ACT15 v Minister for Immigration

[2016] FCCA 626

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 626

Catchwords:
MIGRATION – Refugee application – judicial review – Pakistani Shia.

Legislation:

Migration Act 1958 (Cth), ss.36, 425

DZADQ v Minister for Immigration and Border Protection [2014] FCCA 85
DZADQ v Minister for Immigration and Border Protection [2014] FCA 754
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v Li (2013) CLR 332

Applicant: ACT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 434 of 2015

Judgment of: Judge Young

Hearing date: 25 September 2015

Date of Last Submission: 1 February 2016

Delivered at: Alice Springs

Delivered on: 23 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Solomon-Bridge

Solicitors for the Applicant: Pipers Barristers & Solicitors

Counsel for the Respondents: Mr Liveris

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application filed 6 March 2015 is dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

MLG 434 of 2015

ACT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision by the former Refugee Review Tribunal (“the Tribunal”) to affirm a decision of the Minister’s delegate not to grant him a Protection visa.

Background

1. That applicant is a young Shia Muslim from Pakistan. He claims to have a well-founded fear of persecution in Pakistan on the ground of religion, that is, his membership of the Shia sect of Islam. The Shia sect is a minority sect in Pakistan. The Pakistani Taliban and affiliated or similar extremist groups have carried out violent attacks in recent years against Shia people, including clerics, community leaders and prominent figures, and Shia mosques. The applicant’s father is a high ranking official in the Pakistan Post Office and the applicant claims that his father and he have been the targets of sectarian threats and attacks. Additionally, the applicant claims to have a well-founded fear of persecution because of his membership of a number of social groups.

2. The social groups identified by the applicant include:

   a)“young male persons who have attempted to flee from Pakistan”;

   b)“young educated male persons who do not share the views of the majority in Pakistan”;

   c)“family member of a high-ranking officer of a Government department targeted by the Taliban”;

   d)“persons who have departed Pakistan through illegal means, fled to the West and lodged an application for asylum”; and

   e)“family members of individuals who have been targeted by the Taliban and/or their affiliated insurgency groups”.

3. In addition he claimed to fear serious harm from Sunni militia groups and extremists due to his real or imputed political opinions against the Taliban and/or Taliban affiliated groups and his membership of two further particular social groups “family members of Shia Pakistani government workers” and “failed Pakistani asylum seekers returning from Western countries”.

4. The applicant left Pakistan in November 2011, later boarded a boat in Indonesia and arrived in Australia in December 2011.

5. On 15 June 2012 a delegate of the Minister determined that the applicant was not a refugee. On 9 November 2012 that decision was affirmed after a merits review by the Tribunal. On 22 January 2014 the Federal Circuit Court dismissed the applicant’s application for judicial review[1]. On 24 July 2014 the Federal Court allowed an appeal from that decision and set aside the orders of the Federal Circuit Court[2].

   [1] DZADQ v Minister for Immigration and Border Protection [2014] FCCA 85

   [2] DZADQ v Minister for Immigration and Border Protection [2014] FCA 754

6. The successful ground of appeal was that the Tribunal had failed to properly consider the country information about Pakistan. That information indicated that members of the Shia minority in Pakistan were at risk of serious harm but the Tribunal concluded that the risk to the applicant was remote. Mansfield J found that the Tribunal failed to consider the country information or refer to evidence that justified that conclusion and consequently an essential link in its chain of reasoning was missing.

7. His Honour observed that the Tribunal appeared to have proceeded by a kind of numerical analysis whereby it concluded that, as there were 40 million Shia Muslims in Pakistan, the actual risk to the applicant was remote. His Honour observed:

   If it be the case that there is nothing to distinguish the appellant from other Shia Muslims in Pakistan, provided the country information (common to both the delegate and the Tribunal) stands, it is hard to see how the conclusion of the Tribunal is sustainable. If there were some small or local sectarian violence, the picture the country information indicated would not be so dramatic or compelling. To the contrary, the picture appears to be that it is coordinated, pervasive and effective, and the Taliban are presented as a cogent and broadly spread instrument of its application. It should not be adequate, in the face of such data, to say in effect that although a significant number of Shia Muslims will be severely harmed or killed by that pervasive targeted violence because you as a target group are numerous, the chances of any particular one of you being harmed or killed is not a real one or is fanciful[3].

