ANH16 v Minister for Immigration
[2017] FCCA 2373
•11 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2373 |
| Catchwords: MIGRATION – Application for judicial review – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B(3), 424A, 425 |
| Cases cited: ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 SZHKAv Minister for Immigration and Citizenship (2008) 172 FCR 1 |
| Applicant: | ANH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 480 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 11 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Dr McBeth |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Smyth |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 480 of 2016
| ANH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a Shia Muslim and member of the Bangash tribe from a village in Parachinar in the Upper Kurram Agency of the Federally Administered Tribal Areas (“FATA”) in Pakistan. The applicant came to Australia in July 2012 and applied for a protection visa in January 2013. The delegate refused to grant a protection visa on 13 March 2014, following which the applicant sought review by the Tribunal. In February 2016 the Tribunal affirmed the decision of the delegate. The applicant was represented in his hearing before the Tribunal by a registered migration agent and subsequent to the hearing before the Tribunal, made further written submissions that the Tribunal took into account.
The applicant’s claim was based upon the fact that he had worked as a minibus driver on a route between Peshawar and Parachinar. He said that there was an incident in 2007 where the minibus ahead of him in a convoy had a rocket fired at it by the Taliban, killing at least eight passengers and injuring another six, following which the security detail with the convoy returned fire. He said that in 2008 his uncle was captured by the Taliban while travelling on the road to Parachinar and killed. The applicant said that he ceased minibus driving and sold the bus after the attacks but purchased another minibus and resumed driving in 2011. The applicant said that he was later warned that the Taliban had threatened to kill Shia Muslims who were driving minibuses and said that he again ceased driving and sold his minibus and soon after came to Australia.
The Tribunal accepted the incidents with respect to the minibus and the uncle of the applicant. The Tribunal rejected the post-2011 claims on the basis of findings of credibility of the applicant. This left issues relating to generalised risk of harm and sectarian violence that may be a risk in the area in which applicant lives. The delegate found that the applicant was at risk in Parachinar but that it would be reasonable for him to relocate to a part of Pakistan where he would not face such harm and therefore refused the visa.
The Tribunal found the applicant’s evidence “regarding his father’s health to be somewhat vague and lacking in detail”. The Tribunal also noted the variations in the applicant’s evidence on various matters. Ultimately, the Tribunal reached the point where it found:
48. Based on the above, the Tribunal accepts the applicant’s claims regarding the security situation in Upper Kurram in 2007. It accepts his claims regarding the incident in which two cars which were driving in front of him were fired at, the death of his relative in 2008 when he and a number of other drivers were stopped and taken out of their vehicles and beheaded on route from Peshawar and also the kidnapping of his friend in 2009 by the Taliban. The Tribunal accepts that as a result of the unsafe conditions in Upper Kurram at that time the applicant gave up his employment as a driver and that he remained in his village working on his farm. For the reasons discussed above, it does not accept that the applicant resumed driving in 2011, for a short period of time, before he was warned against engaging in this activity. The Tribunal finds that the applicant has not come to the attention or was of any particular interest to the Taliban, any other Sunni groups in the area, Sunnis or people generally because he is Shia or for any other reason, in the past.
As a result of this finding, the Tribunal said:
49. The Tribunal has considered whether the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, if he returns to his home area in Zeran Khel Qubaadshah, in Parachinar City, in Upper Kurram, FATA because of his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western country with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency, as outlined in the applicant’s adviser’s submission to the Tribunal.
In assessing the extent of the risk to the applicant as a result of these factors, the Tribunal noted evidence provided by the applicant’s migration agent, saying:
50. The Tribunal has had regard to the independent information provided by the applicant’s adviser in the submission to the Tribunal regarding the situation in Parachinar and Kurram Agency, including DFAT Thematic Report – Shias in Pakistan, US State Department International Religious Freedom Report for 2013, the US Department of State Country Report on Human Rights Practices for 2014 and UNHCR’s Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan released on 14 May 2012. It was highlighted in the submission that the 2012 UNHCR report states that members of the Shia community, “particularly those in areas where Taliban-affiliated groups are active, such as in the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, be in need of international protection”. The adviser cited various sections of DFAT’s Thematic Report – Shias in Pakistan dated 14 April 2015 which refers to an improved situation in Kurram agency, but which also noted that there is a “high degree of generalised violence in FATA and a moderate risk of sectarian violence in some areas” and the situation in FATA remains volatile due to an ongoing counterinsurgency operations by the Pakistani security services. The adviser also referred to information in the DFAT report indicating that many internally displaced persons had returned to Kurram Agency, but that UNHCR reported in its Fact Sheet of May 2015 that no Internally Displaced Person (IDP’s) had returned to the Kurram Agency in 2015.
