, the Tribunal affirmed the delegate’s decision. That decision was the subject of an application to the Federal Circuit Court, as it was then known, which by consent ordered on 24 May 2016 that the matter be remitted to the Tribunal for reconsideration.

Decision of the Tribunal

7    The Appellant was represented at the remittal hearing in the Tribunal.

8    The Appellant claimed to face a real chance of serious harm on return to his home area in Pakistan as a consequence of the volatile security situation in that area, including (but not limited to) the prevalence of sectarian violence carried out by the Taliban and other militants against Shia Muslims.

9    The Appellant submitted before the Tribunal that (at [57] of the Tribunal’s reasons (TR)):

…the Tribunal had to consider what would happen in the reasonably foreseeable future and that it was not mere conjecture to argue that the security situation in Pakistan was likely to deteriorate as they submitted it had done continually over a number of years. They submitted that the army was in the final stages of its operation which conceivably meant that there would be a decrease at some point in the military presence and that ‘no reasonable decision maker is able to say with certainty that the security situation in Pakistan will not deteriorate to the same conditions as it did when the [Appellant] experienced past harm’. They also submitted that there was more than a remote chance that further violence might eventuate in Pakistan, placing the [Appellant] at risk.

10    On 13 January 2017, the Tribunal affirmed the delegate’s decision refusing the grant of the Visa.

11    A summary of the Tribunal’s decision is set out at PJ [15]–[32]. Of relevance to the issues on appeal is the Tribunal’s consideration under the heading “The current situation in Parachinar”. The Tribunal considered then current country information, including that provided by the Appellant. The Tribunal accepted the Appellant’s submission that there continued to be incidents in the relevant region of Pakistan but accepted the assessment of the Australian Department of Foreign Affairs and Trade (DFAT) that despite the fact that there continued to be security incidents in the relevant region, there was a low level of generalised violence in the relevant region in particular: TR [60].

12    Based on the Tribunal’s assessment of the overall security situation, the Tribunal did not consider that there was a real chance that the Appellant would be persecuted for one or more reasons under the Convention Relating to the Status of Refugees (TR [61]), including by reasons of his race (as a member of the Bangash tribe), his religion (as a Shia Muslim), his imputed political opinion or his membership of the particular social group of “Shias from Parachinar” if he returns to his home “now or in the reasonably foreseeable future” (TR [64]). The Tribunal did not accept that the Appellant had a well-founded fear of being persecuted for one or more of the Convention reasons if he returns to Pakistan “now or in the reasonably foreseeable future”: TR [68].

13    The Tribunal also concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the Appellant being removed from Australia to Pakistan, there was a real risk he would suffer significant harm: TR [71]. The Tribunal considered (at TR [69]) that:

it would be mere speculation to find on the evidence before me that the fact that the army is coming to the end of its counterterrorism operation Zarb-e-Azb means that there is a real risk that there will be a deterioration in the security situation in the Kurram Agency so as to provide substantial grounds for believing that, as a necessary and foreseeable consequence of [the Appellant] being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as a member of the Shia Pashtun community in Parachinar.

decision of the primary judge

14    Before the primary judge, the Appellant relied upon grounds of appeal that largely mirror the grounds relied upon in this Court. Before the primary judge, the Appellant submitted that:

(1)    The Tribunal’s statutory task was to assess whether the Appellant faced a real chance of serious harm in the foreseeable future if returned to his home area in Pakistan: PJ [34].

(2)    The assessment of real chance in the foreseeable future was required to be made on the basis of probative material without extending into guesswork: PJ [35]–[36].

(3)    Predictions of the future so far removed in point of time from the life of the Appellant at the time the Appellant is returned to Pakistan as to bear insufficient connection to the reality of what the Appellant may experience are precluded: PJ [35].

(4)    The materials before the Tribunal “contained a very clear and recurrent observation that the situation in the appellant’s home area in terms of sectarian and terrorist violence was highly volatile”: PJ [36].