   [3] DZADQ v Minister for Immigration and Border Protection [2014] FCA 754, [65]

8. His Honour noted that the new Tribunal may, depending on its findings, need to consider the issue of relocation and consequential issues such as the existence of effective state protection within Pakistan[4].

   [4] ibid, [70]. His Honour referred to "Afghanistan" but obviously meant "Pakistan".

9. On 27 January 2015, after a fresh review of the applicant’s claim by a differently constituted Tribunal, the decision not to grant a Protection visa was affirmed again.

10. The applicant then sought judicial review of that decision in this Court.

11. The amended grounds of review are as follows:

    1.The second respondent committed jurisdictional error by denying the applicant procedural fairness and/or by committing an error of law and/or by failing to discharge its duty of review and/or by failing to take into account relevant considerations by reason of its failure to consider the applicant’s claims and their component integers.

    Particulars

    The second respondent failed to consider the applicant’s claims that he feared persecution by reason of his membership of a particular social group constituted by (1) young male persons who have attempted to flee from Pakistan, and/or (2) young educated male persons who do not share the views of the majority in Pakistan, respectively (Counsel for the applicant said this second particular was no longer pressed as part of this ground).

    2.The second respondent committed jurisdictional error by identifying a wrong issue and/or by asking a wrong question and/or by applying the incorrect legal test and/or by failing to consider the applicant’s claims.

    Particulars

    (a)The second respondent erred in its disposition of the applicant’s complementary protection claims by considering that the real risk of significant harm had to be by reason of a Convention ground.

    (b)[abandoned]

    (c)The second respondent erred in failing to accept that the harm which the applicant was at risk of suffering from sectarian (i.e. religious) terrorist attacks in Peshawar was not (sic) for a Convention reason.

    3.The second respondent breached s 425(1) of the Migration Act and/or its obligations of procedural fairness by failing to put the Applicant on notice of issues which arose in relation to the decision under review which were different from those which were dispositive issues for the delegate.

    Particulars

    The second respondent failed to alert the Applicant to the fact that his claim to fear persecution by reason of his membership of a particular social group constituted by young educated male persons who do not share the views of the majority in Pakistan was an issue that arose in relation to the decision under review.

The delegate’s reasons

1. The delegate found that the applicant was not a reliable witness[5]. The delegate specifically rejected the applicant’s claim that his father had been targeted by the Taliban and was the subject of a planned assassination or attack. The delegate specifically rejected the applicant’s claims that he had also been targeted by the Taliban and had been the subject of a planned attack.

   [5] Court book, page 97.

2. The applicant also claimed to fear persecution by reason of his membership of particular social groups: first, “young male persons who have attempted to flee from Pakistan”, secondly, “young educated male persons who do not share the views of the majority in Pakistan” and thirdly, “family member of a high-ranking officer of a Government department targeted by the Taliban”. The delegate did not make individual factual findings about each of these claimed social groups. However, he did refer to the applicant’s “claims to fear harm for reasons that could have included (for instance) an imputed political opinion” and went on to conclude that, “but for the reasons set out above, I have rejected these claims is false”.

3. As the delegate had previously rejected the claim that the applicant’s father was targeted it may be inferred that the claim in relation to the third social group was rejected for that reason. The reference to imputed political opinion by the delegate may be inferred to be a reference to the second social group. While the delegate rejected this aspect of the claim without any detailed reasons little more could be said because the applicant did not appear to outline any particular views of the majority that he did not share.

4. The delegate did not expressly or by implication refer to the first social group. The applicant’s statutory declaration in support of his initial application does no more than state that he fears harm or mistreatment because of his membership of that social group. No evidence or other argument was referred to in support of the claim. While the delegate’s rejection of the claim was cursory little more could be said in the circumstances.