51. The adviser cited a decision of the RRT of May 2015 which set out continued attacks on Shias in Kurram Agency, notwithstanding the reported decline in the levels of violence since 2009 and an RRT decision of December 2014 which found that despite reports of stabilisation in the region, it found the situation in Parachinar remained volatile, particularly in relation to the situation on the Parachinar-Thall road that remained unstable.
In analysing this evidence, the Tribunal concluded:
63. While the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Upper Kurram Agency where the applicant’s village is located, as borne out by the information discussed above, the Tribunal finds on the range of sources consulted that the situation has changed significantly as compared to previous years and that there has been an improvement as a result of stabilisation in the region. The independent information provides that in Kurram Agency in particular, 2014 saw a steady improvement in the security situation from the beginning of the year, which ultimately led to the area being described as comparatively quite. The Tribunal notes that in DFAT’s country report of April 2015, it was assessed that there is a moderate risk of sectarian violence in some areas of FATA. The Tribunal does not accept on the basis of all the information before it, including information from the FATA research centre and SATP, that Upper Kurram, including Parachinar, is one of the areas where such a risk exists. The Tribunal refers to the information from the FATA research centre cited above, which reports that most of the incidents in 2014 in Kurram Agency were in Central and Lower Kurram Agency. This is confirmed in the more recent DFAT report dated 15 January 2016 in which DFAT assesses there is a low level of sectarian violence overall in the FATA.
…
65. Similarly, the Tribunal notes DFAT’s assessment in the April 2015 report that there is a high degree of generalised violence in the FATA. However, given all the country information before it, as discussed above, the Tribunal does not accept that Upper Kurram is one of the areas where this level of risk is present. This is also confirmed in the more recent DFAT report from January 2016 in which it was stated that the level of generalised violence varies throughout FATA, with this violence greatest in North Waziristan and Khyber Agencies because of ongoing military activities associated with Operation Zarb-e-Azb. DFAT assessed there is a low level of generalised violence in Kurram and Orakzai Agencies. While the Tribunal accepts that there is some level of risk to the applicant in the context of generalised violence, it finds on the basis of all the evidence before it that this risk is remote and does not accept that there is a real chance he would be targeted for harm based upon any Convention characteristics, including his Shia religion, his Bangash ethnicity, an imputed political opinion in opposition to the TTP and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar (a region with a long-standing violent conflict with the Taliban) and his extended presence in Australia (a Western country with a Christian heritage) as an asylum seeker and his membership of a particular social group of Bangash Shias from Kurram Agency.
66. The Tribunal has considered the information provided by the applicant’s adviser in a further submission received on 18 December 2015 regarding a bomb explosion which occurred on 13 December 2015 in a market place in Parachinar, in which all those killed were Shia. The adviser included reports from the Guardian and Dawn which provided that two extremist groups Lashkar-e-Jhangiv Al Alami (LeK) and Ansarul Mujahideen based in South Waziristan Agency had claimed responsibility for the attack. LeJ had explained the attack as being in retaliation for Shia support of Iran and Syrian President Bashar al-Assad and had warned Shia parents if they won’t stop their children from participating in the war in Syria, they would face more attacks. While the applicant’s adviser asserted that this attack is a clear indication that sectarian violence is still a significant issue in Parachinar and that Shia civilians are still at very high risk, the Tribunal does not accept that this type of attack, which has been extremely rare in the area over the last few years, represents a certain change in the security situation that has prevailed for several years now, despite threats of similar attacks made by L-e-J. Although the Tribunal accepts that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency including the recent attack in December 2015, the Tribunal finds on the range of sources consulted that the situation has changed significantly as compared to previous years and that there has been an improvement as a result of stabilisation in the region since the beginning of 2014. The tribunal finds that there is nothing in the country information to suggest that this recent attack threatens the truce that has been in place since 2013. Nor does the Tribunal accept on the evidence before it that it can be extrapolated from this particular incident that the security situation in Parachinar or in Kurram Agency generally, has deteriorated such that there is a real chance that any Shia member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.
As noted above, following the hearing the applicant’s migration agent made written submissions as to further violence that had occurred in the general area in December of that year (see para.66 of the decision).