(5)    Although there were three reports before the Tribunal which found that there had been an “overall improvement in the security situation” in the relevant region of Pakistan, there was evidence in these reports which pointed to ongoing violence and volatility in the relevant area. These issues had been brought to the attention of the Tribunal: PJ [37].

(6)    The Tribunal had failed to engage with the Appellant’s submission that it was required to assess the likely security situation into the foreseeable future. The army was coming to the end of its counter-terrorism operation. The Appellant submitted there would likely be increased violence once the army’s counter-terrorism operation came to an end. By refusing to consider the security situation into the foreseeable future, the Tribunal had failed to carry out its statutory task: PJ [38].

(7)    The Tribunal had made no positive finding that the situation in the Appellant’s home region would remain peaceful in the reasonably foreseeable future: PJ [45]–[48].

15    The Appellant’s contentions centred on TR [63] which recorded:

[The Appellant’s] representatives submitted that it was not mere conjecture to argue that the security situation in Pakistan was likely to deteriorate, that the army was in the final stages of its operation which conceivably meant that there would be a decrease at some point in the military presence, and that ‘no reasonable decision maker is able to say with certainty that the security situation in Pakistan will not deteriorate to the same conditions as it did when the applicant experienced past harm’. However, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo … conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. I consider that it would be mere speculation to find on the evidence before me that the fact that the army is coming to the end of its counter-terrorism operation Zarb-e-Azb means that there is a real chance that there will be a deterioration in the security situation in the Kurram Agency in the reasonably foreseeable future so as to provide a substantial basis for a well-founded fear of persecution on the part of the Shia Pashtun community in Parachinar.

16    The primary judge rejected the Appellant’s submissions, finding that there was no failure or refusal by the Tribunal to consider the security situation into the foreseeable future: PJ [50]. Reading TR [63] fairly and in context, it is apparent that the Tribunal did consider the security situation into the foreseeable future. The Tribunal simply did not agree or accept the Appellant’s submissions.

17    The primary judge (at PJ [52]–[53]) observed that the word “speculation” can refer to either of two matters, based on the High Court’s reasoning in Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ):

(1)    Speculation may refer to making a finding about whether an event might or might not occur in the future. The “real chance” test invited speculation in this sense.

(2)    Speculation may be used in its primary dictionary meaning of conjecture or surmise. The “real chance” test does not invite speculation in this sense. The finding as to “real chance” must be based on probative information and not be mere guesswork or speculation in this sense.

18    The primary judge (at PJ [55]–[56]) considered that it was clear from the Tribunal’s reasons that it did not misunderstand its task and the reference in TR [63] to “speculation” was a reference to mere conjecture. The primary judge took account of:

(1)    The Tribunal’s reference at TR [63] to the High Court’s decision in Guo.

(2)    The use of the word “mere” before the word “speculation” in TR [63].

19    The primary judge found at PJ [57] that:

A fair reading of paragraph [63] of the Tribunal’s reasons indicates that the Tribunal was aware that it had to undertake a forward looking predictive assessment about what might happen in the future. The use of the word ‘mere’ in paragraph [63], however, makes it clear that the Tribunal was aware that in doing so, it ought not to engage in mere speculation or conjecture.

20    And at PJ [63]:

…When read in its entirety, the Tribunal concluded that on the evidence before it, it was not satisfied that there would be a deterioration in the security position in the applicant’s home area such that there was a proper basis for a finding that he had a well-founded fear of persecution if he were to return.

21    The primary judge found that the Tribunal had looked to the future to determine what the risk to the Appellant might be. In so doing, the Tribunal carried out its statutory task: PJ [64].

Appellant’s submissions on appeal

22    The Appellant is granted leave to rely upon his amended notice of appeal. The amended notice of appeal was filed with the Appellant’s written submissions and in advance of the written submissions of the First Respondent. There was no prejudice to the First Respondent in the grant of that leave.