5. However, the delegate accepted some of the applicant’s claims and listed them[6]. He specifically accepted that the applicant:

   ·    is a Pakistani national from Kurram Agency in the Federally Administered Tribal Areas,

   ·    is a Shia Moslem,

   ·    is the son of a high ranking public servant in Kurram Agency who was envied by his co-workers for attaining a high position,

   ·    was not a particular target of the Taliban or of any other extremist group,

   ·    witnessed the aftermath of the massacre of Shia people in the neighbouring village,

   ·    felt being trapped (sic) in his own village due to the activities of the extremist Sunnis,

   ·    left Pakistan in October 2011 legally with his own passport and

   ·    fears being killed on return to Pakistan due to his religion.

   [6] Court book, page 97.

6. The delegate accepted that there was a real chance the applicant would face persecution as a Shia Muslim if he returned to what the delegate found was his home in the Kurram Agency in the Federally Administered Tribal Areas (FATA) but that there was no more than a remote chance he would face persecution if he were to relocate to elsewhere in Pakistan other than the Kurram Agency and the FATA in general.

The Tribunal’s reasons

1. The task of the Tribunal was to consider whether the applicant was owed protection obligations having regard to both his particular circumstances, the risks to Shia people more generally in Peshawar (which the Tribunal found was the applicant’s home rather than Parachinar in the Kurram Agency) and elsewhere in Pakistan, the risks the applicant claimed to suffer as a result of membership of various social groups and whether the applicant was entitled to complementary protection.

2. The Tribunal noted important inconsistencies in the applicant’s account of events. It found that the applicant was not a witness of truth and that he had fabricated significant parts of his evidence[7]. It specifically rejected his claim that his father had been the subject of an attack in February 2010 and that he, the applicant, had been the subject of an attempted attack in May 2010, doubted the authenticity of the letter dated 22 September 2010 written to the police seeking protection, did not accept that in June 2010 the applicant fled to Parachinar (then in the centre of fighting) from Peshawar for his safety and did not accept that he had received sectarian threats while living in Peshawar. The Tribunal did not accept that the applicant’s father was threatened or attacked subsequent to the applicant’s departure.

   [7] Tribunal reasons, [57].

3. Consistently with these findings the Tribunal rejected the applicant’s claim that he had a well-founded fear of persecution by reason of an imputed opinion hostile to the Taliban or affiliated groups because of his father’s position or because of his membership of the social group “family members of Shia Pakistan government workers”.

4. The Tribunal considered the applicant’s situation if he were to return to Peshawar in the light of the applicant’s claim that there was no safe place for Shias in Pakistan[8]. The Tribunal referred to sectarian attacks on professionals in Karachi, sectarian attacks in other districts of Khyber Pakhtunkhwa (the province of which Peshawar is the capital) and other parts of Pakistan. It referred to a suicide bomb attack on a Shia mosque in 2013 when 15 Shias were killed. The Tribunal referred to other attacks in Peshawar which were not apparently directed specifically at Shias: a suicide bombing in a market in 2009 when more than 50 people were killed, a suicide bomb attack on a political rally protesting against electricity cuts when a prominent Shia police officer and more than 20 others were killed in 2010, a double bombing in a displaced persons camp, also in 2010, and an attack on the US consulate in which 5 security personnel were killed.

   [8] Tribunal reasons, [61].