The grounds that the applicant relies upon are:
1. The decision of the Tribunal is affected by jurisdictional error in that the tribunal failed to give the applicant a meaningful opportunity to give evidence and present arguments relating to issues arising in the review as required under s425 of the Migration Act.
Particulars:
a) The Tribunal put to the applicant country information derived from a 2015 DFAT report.
b) After the Tribunal hearing, in January 2016, a new DFAT report was released which differed from the 2015 DFAT report in material respects.
c) The Tribunal did not convene an additional hearing to enable the applicant to give evidence and present arguments relating to the issues arising from the new DFAT report.
d) The Tribunal relied on the 2016 DFAT report in affirming the decision.
2. The decision of the Tribunal is affected by jurisdictional error in that the Tribunal’s findings relating to the risk of sectarian violence in the applicant’s home region were irrational, as they could not be supported by the evidence from which the Tribunal purported to draw them.
Particulars:
a) The Tribunal purported to rely on an April 2015 DFAT report for the proposition that there was “a moderate risk of sectarian violence in some areas of FATA” but omitted to refer to the full sentence, namely, “Overall, DFAT assessed that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas.”
b) There was no material before the Tribunal to support the conclusion that the Upper Kurram was not an area where the risk of violence described in the 20915 DFAT report existed.
3. The decision of the Tribunal is affected by jurisdictional error in that the Tribunal applied the incorrect test in assessing whether the applicant faced a real chance of serious harm.
Particulars:
Having found that there was ongoing sectarian violence and generalised violence in the FATA and having accepted DFAT assessments of a risk of violence in those areas, the Tribunal’s finding that the applicant’s chance of facing serious harm from the Taliban was remote constituted a misunderstanding of the test for a real chance of serious harm.
4. The decision of the Tribunal is affected by jurisdictional error in that the Tribunal applied the incorrect test in assessing whether the applicant faced a real risk of significant harm.
Particulars:
Having found that there was ongoing sectarian violence and generalised violence in the FATA and having accepted DFAT assessments of a risk of violence in those areas, the Tribunal’s finding that the applicant did not face a real risk of significant harm as a consequence of being removed to Pakistan constituted a misunderstanding of the test for a complementary protection.
Ground 1
The basis of the complaint by the applicant in this ground is that the Tribunal member relied upon a report from DFAT made in January 2016. This report was issued after the oral hearing by the member. No further hearing of the applicant took place, nor were copies of the material sent to the applicant for comment.
Importantly, s.424A of the Migration Act 1958 (“the Act”) provides that country information does not need to be provided to an applicant. However, s.425 prevails over the operation of s.424A (see ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [41] to [58]). As counsel for the applicant points out, the obligations under s.425 are not a one-time obligation: SZHKAv Minister for Immigration and Citizenship (2008) 172 FCR 1 at [10], [95] and [103], and that the section requires:
425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In this case the relevant passages of the reports referred to in the quotes above of paras.63 and 65 of the decision are as follows:
(DFAT Thematic Report – Shias in Pakistan – 14 April 2015)
4.30 The majority of the Shia population in the FATA is concentrated in the Kurram and Orakzai Agencies. The population of Kurram Agency is estimated to be around 935,000, of which Shias are estimated to make up approximately 40 per cent. Prior to the influx of refugees from Afghanistan in the 1980s, Shias formed a majority in Kurram Agency.
4.31 The majority of Shias in FATA and Kurram Agency are from the Turi tribe, the only exclusively Pashtun Shia tribe which is estimated to number around 500,000, dispersed throughout Pakistan. Turi Shias are primarily located in upper Kurram, a strategic strip of land in the north of the Agency bordering Afghanistan. Sunnis occupy areas of central and lower Kurram. A main road links Parachinar in upper Kurram to Thal in lower Kurram.
4.32 In addition to Turi Shias, a Shia-minority community of Bangash live in the FATA, including in Kohat, Hangy and Orakzai and the settled areas of Khyber Pakhtunkhwa. DFAT has no information on the size of this community but credible sources have told DFAT that Shia Bangash are less visible and their Shia identities are difficult to distinguish from Sunni Bangash.
4.33 The current conflict in Kurram can be traced to the 1980s when the Turis refused to provide support to the Mujahideen and later the al-Qaeda and Taliban forces fleeing Afghanistan. There has been a history of violence between Shias and Sunnis in Kurram particularly since 2007. On the Sunni side, the TTP and the Haqqani network have been active in Kurram Agency as have Shia groups Hizballah, Mehdi Milita and Hydri Taliban.