23    As before the primary judge, the Appellant submitted that the Tribunal’s statutory task required it to assess whether the Appellant faced a real chance of serious harm in the foreseeable future.

24    The Appellant’s submissions to the Tribunal emphasised that the history of violence in the relevant area of Pakistan had been extremely volatile. Although there had been a period of relative peace in the region in the 12 months prior to the Tribunal hearing, that period had to be evaluated against the background of the volatile history of violence and the then current situation “did not equate to a situation where there was not still a real chance of serious harm”. Most recent events before the Tribunal hearing in August 2016 (and put to the Tribunal in a post hearing submission dated 5 September 2016) included a suicide bombing at a market in December 2015, an averted terrorist attack in a market in April 2016 and an incident where unidentified armed men sprayed bullets at a vehicle in the relevant region in June 2016. The Appellant’s submissions to the Tribunal had made clear that the situation remained highly volatile and was likely to deteriorate in the reasonably foreseeable future.

25    The Appellant submitted that the Tribunal had refused to engage with the Appellant’s submission as to the likely security situation in the foreseeable future and refused to consider the security situation into the foreseeable future. It was submitted that in failing to consider the security situation into the foreseeable future, the Tribunal had failed to carry out its statutory task.

26    The Appellant appeared to accept that the word “speculation” was capable of meaning “very improbable” or be used in the sense of prediction into the future. Speculation in the other sense was a necessary part of the statutory task: Guo at 572; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 277–278 (Brennan CJ, Toohey, McHugh and Gummow JJ); 293 (Kirby J). The Appellant’s submission was that in the present case, the Tribunal expressly refused to consider the situation into the foreseeable future, based on the probative material before it and its own findings of fact relating to the imminent end of the military operation.

27    The Appellant submitted that the primary judge’s reading of the Tribunal’s reasons was “untenable” because the Tribunal did not in fact reach any conclusion at all about the likely degree of sectarian or generalised violence into the reasonably foreseeable future.

consideration

28    There was no dispute as to the principles to be applied by the Tribunal. It was common ground that:

(1)    The assessment of the refugee and complementary protection criteria, which requires application of the “real chance” and “real risk” tests respectively, necessarily involves speculation about the likelihood of the feared events occurring in the future.

(2)    A real chance or real risk requires the risk to have a sufficient foundation though it need not be certain or probable that the Appellant will be persecuted or harmed.

(3)    The assessment must include the reasonably foreseeable future. The test involves speculation in the sense of making a prediction about the reasonably foreseeable future.

(4)    The assessment is not to be based on conjecture or surmise but must be a prediction based on an evidentiary foundation.

29    The disposition of this appeal depends upon the correct understanding of the reasoning of the Tribunal in this case. There is little to be gained from examining authorities which have turned on the construction of different reasons.

30    The conclusion of the primary judge as to the construction of the Tribunal’s reasons, and in particular of the word “speculation” as used in the context of those reasons, was correct. The Tribunal did not misunderstand its task or fail to carry it out. The Tribunal in declining to engage in “mere speculation” was not declining to make a prediction as to the foreseeable future but was declining to engage in mere guesswork: see AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; 269 FCR 168 at [60] (Middleton and Mortimer JJ). The Tribunal’s reasons disclose that the Tribunal was mindful of the need to form a view about the reasonably foreseeable future.

31    As O’Bryan J observed in BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281 at [25], the use of the word “speculative” can be problematic because it can be used to mean different things. How the word was being used in the present case in TR [63] is to be determined by reading the decision in its entirety and in context, including TR [69].

