ALK16 v Minister for Immigration
[2018] FCCA 2221
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALK16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2221 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal’s decision to affirm delegate’s decision not to grant visa – whether Tribunal failed to consider country information – Tribunal has both choice and assessment of country information on which it acts – country information referred to by Tribunal overlapped with information supplied by applicant – decision not unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 414, 430, 476 |
| Cases cited: AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 |
| Applicant: | ALK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 345 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 28 April 2017 |
| Date of Last Submission: | 28 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | D'Ambra Murphy |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed at $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 345 of 2016
| ALK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 13 April 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 1 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
Background
The applicant, a Pakistani national aged 28 years is a Shia Muslim and a Pashtun member of the Bangash Tribe who first arrived in Australia by boat on 9 August 2012 as an irregular maritime arrival.
On 17 December 2012, the applicant applied for a Protection (Class XA) visa. The applicant was assisted with his application by a registered migration agent.
By his statutory declaration made on 12 December 2012, the applicant claimed to fear harm, mistreatment and death if returned to Pakistan. The basis of his claim was that he feared harm from the Taliban and other anti-Shia organisations. The applicant stated that he feared harm due to his religion as a Shia Muslim, his imputed political opinion as a Shia Bangash tribe member, his political opinion as a member of the “Youth of Parachinar” and his membership of a particular social group being Shia Bangash Tribe members.
The applicant’s statutory declaration detailed: (a) his birth and childhood in Zeran Zor Kali, Parachinar, Kurram agency, Pakistan; (b) his life and secondary education in Peshawar; (c) a rocket attack on a bus in which he travelled and the injuries sustained to his hand; (d) the Taliban’s attempt to take over Parachinar by reason of its proximity to Afghanistan; (e) the effect of fighting between members of the Taliban and Shia tribes in Parachinar; (f) his return to Peshawar to undertake studies at University; (g) his attendance at a rally held by the Imamian Student Organisation to protest against violence and the inability of the police to protect the Shia people in Pakistan; (h) his two-day travel in 2008 through Afghanistan as the only safe means of returning to University; (i) his father’s illness and passing in 2010; (j) his involvement in a protest held over 110 days organised by the Youth of Parachinar; (j) his marriage in July 2011; (k) his continued activism as a member of the Youth of Parachinar and the ongoing inability to secure safe passage between Parachinar and Peshawar; (l) his concluding of studies in 2012 and his inability to find work by reason of the need to travel to Peshawar.
The applicant stated that it would not be possible for him to relocate safely anywhere in Pakistan.
On 26 June 2013, the applicant attended an interview to discuss his visa application and claims for protection. The applicant’s migration agent was also present at the interview by telephone as was a Pashtu interpreter.
On 24 March 2014, the delegate refused the visa application. The delegate was not satisfied that the applicant was a person to whom Australia had protection obligations. The delegate’s Decision Record gave detailed reasons for the decision to refuse the application. The delegate accepted that the applicant faced a real chance of serious harm and a real risk of significant harm under ss 36(2)(a) and 36(2)(aa) of the Act, however, it found that the applicant could relocate within Pakistan to somewhere such as Islamabad or parts of the Punjab.
On 28 March 2014, the applicant lodged, with the assistance of his migration agent, an application for a review of the delegate’s decision by the then Refugee Review Tribunal.
On 2 June 2015, the applicant was invited to appear before the Tribunal on 28 July 2015 to give evidence and present arguments relating to the issues arising in his case. Before the hearing, the applicant’s migration agent filed a submission which set out his claims for protection. The applicant appeared on that date and was represented by his migration agent. The applicant was also assisted by a Pashto interpreter.
In the course of the hearing the applicant raised new claims: (1) he said he would be harmed as an asylum seeker returning to Pakistan; (2) he said that he would be assumed to be rich and face the prospect of being kidnapped; (3) he would be targeted by Islamic State in Pakistan: Reasons, [53], [61]. He also provided the Tribunal with eight pages of country information in the nature of reports of violence in Pakistan.