5. The Tribunal concluded that while there had been terrorist attacks in Peshawar these “tended to be attacks on government buildings and police”[9]. It also concluded that, while there had been terrorist attacks on Shia targets, such as the mosque bombing in 2013, and Shia leaders and clerics, the information available did not suggest that ordinary Shias were targeted or that Shias born in Parachinar were specifically targeted in Peshawar. The Tribunal referred to a Department of Foreign Affairs and Trade (DFAT) document, Thematic Report – Shias in Pakistan[10], which stated that Shias fleeing generalised violence in other parts of Khyber Pakhtunkhwa have relocated to Peshawar. It was implied that this supported the conclusion that the city of Peshawar was thus safe (or relatively safe) for ordinary Shias[11].  This reasoning was presumably intended by the Tribunal to address the criticisms by Mansfield J referred to above and which were expressly acknowledged by the Tribunal in the following paragraph[12]. The Tribunal referred to the fact that the applicant was at some level of risk from attacks such as the mosque bombing in Peshawar in 2013 but concluded that, given his infrequent mosque attendance and the “prevalence” (sic, “rarity” seems to have been meant) of such mosque attacks, the risk to him was “very remote”. The Tribunal’s reasoning and conclusion on this point was not challenged in the application for judicial review. Nevertheless, I sought further submissions from the parties about whether the reference in the DFAT document to Shias relocating to Peshawar supported the conclusion of the Tribunal that the risk to the applicant from sectarian attacks in Peshawar was “very remote”[13]. Those further submissions are considered below at paragraph [48] and following.

   [9] Tribunal reasons, [68].

   [10] Tribunal reasons, [72]. This document, dated 18 December 2013, post-dated the delegate’s decision of 15 June 2012.

   [11] Tribunal reasons, [68], [72].

   [12] Tribunal reasons, [69].

   [13] Tribunal reasons, [72].

6. The Tribunal referred to the risk to the applicant from other attacks such as the market bombing of 2009, the attack on the political rally in 2010 and the attack on the US consulate but concluded that the essential and significant reason for these attacks was not a Convention reason[14] (presumably because they were indiscriminate, at least in the case of the first two).

   [14] Tribunal reasons, [73].

7. The Tribunal then considered the claims related to the applicant’s claimed illegal departure from Pakistan and the failure of his asylum seeker claims[15]. The applicant asserted that his departure was assisted by a smuggler and so he should be seen as having departed Pakistan by illegal means. It was said that he did not have a current passport. It was claimed that he would face persecution as a failed asylum seeker on his return to Pakistan. The Tribunal considered there was no evidence to support that claim. The claimant referred to rising anti-American sentiment in Pakistan and to reports of militants targeting western or foreign nationals. It was suggested that this supported the claimant’s submission that he would be imputed with anti-government or pro-Western political opinions. The Tribunal observed that the information provided by the claimant in support of this submission did not relate to failed asylum seekers.

   [15] Tribunal reasons, [75].

8. The applicant submitted that he would be imputed with an anti-government or pro-Western political opinion due to his departure from Pakistan using a smuggler, his journey to Australia, his application for asylum and his lack of a travel document. It was said that he could not return to Pakistan without coming to the attention of the authorities.

9. The Tribunal referred to DFAT advice that Western influence was pervasive in Pakistan, especially in large urban areas, and that many Pakistanis had relatives living in Western countries who frequently returned to Pakistan to visit relatives. The advice said that people were not at increased risk because of time they had spent in Western countries and there was no evidence they were subjected to discrimination or violence as a result[16].

   [16] Tribunal reasons, [77].

10. The Tribunal did not accept that the applicant had left Pakistan illegally[17]. It did not accept that his Thai visa was not genuine[18], that he would be charged with an offence, persecuted as a failed asylum seeker or persecuted for spending time in a Western country[19].

    [17] Tribunal reasons, [79].

    [18] Tribunal reasons, [80].

    [19] Tribunal reasons, [82].

11. The Tribunal considered whether the applicant was entitled to complimentary protection. It concluded that none of the grounds relating to his religion, the position of his father or any imputed political opinion by reason of membership of any of the social groups suggested by him gave rise to a belief that he was at real risk of significant harm should he be removed from Australia to Pakistan[20].

    [20] Tribunal reasons, [87].

12. The Tribunal also considered whether he was entitled to complementary protection because he left Pakistan with the assistance of a smuggler, because he sought asylum in Australia, because of the time he has spent in a Western country, because of any political opinion imputed to him or because of his membership of any of the particular social groups suggested by him[21].

    [21] Tribunal reasons, [89].