4.34 Ongoing counterinsurgency operations by the Pakistani security services against the TTP and other militants in the FATA have resulted in a high level of generalised violence and widespread displacement of communities from the FATA. Many Shias sought support from relatives in neighbouring areas of Hangu, Kohat and Peshawar, and in Islamabad and its smaller satellite towns.
4.35 DFAT understands that a 2013 truce (‘the Murree Agreement’) between the Shia Turi and mostly Sunni Bangash communities in Kurram Agency is still in place (as of November 2014). The main road from Thal to Parachinar, Kurram’s Agency’s main town is open and is frequently used by civilian cars. Federal security forces maintain armed checkpoints on this road. This has resulted in an improved security situation in Kurram Agency.
4.36 Based on discussions with credible international non-government organisations, local representatives and residents, DFAT understands that more than 3,700 families formerly displaced from Kurram Agency have been able to return to their places of origin during 2014, including to Parachinar City and some surrounding villages in Upper Kurram. However, many Shia IDPs have remained in Kohat, Hangu, Peshawar and nearby Islamabad where they have settled and have existing support systems.
4.37 Overall, DFAT assesses that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas. However, the situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services.
(DFAT Thematic Report – Shias in Pakistan – 15 January 2016)
4.36 DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence caries throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb. DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.
It is apparent that the level of violence of a sectarian or general nature was an issue at the hearing, as recounted by the Tribunal at paras.50 and 51 of the decision, which are set out above.
This ground turns upon the meaning of “issue” under s.425 of the Act. Counsel for the applicant relied upon the decision of Bromberg J, ABV16, where his Honour analysed the operation of the section in the context of a case concerning the Chinese government’s one-child policy, where the hearing had been conducted on one basis and the evidence altered thereafter. His Honour said:
31. ... Having conducted a hearing on the basis that the Chinese government had a policy by which there were barriers to the registration of ‘black children’, and having on that basis (and fairly at the time of the hearing) invited no evidence or submissions on the status of that policy or its application to the appellant, the Tribunal came into knowledge that the policy was no longer in force. It was on that basis that the Tribunal found against the appellant. In the absence of countervailing circumstances, the Tribunal was obliged by s 425(1) to give notice to the appellant that the status of the policy was now in issue, and to invite the appellant to present evidence and make submissions at a hearing. Having not done so rendered hollow, and not meaningful, whatever opportunity to respond that had been provided by the Tribunal through the holding of the first hearing. The denial resulted in a practical injustice to the appellant.
It Is clear from this paragraph of the reasons that the hearing in ABV16 proceeded on the assumption that the one-child policy operated and there were no submissions on the status of that policy, however, whether or not the policy was actually being enforced by the Chinese government became an issue after the hearing and therefore fell within the ambit of the operation of s.425.
In this case, the DFAT evidence provided after the hearing was not in the applicant’s favour. However, at the time of the hearing, it is clear that the question of whether or not there was a risk of generalised or sectarian violence and the extent of that risk was clearly an issue, as can be seen from the Tribunal’s statement at paras.50 and 51 of their decisions (quoted above), and the further submissions made by the applicant’s migration agent after the hearing as to further events that had taken place in order to demonstrate the extent of sectarian violence.
In these circumstances, the issue was a live issue before the Tribunal and all that changed is that a further piece of evidence (the 2016 DFAT reports) became available. On ordinary principles of procedural fairness (if there were no statutory modifications in the Act) this material would have to have been put to the applicant. However, s.425 is a code for the extent to which procedural fairness must be provided. In this case the issue (although not the 2016 evidence) had been squarely raised with the applicant and was a live issue prior to the additional evidence being provided.
In these circumstances, I am not persuaded that this additional evidence had created an “issue” in the sense the word is used in s.425, as explained by Bromberg J in ABV16. Rather, this case concerns additional evidentiary material: see generally the reasoning given by Barnes FM in SZSHD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 and Bennett J in SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486. The evidentiary material did not need to be provided to the applicant as a result of s.424A.
Counsel also argued that s.422B(3) requires that the provisions be interpreted in a way that is “fair and just”: see BZAIDv Minister for Immigration and Border Protection [2016] FCA 508 at 49. It is difficult to see how that provision further broadens the operation of s.425 in the context of this case, unless it were to be read as requiring s.425 to operate in such a way as to allow the ordinary common-law rules of procedural fairness to be imported. It does not appear to me that this is the intention of the legislature in these provisions.