By reference to the information which he provided, the applicant identified items of information of relevance to the presence of Islamic State in Pakistan. From the country information provided, my attention was drawn to the following: (1) isis-affiliates-kill-elders-in-nangarhar-province-1266; (2) ISIS recruiting 1,000 peoples in Kurram and hangu; (3) ISIS recruiting 12,000 sunni people in hangu and Kurram agency. Notably, the documents supplied by the applicant appeared to have been published in the period May-July 2015.
Tribunal decision
On 1 February 2016, the Tribunal made a decision affirming the delegate’s decision to refuse the visa application. The Tribunal provided a statement of its reasons for its decision (Reasons). The Tribunal identified and set out in full the statement which had been made by the applicant and referred to other documents relating to the applicant’s identity that had been provided: Reasons, [19]-[20].
The Tribunal considered that the applicant had significantly embellished his claims: Reasons, [37]. It considered that apart from an indiscriminate act of violence in 2006, the Taliban had not harmed the applicant for any of his activities in Parachinar, Peshawar or Islamabad: Reasons, [47]. The Tribunal also considered that the applicant would not be harmed by reason of his involvement with the Youth of Parachinar or other organisations, as a returned asylum seeker, as a person of perceived wealth, as a student or from Islamic State: Reasons, [49], [59]-[60], [63].
The Tribunal then addressed in detail the applicant’s original claim that he would be harmed in his home region of Pakistan because of his being a Shia Muslim, a Bangash Tribe member, and Shia from Pakistan, an imputed political opinion against the Taliban and his memberships of particular social groups: Reasons, [64]ff. As concerned these claims, the Tribunal considered country information in extensive detail: Reasons, [67]-[92], [96]. The Tribunal considered that, despite the widespread violence, the weight of evidence supported the conclusion that there had been a sustained improvement in the Kurram agency since 2013. The Tribunal reasoned that the chance of the applicant being killed or injured as a result of terrorist attacks was remote for the following reasons:
As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before the Tribunal that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before the Tribunal concerning the situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.
And at [101]-[102], the Tribunal stated:
Given that this improvement in the security situation in the applicant’s home region has been ongoing for an extended period, the Tribunal considers that there are grounds to determine that the prospect that the situation in the applicant’s home region will remain peaceful, now and in the reasonably foreseeable future, is quite high.
The Tribunal considers on the country information it has read, including that submitted by the applicant’s agent, and the country information included above, that the situation in the Parachinar region had improved to the extent that the chance or risk of the applicant being harmed can only be considered to be remote or speculative. The Tribunal does not accept that that applicant will be harmed on return to Parachinar for these reasons.
The Tribunal concluded that the applicant was not owed protection obligations having regard to the claims which he had made.
Procedural history
On 25 February 2016, the applicant filed an application for judicial review of the decision made by the Tribunal on 1 February 2016 together with an affidavit to which he exhibited a copy of the Tribunal’s decision but which adduced no further evidence in support of his application for judicial review.
By an Amended Response filed on 5 July 2016, the Minister contended that the application for judicial review should be dismissed on the ground that the Tribunal’s decision was not affected by jurisdictional error, was therefore a privative clause decision within the meaning of s 476(2) of the Act and for that reason not amenable to review.
On 13 April 2017, the applicant filed an amended application.
Consideration
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).[1]
[1]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [75]-[76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Certain criteria for a protection visa are set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[2] Minister for Immigration and Citizenship v SZMDS.[3] Thus, if the criteria for the grant of a protection visa are satisfied, the Tribunal must grant the application or, if not so satisfied, the visa application must be refused.
[2](2004) 78 ALJR 992, [37]-[38].
[3](2010) 240 CLR 611, [40], [102].
By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[4]
[4]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The applicant’s amended ground of review reads:
The Tribunal failed to exercise its jurisdiction to review the decision of the delegate of the First Respondent, and form the requisite state of satisfaction under s 65 of the Migration Act 1958 as required by s 414 of the Act.
Particulars
(a) At the hearing the applicant raised the concern that he would be targeted by Islamic State in Pakistan and provided to the Tribunal country information about the activities of Islamic State (CB pp 356-363).
(b) The Tribunal did not consider this country information.