The grounds of review

1. Ground 1 asserts jurisdictional error by reason of the Tribunal’s failure to properly consider the applicant’s claim to fear persecution by reason of his membership of a particular social group constituted by young male persons who have attempted to flee from Pakistan. It is asserted that the Tribunal thereby failed to consider a component integer of the applicant’s claims and thus committed jurisdictional error[22]. Although the Tribunal expressly rejected this part of the applicant’s claim[23] the applicant asserts that the Tribunal failed to give reasons for its conclusion and so, it should be inferred, has failed to properly consider it.

   [22] Referring to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, [42].

   [23] Tribunal reasons, [84].

2. The first respondent, while appearing to concede that the Tribunal failed to give specific reasons for its rejection of this aspect of the applicant’s claim, answers the assertion by pointing out that the applicant, beyond making a bald claim in his statutory declaration in support of his initial application[24], has not put forward any additional evidence, material or argument in support of the claim. Further, according to the first respondent, because the Tribunal has given detailed consideration to the possible consequences on the applicant’s return to Pakistan as a failed asylum seeker, his extended stay in a Western country and his claimed illegal departure this, in substance, is a consideration of the applicant’s attempt to “flee from Pakistan”. The first respondent asserts that the applicant has said nothing whatsoever about the added significance, if any, of the adjectival description “young male” in the definition of the social group.

   [24] Court book, page 67.

3. The first respondent relies on the following passage from WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[25]:

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

   [25] [2003] FCAFC 184, [46].

4. I accept the first respondent’s submission for the reasons set out in the passage from WAEE. First, the Tribunal’s reasons are comprehensive and it has identified the claim, if only to reject it, and I am unwilling to infer, by reason of that fact alone, that the Tribunal has failed to properly consider it. Secondly, and more substantially, I consider that the Tribunal has given detailed consideration to the possible consequences of the applicant’s attempt to “flee Pakistan” in the course of its consideration of the other claims and it was unnecessary to make a finding on the particular matter because it was subsumed in findings of greater generality or because a factual premise – the adverse consequences of the applicant’s attempt to “flee from Pakistan” – upon which it rests have been rejected. In any event there was, in my view, no evidence or argument advanced beyond the bald claim that required further consideration by the Tribunal. This ground is rejected.

5. Ground 2(a) asserts jurisdictional error because the Tribunal misconstrued or misapprehended the complementary protection obligations arising under section 36(2)(aa) of the Migration Act 1958 as requiring a nexus with one of the five grounds of race, religion, nationality, membership of a particular social group or political opinion recognised under the Refugees Convention. The applicant asserts that this is apparent from a reading of the Tribunal’s reasons for rejection of a complementary protection obligation at paragraph [87]. The Tribunal states:

   … I do not accept that there is a real risk that [the applicant] will be marginalised in Pakistani society as a Shia Muslim or that he will face discrimination for reasons of his religion amounting to “significant harm” as defined in subsection 36 (2A) of the Migration Act…. that he will suffer significant harm because he is a Shia Muslim…, because his father holds a senior position in the Post Office in Pakistan, because of any political opinion which you may hold or which may be imputed to him or because of his membership of any of the particular social groups which he and his representatives have suggested based on those circumstances [emphases added in the applicant’s submissions].

6. The applicant asserts that the misapprehension is repeated at paragraph [89] of the Tribunal’s reasons:

   … I do not accept that … there is a real risk that he will suffer significant harm because he left Pakistan with the assistance of a smuggler, because he sought asylum in Australia, because of the time he spent in a Western country, namely Australia, because of any political opinion which may be imputed to him or because of his membership of any of the particular social groups which he and his representatives have suggested based on the circumstances [emphases added in the applicant’s submissions].

7. In his written submissions the applicant makes the additional point that the reason for any harm is irrelevant to whether or not a complementary protection obligation arises and thus the Tribunal committed jurisdictional error by taking account an irrelevant consideration.

8. The first respondent submits that the applicant did not make any claim to fear or be at risk of harm other than for a Convention reason and points to the applicant’s written submissions to the first Tribunal[26]. I am not satisfied that submission is entirely accurate. It is apparent from the passages quoted that the Tribunal considered both Convention reasons and other reasons, such as leaving Pakistan with the assistance of a smuggler, why there might be a real risk that the applicant would suffer significant harm.