I therefore find that this ground has not been made out.
Ground 2
In support of ground 2 the applicant argues that the decision was so unreasonable that no reasonable decision-maker could reach it, or that it was illogical for the decision-maker to reach this decision. The applicant refers to the reasoning in para.63 (which is set out above), the relevant passages in the DFAT reports from 2015 (quoted above), and the FATA material referred to at para.56 of the decision:
56. In the Security Report for the First Quarter of 2015, it was stated that almost every agency of the tribal belt faced terrorist subversive activities in one way or the other. In relation to Kurram Agency, it was stated that areas like Shabak, in Lower Kurram Agency remained an epicentre of militant activities, mostly throughout the quarter. The Second Quarter report, covering the period April to June 2015 stated that Kurram Agency remained relatively stable in the outgoing quarter of 2015. Only 3 security related incidents were reported from the agency and out of the three, one was a clash between militants and security forces resulting in the death of two militants while in a bomb attack, one security forces personnel was injured. In another clash between the security forces and militants, two militants reportedly lost their lives while two others were injured. The report from the FATA Research Centre covering the third quarter of 2015, from July to September 2015 provided that after remaining peaceful during the past few quarters in 2015, Kurram Agency witnessed a surge in militancy and counter militancy incidents with a total of 6 incidents recorded, which was double the three of the previous quarter. Out of the 6 incidents, one was an IED blast, one was a clash between security forces and militants, while two were target killings. One incident of air strikes and one search operation was also carried out during the period. The areas which remained turbulent during the current quarter of 2015 included Spar Kot and Tora Warai in Central Kurram, Bagan area and Yaqoobi village in Lower Kurram.
The applicant also relies upon a lengthy quote given by the applicant’s migration agent from the SATP assessment, which is in the applicant’s favour, although does not mention any incidents in Kurram Agency (at Court Book 148).
The FATA material relied upon by the applicant’s agent (see the submissions at Court Book 148) gives examples from Lower and Central Kurram, but nothing from Upper Kurram, which is the applicant’s region.
The UNHCR material is quoted at paras.60 and 61, where the Tribunal member says:
60. A UNHCR report from June 2014 which detailed a review of those who had returned to a region in the Upper Kurram area stated:
2) General situation and security in areas of return
All key informants in the five villages showed satisfaction over the security situation in the area and they shared that they feel safe and secure currently in area of return. They unanimously stated that there is no restriction on their movement and they can freely move even though they also shared that for security purpose they are stopped at check posts by the security force staff where they are asked to show their identity documents such as CNIC. When entering to the area of origin, there are three checkpoints that the returnees have to cross before entering their area of origin. These checkpoints are guarded by the khassadar and Pakistani Army. It was shared that the military regularly checks identity documents of all those who pass through the checkpoints.
The majority of consulted groups stated that no major security incidents had occurred since their return to place of origin, nor harassment incident has been reported by the returnees.
When asked about the presence of land mines in the villages, all five interviewees stated that they were not aware of presence of such devices and area was cleared by the security force and political administration prior to their return. Two of the interviewed respondents indicated that were briefed about Mine and Risk Education (MRE) at Sholzan Dara embarkation point during return (UN High Commissioner for Refugees, Protection Cluster, “Post-return monitoring in areas of return Sholzan Tangi, Upper Kurrum agency – June 2014”, UN High Commissioner for Refugees, Protection Cluster, 30 June 2014, C1S2F827D91287 The Tribunal is mindful that while there has been a reported decline in the levels of violence in Kurram Agency in recent years, DFAT has advised that there continues to be ongoing insurgency operations by Pakistani security services in FATA. DFAT also assessed that there is a high level of generalised violence and a moderate risk of sectarian violence in some areas of FATA. The Tribunal notes according to FATA Research Centre’s security report for the first quarter of 2015, violence as a consequence of persistent conflict was observed in all seven agencies of FATA including Kurram Agency and recorded militant activities in the area shows that the agency still faces the menace of terrorism.