(c) The Tribunal found (at [63], CB p 387) that “this claim of the applicant is based on his subjective belief that Daesh exists in Pakistan, and that it may do something in the future, and that perhaps it may harm the applicant when he is with other Shiites”.
(d) The Tribunal erred in concluding, as above at (c), given the objective country information which the applicant provided but which the Tribunal did not consider. (emphasis added)
The applicant’s attack on the Reasons was essentially confined to the Tribunal’s consideration of the new claim concerning the risk of harm from Islamic State and its failure to consider the country information on which he had relied: Reasons, [61]-[63]. The applicant submitted that the country information was relevant to establish that there was an objective basis for the applicant’s fear of harm from Islamic State.
The applicant noted that the Reasons contained no reference to the country information which he had submitted. While he acknowledged that the Reasons referred to his claim at [61]-[63] respecting the presence of Islamic State in Pakistan, the applicant noted that the Tribunal had recognised that the new claim was based upon a subjective belief that Daesh existed in Pakistan and that it may do something in the future and may perhaps harm him when he was in the company of other Shiites.
The applicant submitted that the Tribunal had erroneously found that it had received a submission from the applicant’s agent regarding the situation in Parachinar both before and after the hearing. The applicant further submitted that the Tribunal had found such submissions were “very similar over a series of applications made by different applicants that were heard by the Tribunal over a short period”: Reasons, [65].
The applicant submitted that the Tribunal had failed to exercise jurisdiction because it had failed to consider the country information which he had submitted. He relied upon the Tribunal’s failure to refer to such information at all together with its erroneous reference to a post-hearing submission filed by the applicant’s agent (when none had been filed) as indicating confusion in the Tribunal’s mind respecting the information which had in fact been provided. As the applicant was concerned, the Tribunal had had regard only to country information which did not support the applicant’s case. It was submitted that the overwhelming inference was that the Tribunal had overlooked the country information which he had provided and which, he said, provided objective support for the applicant’s stated beliefs and concerns. In support of the submission the applicant relied upon Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [46], (Kenny, Griffiths and Mortimer JJ).
In making these submissions, the applicant accepted that the Tribunal would have been entitled to examine contradictory country information and, after weighing all of it, to have accepted some in preference to other information. However, the concession so made was conditioned upon the premise that if the Tribunal had considered and rejected the country information which he had provided, it was obliged to say so.
Further, the applicant submitted that the Tribunal was not entitled to overlook, ignore or otherwise fail to consider information that the applicant had submitted and then to reject his subjective belief out of hand. On the bases set out above, it was submitted that the Tribunal had failed to exercise jurisdiction in the sense explained in MYZTS.
Most distinctly the threat posed by Islamic State or Daesh in Pakistan was addressed by the Tribunal in its Reasons at [61]-[63] and in particular, by footnotes, to those parts of the Reasons. The Tribunal considered at [61] that the new claim arose out of “speculation and reports that IS was active in Pakistan” and identified the reports to which it referred: see Reasons, [61]-[63], footnotes 5, 6, 7 and 8.
The applicant’s counsel submitted that the Tribunal hadn’t given the claim that was made “at the hearing the same degree of attention” and that the finding at [63] that the applicant’s concern was far-fetched had been reached without reference to the objective evidence that was available from the eight pages of country information which he provided.
To see the applicant’s ground of review in context it is convenient to set out the central conclusion. Concerning the claim that the applicant was concerned he would be targeted by IS in Pakistan and that IS had recruited 10,000 to 12,000 members, the Tribunal concluded at [63]:
However this claim of the applicant is based on his subjective belief that Daesh exists in Pakistan, and that it may do something in the future, and that perhaps it may harm the applicant when he is with other Shiites. The Tribunal considers that this claim is far-fetched, the Daesh involved in Pakistan creates another insurgent group to those already operating in Pakistan, it has an anti-Shia philosophy, as do other groups in Pakistan (Lashkar-e Janghvi (LEJ) and Sipah e Sahaba being two other such groups). That there are insurgent groups in Pakistan with anti-Shia philosophies is accepted by the Tribunal. However, as determined by the Tribunal, the Tribunal does not accept that the applicant faces a real chance of serious or a real risk of significant harm from insurgents groups in Pakistan, be they the Taliban, LeJ or groups of people identified as Daesh in Pakistan, as discussed in the country information below. The Tribunal considers that applicant’s claim in this regard is not made out. (emphasis added)
The Tribunal was obliged to consider the claim as advanced by the applicant. It was a belated but substantial and clearly articulated argument. The Tribunal expressly recognised that it had been made.