   [26] Court book, page 229.

9. In my view, the applicant’s submissions misconstrue the Tribunal’s reasoning. The substance of the argument advanced by the applicant in relation to complementary protection was that he was at real risk of significant harm because he was a Shia, because his father was a high government official and because he was a member of a number of social groups. The definition of some of these social groups in turn referred to the applicant’s application for asylum, alleged illegal departure and flight to the West and supposed failure of his application for asylum and return to Pakistan. Apart from the allegation that he was at risk because he left with the assistance of a smuggler all the claims to complementary protection were couched in terms of Convention grounds. In assessing whether there was a real risk of significant harm it was necessary that the Tribunal consider and refer to the reasons for that possible harm. It is hardly conceivable that the Tribunal could consider whether there was a real risk of significant harm without reference to the reasons advanced by the applicant and, in this case, that necessarily involved reference to the Convention grounds advanced by the applicant. Further, the reference in the Tribunal’s reasons in its consideration of complementary protection to a ground other than a Convention ground, that is leaving Pakistan with the assistance of a smuggler, indicates that the Tribunal did not wrongly apprehend its task. This ground is rejected.

10. Ground 2(c) asserts jurisdictional error because the Tribunal wrongly identified attacks in Peshawar which exposed the applicant to risk as non-sectarian. The applicant criticises the reasoning in paragraph [73] of the Tribunal’s reasons, the relevant part of which is as follows:

    … I accept that there is some level of risk to [the applicant] in the context of the sort of terrorist attacks in Peshawar to which his representatives referred in their submissions and which I accept continue to occur in Peshawar such as the suicide bombing in a market in October 2009, the attack on a political rally protesting against electricity cuts in April 2010 and the attack on the US Consulate in Peshawar in the same month. However, I do not accept that one or more of the five convention reasons is the essential and significant reason for the persecution to which [the applicant] may be exposed in this context as required by paragraph 91R(1)(a) of the Migration Act. I consider that the risk to him in this context is the same as that to any other citizen of Pakistan.

11. The applicant’s submissions state that the attacks referred to by the Tribunal were sectarian attacks by the Taliban terrorists on Shias and Pashtuns (the applicant’s ethnic or linguistic group) and thus plainly sectarian and thus tied to a Convention ground.

12. I do not accept this characterisation of the Tribunal’s reasons. The attacks referred to by the Tribunal were not expressly identified as sectarian or non-sectarian but their description: an attack on a market and a political rally protesting electricity cuts, implies that they were indiscriminate terrorist attacks. The attack on the US consulate was not, presumably, a sectarian attack. The point of the Tribunal’s discussion of these attacks was to illustrate its conclusion that, while terrorist attacks had occurred in Peshawar, these were generally not directed at ordinary Shias. The ground appears to assert, in substance, that the Tribunal erred in finding facts. Unless there is irrationality or unreasonableness, which is not asserted, this is not a proper ground of judicial review. This ground is rejected.

13. Ground 3 asserts jurisdictional error because the Tribunal did not give the applicant procedural fairness. The applicant claims that the Tribunal failed to alert him to the fact that his claim to fear persecution by reason of his membership of a particular social group constituted by young educated male persons who do not share the views of the majority in Pakistan was one of the “issues arising in relation to the decision under review” for the purposes of section 425 (1) of the Migration Act.

14. The applicant relied on the following passage from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[27]:

    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

    [27] (2006) 228 CLR 152, 163, [35].

15. The applicant asserts that the Tribunal denied him procedural fairness by failing to put on notice of its finding at paragraph [84] that it did not accept the applicant’s claim that:

    there is a real chance that if he returns to Pakistan he will be killed, harmed or mistreated by Sunni Moslems for reasons of his membership of the particular social group of ‘young educated male persons who do not share the views of the majority in Pakistan’ [28].

    [28] Applicant's written submissions, paragraph [36].