32    It was accepted that the Tribunal correctly identified the tests it was required to apply. The Tribunal summarised the principles in an attachment to its reasons. At [8]–[9] of that attachment, the Tribunal stated:

8.    Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons. Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

9.    A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429. A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

33    The Tribunal comprehensively summarised the submissions that had been made to it and formed the view (at TR [63]) that the evidence before it did not support a conclusion that there was a real risk that there would be a deterioration in the security situation in the relevant region. The Tribunal accepted that the history of the region disclosed periods of violence. The Tribunal was satisfied that the security situation had improved and although there had been incidents in the area, the Tribunal at TR [60] accepted the assessment of DFAT that there was a low level of sectarian and generalised violence. There was a peace accord in place which had led to an increase in border trade between Pakistan and Afghanistan: TR [49].

34    A central part of the Appellant’s submissions was that although the current situation (as it was before the Tribunal) had shown an overall improvement in the security situation, that current situation was about to change because the army was in the final stages of its operations in the region. The Tribunal looked to the reasonably foreseeable future but was not satisfied on the evidence before it, that the fact that the army was coming to the end of its counter-terrorism operation meant that there was a real chance that there would be a deterioration in the security situation in the relevant region in the reasonably foreseeable future: cf BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642 at [33], [35] (Greenwood J). The Tribunal was considering the evidence before it, acknowledging that circumstances were changing (in the sense that a counter-terrorism operation was coming to an end) to form a view about the foreseeable future. Read as a whole, the Tribunal was not willing to conclude that there was a real risk of a deterioration in the security situation notwithstanding that historically, the situation had been volatile. The Tribunal considered that the situation in the region had improved and on the evidence before it, was not satisfied that there was a real risk (as opposed to mere speculation) that the situation would deteriorate in the foreseeable future. The Tribunal made an informed prediction about future risk – it was just not the prediction which the Appellant contended the Tribunal ought to have made.

35    A real chance or a real risk does not equate to no risk. The conclusion that the risk was remote or speculative was open to the Tribunal on the evidence before it. The Tribunal (at TR [62]) was satisfied that there had been a significant improvement in the security situation in the relevant region. The Tribunal was satisfied that the bomb blast of December 2015 was an isolated incident being out of step with the then recent decline in violence. The Tribunal considered that the chance or risk of the situation deteriorating in the future was not well-founded and it would be mere conjecture to conclude that the situation would change for the worse (deteriorate) with the conclusion of the army’s counter-terrorism security operation. So understood, the Tribunal’s reasons considered the effect of the army’s counter-terrorism operation to have been to have secured an improvement in the security situation and it was not satisfied on the evidence before it that there was a real chance that the effect would be unwound when the army concluded that operation.

36    It may be accepted that different decision-makers may assess the information before them differently. But as the Full Court said in AKH16 at [63], the task for each decision-maker is, relevantly, to determine what she or he is satisfied the reasonably foreseeable future holds for the individual applicant on return to her or his country of nationality, in terms of her or his articulated fear of persecution.

37    The fact that the Tribunal expressed the finding it made about the foreseeable future in negative terms (i.e. that there was no real risk that the situation would deteriorate) rather than positive terms (such as, that the situation would likely remain peaceful) does not disclose a failure by the Tribunal to carry out its statutory task in accordance with the High Court’s decision in Guo at 575. As the High Court stated:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.

38    The use of the phrase “mere speculation” at TR [63] and [69] was to indicate that the Tribunal was not prepared to assume a change for the worse in the security situation on the basis of the evidence before it. The phrase “mere speculation” was being used to refer to the extent to which the evidence before the Tribunal persuaded it of the prospect that the situation would deteriorate in the foreseeable future and express a conclusion that having regard to that evidence, a finding that the situation would deteriorate in the foreseeable future would involve mere conjecture. Because it considered a deterioration in the security situation to be mere speculation, it was not persuaded that the Appellant’s fears of persecution were well-founded or that there was a real risk that he would suffer significant harm.

39    For the above reasons, the Appellant’s submission that the Tribunal failed to carry out its task and/or failed to give proper consideration to the Appellant’s claims is rejected. The Tribunal considered the claim but rejected it.

40    The appeal is dismissed with costs.

Associate:

Dated:    27 March 2025