The determination whether there was an objective basis for the applicant’s stated fear was a central part of the predictive task of assessing whether the fear was well-founded: MZYTS.[5] The Full Court considered the proper approach to be taken to the possible legal consequences as to “what is present, and what is absent, from a Tribunal’s decision” and held that: (1) any matter not mentioned in the Tribunal’s reasons supported an inference that the Tribunal considered the matter not to be material; (2) a failure to make findings respecting a particular matter may indicate a lack of consciousness of, and a failure to consider, the matter; (3) the absence of such reference may also reveal a failure to exercise jurisdiction.[6]
[5](2013) 230 FCR 431, [35].
[6](2013) 230 FCR 431 at [55]-[62].
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs, the Full Court held:[7]
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision. (emphasis added)
French, Sackville and Hely JJ recognised the distinction between the absence of a requirement to refer to every piece of evidence (some of which may be irrelevant) or every contention (some of which may be misconceived) from an obligation to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.[8]
[7](2003) 236 FCR 593 at [45].
[8]See also SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, [81(b)-(c)] (Griffiths J).
Their Honours accepted that an inference of failure to consider an issue may be drawn from a failure to deal expressly with it but recognised the caution that was to be exercised in deciding whether to do so:[9]
But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. (emphasis added)
The reasoning confirms that a finding of fact may be subsumed in another finding of greater generality or because the Tribunal has rejected the factual premise upon which the contention depended.
[9][2003] FCAFC 184 at [47].
The statement of principle in Applicant WAEE above is frequently acknowledged: see, e.g., DFC16 v Minister for Immigration and Border Protection;[10] AGA16 v Minister for Immigration and Border Protection;[11] Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal.[12]
[10][2018] FCAFC 56 at [8] (Siopsis and Griffiths JJ).
[11][2018] FCA 628 at [30] (Moshinsky J).
[12][2017] FCAFC 124 at [163], [174], [188].
When making a decision,[13] a Tribunal is obliged to make a written statement that sets out, in particular, the reasons for the decision, the findings on material questions of fact and the evidence or other material on which the findings of fact were made.[14]
[13]Other than an oral decision: sub-s 430(1), 430D.
[14]Paras 430(1)(b)-(d).
The Reasons contain no express reference to the eight pages of country information that the applicant had provided. And although they at least identify at [20] the fact that some material was provided to it by the applicant, the reference is so vague as to deny an affirmative conclusion of an acknowledgment by the Tribunal that it was provided such country information. In addition, the Reasons at [65] erroneously refer to the provision of submissions by the applicant after the hearing when none were ever provided in fact.
The accumulation of errors supports an inference that the Tribunal may not have considered such information. However, I am less certain that an inference should be drawn that it did not in fact do so.
In the course of its Reasons, the Tribunal gave extensive consideration to country information as related to each of the applicant’s respective claims: Reasons, [25], [55]-[56], [58], [61]-[62], [67]-[92], [96]. This country information addressed both the Taliban and Islamic State (or Daesh) and spanned the period from at least February 2014 – January 2016. From this perspective it can be seen that the country information on which the Tribunal acted overlapped the entire period of the country information that had been provided by the applicant: see at [11] above.
While the Reasons contain no reference to the country information that the applicant had provided, it is not entirely clear that the Tribunal did not consider it. The Reasons refer to reports of Islamic State which are not given pin point references. For example, in the second sentence of [61] the Tribunal stated that the applicant’s claim arose out of reports that Islamic State “is active in Pakistan.”
In my opinion, the burden of the Tribunal’s Reasons at [61]-[63] in particular make plain that the Tribunal accepted Islamic State was active in Pakistan. On a fair reading of the Reasons at [67]-[92] and [96] the country information there examined by the Tribunal is not confined to the activities of the Taliban but extends to insurgents and other activist groups and would include Islamic State. Indeed, at [63] the Tribunal explicitly included Islamic State within its description of insurgent groups who were already operating in Pakistan and accepted that such insurgent groups with anti-Shia philosophies were operating in Pakistan.