16. The applicant goes on to say in his written submissions[29], referring to the passage quoted in the preceding paragraph, that the delegate did not base his decision on that claim and “nothing said by the delegate in his reasons for decision indicated that those claims are in doubt: rather the issue arising was one of relocation”.

    [29] Applicant's written submissions, paragraph [ 37].

17. I do not accept this submission. As I have described in paragraph [15] above the delegate expressly rejected the applicant’s claim to fear of persecution based on his membership of the particular social group of “young educated male persons who do not share the views of the majority in Pakistan”. That finding was one of the determinative or dispositive issues against the applicant identified by the delegate. Accordingly, this was not a new issue or, in the words of SZBEL, “some issue other than those that the delegate considered dispositive” and the Tribunal was not obliged to give the applicant notice of the potential finding. This ground is rejected.

18. These conclusions dispose of the grounds of review advanced by the applicant but, as mentioned, I sought further submissions from the parties about whether the reference in the DFAT document to Shias relocating to Peshawar supported the conclusion of the Tribunal that the risk to the applicant from sectarian attacks in Peshawar was “very remote”.

19. The applicant submitted that the fact Shias fleeing generalised violence elsewhere have relocated to Peshawar sheds no light on the ultimate question, being whether there is a real chance of persecution in Peshawar. By way of example, he said, a person may flee from one building to another to escape a captor and it may be inferred that the person subjectively believes the new building is relatively safer but the person may still be very much in danger in an absolute sense. The applicant said that the Tribunal had failed to engage in an active intellectual process with the country information, failed to address the applicant’s position in accordance with law in relation to its findings based on the country information or reached the conclusion that no rational or logical decision maker could arrive at on the same evidence, that is, was irrational, and, on any of these bases, committed jurisdictional error.

20. The respondent made a variety of submissions in response. First, he said that the question raised by the court suggested the risk of impermissible merits review. Second, he said that the tribunal was entitled to interpret and place such weight as it considered appropriate on country information, relying on NAHI v Minister of Immigration and Multicultural and Indigenous Affairs[30]. I am not sure that either of these submissions is to the point. In NAHI the appellant took issue with the accuracy of the country information. Here, in my view, the question is whether the country information or, perhaps more accurately, an element of the country information logically justifies the relevant conclusion. The respondent also submitted that the Tribunal’s finding that the risk to the applicant was “very remote” was not a positive finding requiring an evidentiary or factual basis but merely a statement that it was not satisfied that the applicant had met the relevant threshold, that is, it was not satisfied on the evidence that the risk was “any more than remote”. Given that the Tribunal couched the finding in positive terms I find that submission difficult to accept.

    [30] [2004] FCAFC 10, [10] – [14].

21. The respondent’s more cogent submission, in my view, is that the Tribunal’s relevant finding or conclusion was the result of the Tribunal giving consideration to the specific circumstances of the applicant in Peshawar. It considered the history of attacks in Peshawar and concluded that not all were sectarian in nature and those that were sectarian had been directed at high profile Shia people such as doctors, clerics and leaders. It did not consider the applicant or his father had been or would be individually targeted on that basis. The Tribunal recognised that there had been at least one sectarian attack on a Shia mosque but given the rarity of the applicant’s mosque attendance the risk to him from such an attack was “very remote”.

22. The respondent submitted that the reference to the DFAT country information about Shias relocating to Peshawar was simply one “thread of logic” among other threads leading to the Tribunal’s conclusion. In my view that submission is correct. The fact of Shias fleeing generalised violence elsewhere relocating to Peshawar does not, of itself, logically support a conclusion that the risk of harm faced by the applicant in Peshawar is very remote. I agree with the reasons advanced by the applicant in that respect. However, it is at least consistent with a conclusion reached on different bases and, as one thread in the web of inference (as opposed to a link in a chain of deduction), may be said to support, albeit weakly, the Tribunal’s conclusion. For this reason I consider that the Tribunal in reaching its conclusion has properly had regard to the country information and that conclusion possesses an evident and intelligible justification[31].

    [31] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76]

23. The application is dismissed with costs.

I certify that the preceding fity-three (53) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 23 March 2016