Counsel for the Minister summarises the material that forms the evidentiary basis for this finding in their submissions:
20. Secondly, it is said (Ground 2, particular (b); applicant’s submissions [28]-[31]) that there was ‘no material’ before the Tribunal ‘to support the conclusion that Upper Kurram was not an area where the risk of violence described in the 2015 DFAT report existed.’ But there was. The tenor of the objective sources to which the Tribunal referred at [54]-[61] of its decision is that Kurram Agency’s security situation in general is improving ([54] CB 202; [57] CB 203; [58] CB 203; [59] CB 203-4), so that it is said (in various sources) to be ‘quiet’ and ‘relatively stable’. The objective sources also show that the preponderance of the instability / destabilising incidents referred to occurred in Lower Kurram Agency ([56] CB 202; [59] CB 203-4). And in any event, the UNHCR report of June 2014 quoted at [60] of the DR (‘all key informants in the five villages [of Upper Kurram] showed satisfaction over the security situation in the area and they shared that they feel safe and secure currently in area of return’) cuts squarely against the applicant’s complaint that there was no basis for the Tribunal’s conclusion. Again, this strand of the complaint is really as to the substantive conclusion the Tribunal reached, not the legality of the process by which it reached that conclusion. On no view does this point meet Crennan and Bell JJ’s description of irrationality either.
The relevant extracts from the 2015 and 2016 DFAT Thematic Reports are set out above. Given that there was an evidentiary basis for the finding that logically supported it, it is not a finding that was illogical or irrational in the sense discussed by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (especially at [135]).
When looking at the material as a whole I accept the submissions from the Minister in that regard. It was open to the Tribunal to reach the conclusions that it did on the Tribunal’s assessment of material as a whole. I am not persuaded that when taken as a whole it was unreasonable in the Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) sense nor in any of the other sense identified in SZMDS at [136].
Ground 3
The applicant relies upon what was said in paras.65 and 66 of the Tribunal decision (set out above) to argue that the Tribunal failed to apply the real chance test correctly. This is a difficult argument to make in light of the words used in para.66, which follow the High Court judgment in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. I also note that at the commencement of the decision the Tribunal identified the correct test (see para.13). Ultimately I am not persuaded that the Tribunal has fallen into error in this regard.
Ground 4
In ground 4 the applicant argues that, when turning to consider the complementary protection obligations, the Tribunal limited itself to the reasons given for the convention claim and did not consider the risk to the applicant generally without regard to the various factors such as his membership of social groups, religion and the like. The Tribunal said:
75. The Tribunal has considered whether the applicant would suffer significant harm based on his Shia religion, his Bangash ethnicity, an imputed political opinion based on his Shia religion, an imputed political opinion in opposition to the Taliban and/or other extremist Sunni groups on account of his Shia Muslim religion, his Bangash ethnicity, his origins as from Parachinar and his extended presence in Australia (a western country with Christian heritage) as an asylum seeker, or his membership of a particular social group of Bangash Shias from Kurram Agency. The Tribunal is not satisfied on the basis of the country information before it and the Tribunal’s findings and reasons discussed above, regarding the improved security situation in the applicant’s home area located in Upper Kurram in Kurram Agency, FATA, and the applicant’s particular profile, including his occupation, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk he will suffer significant harm.
However, the Tribunal went on to say:
76. While the Tribunal accepts that there may continue to be some sectarian, militant and generalized violence in the FATA generally, based upon all the country information before it and the Tribunal’s earlier findings and reasons, the Tribunal does not accept that the applicant faces a real risk of significant harm because of sectarian, militant or generalized violence including in his home area in Upper Kurram.
It appears that on a fair reading of para.76 the Tribunal was making findings with respect to his general risk, as well as risk as a result of sectarian or militant violence. In any event, the case was put on the basis of the information being equally applicable to the refugee claim and the complementary protection claim, as set out in the submissions from the agent on 12 November 2015 at Court Book 139, which said:
We wish to emphasise that each of the sources of harm relied on to meet s 36(2)(a) of the Act are claimed as applicable for [the applicant’s] claim in the alternative to meet s 36(2)(aa). We also note that the country information provided below is also equally applicable to the refugee claim and complementary protection claim.
The Minister’s counsel also relies upon comments in CTN15 v Minister for Immigration & Anor [2017] FCA 611 at [7] where Davis J found that a decision maker did not have to conduct further analysis of a claim that had already been rejected under the protection criteria on the basis that there was not a real risk of significant harm.
In the present proceedings the claim failed, at least in part, on the basis that the applicant was not facing a real risk of significant harm in the Upper Kurram. For this reason I am not persuaded that a ground has been made out.
I therefore dismiss the applicant.
It was agreed that costs should follow the event on the scale, and I therefore so order.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 11 October 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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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