In my opinion, the result in MZYTS is distinguishable from the present case. The Full Court there characterised the failure to consider more recent information as a failure to perform the statutory task imposed on the Tribunal by the Act. In the present case, no such failure occurred.
I decline to infer that the Tribunal failed to deal with the applicant’s new claim respecting Islamic State. It recognised that the claim had been made and explained why it was rejected. In doing so it identified what it considered to be relevant country information. It accepted that Islamic State was an insurgent group in Pakistan with an anti-Shia philosophy.
Further, I reject the submission that the Tribunal was obliged to provide reasons for rejecting the country information provided by the applicant (if that is what it did).
First, while the Tribunal was obliged by para 430(1)(c) to set out its findings on material questions of fact, it does not impose an obligation to make findings on every matter of fact objectively material to the decision: Minister for Immigration and Multicultural Affairs v Yusuf.[15]
[15](2001) 206 CLR 323, [4] (Gleeson CJ), [75], [77]-[78] (McHugh, Gummow and Hayne JJ).
Secondly, I consider that the submission misconceives the nature of the Tribunal’s function respecting country information. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, Gray, Tamberlin and Lander JJ said at [11]:
By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that. (emphasis added)
And at [13] their Honours concluded that:
. . . both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view . . . (emphasis added)
The reasoning in NAHI has been applied in numerous authorities including, for example, in SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 per Perram, Robertson and Wigney JJ. There the Full Court stated at [27] that:
. . . subject to principles of legal unreasonableness, the weight to be given to country information is a matter for the Tribunal.
And in CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 Tracey, Mortimer and Moshinsky JJ at [23] explained by reference to NAHI that the reason why a Tribunal had both the choice and assessment of the weight to be attached to country information was because the refugee and complementary protection criteria:
. . . insofar as they require a focus on risk of harm (whether for specific reasons or not), require the decision-maker to engage in a predictive and therefore somewhat speculative task about what is likely to happen to a person in the reasonably foreseeable future on return to her or his country of nationality
See also VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104, [26] (Beaumont, Weinberg and Crennan JJ).
Thirdly, it was not unreasonable of the Tribunal to have not given express reference to the country information supplied by the applicant in circumstances where: (a) it examined an array of country information in detail; (b) the information so examined included information relating to Islamic State; (c) the information covered the period of the information which the applicant had supplied; (d) the Tribunal accepted that Islamic State was among the insurgent groups operating in Pakistan and that such insurgent groups held anti-Shia philosophies; (e) the Tribunal made a detailed assessment of the scale of the risk of such harm in Pakistan.
Fourthly, it is clear that not every failure to refer to a fact will constitute error, let alone jurisdictional error: Minister for Immigration and Citizenship v SZGUR.[16]
[16](2011) 241 CLR 594 at [69]-[73] (Gummow J).
Fifthly, on proper analysis, I consider that the Tribunal’s reasoning at [63] correctly identified that the applicant held a subjective fear of harm from Islamic State and then explained why it considered his claim to be far-fetched. It accepted that Islamic State was among the insurgent groups operating in Pakistan which held anti-Shia philosophies. However, the Tribunal then explained that the reason why it did not accept the applicant faced a real chance of serious harm or a real risk of significant harm from insurgent groups including Islamic State was based upon its consideration of “the country information below.” This statement can only be understood as a reference to the country information which was examined in detail from [67]-[92] and [96]. As it was a matter for the Tribunal to choose that country information to which it would refer, I discern no error in the approach taken by the Tribunal to the question of country information.
Conclusion
In light of the Tribunal’s analysis of the facts and circumstances relating to the application for merits review, I am satisfied that the Tribunal brought an active intellectual process to, and gave genuine consideration to the matter including, in particular, the question whether the presence of Islamic State in Pakistan provided objective support for a conclusion whether the applicant faced a risk of relevant harm: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, [57]-[59].
It follows that I reject the applicant’s ground of review and that the application must be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 15 August 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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