AON15 v Minister for Immigration

[2016] FCCA 3270

FEDERAL CIRCUIT COURT OF AUSTRALIA

AON15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3270

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether Tribunal erred in overlooking critical aspects of evidence – whether Tribunal misconstrued s.36(2B) of the Migration Act 1958 – detailed criticism and consideration of evidence before the Tribunal – Tribunal’s decision open on the evidence – Tribunal not engaging s.36(2B) in any event – application dismissed.

Legislation:

Migration Act 1958, ss.36(2), 36(2B)

Cases cited:
Guo v Minister for Immigration and Ethnic Affairs (1997) 191 CLR 559

Applicant: AON15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 872 of 2015

Judgment of: Judge Burchardt

Hearing date: 8 November 2016

Date of Last Submission: 8 November 2016

Delivered at: Melbourne

Delivered on: 22 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Wood

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Ms Knowles

Solicitors for the First Respondent: DLA Piper

ORDERS

1. That the application filed on 6 May 2016 be dismissed.

2. That the applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 872 of 2015

AON15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed 6 May 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (then the Refugee Review Tribunal) dated 25 March 2015. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (class XA) visa. The two grounds of application are, first, that the Tribunal fell into jurisdictional error in failing to consider allegedly critical evidence provided by the applicant and, second, that the Tribunal fell into error when assessing the applicant’s claims against the criteria in s.36(2) of the Migration Act 1958 (“the Act”) including the operation of the “real chance” test.  The first respondent submits that the Tribunal’s finding in relation to the evidence was open on the facts as they stood and that the second ground misconceived the nature of the Tribunal’s decision.

2. For the reasons that follow, I think that the first respondent’s submissions are correct and the application will be dismissed with costs.

The materials in the Court Book

1. In order to understand the grounds of application, and particularly the first one, it is necessary to examine what was, in fact, before the Tribunal.  The applicant’s visa application was lodged by his agent and runs from Court Book (“CB”) 2-69 (including accompanying materials).  His claims in substance are set out in his statutory declaration at CB 28-31.  He claimed to be a citizen of Pakistan born in the Kurram Agency in Parachinar Province and asserted a fear of returning to Pakistan.

2. At paragraph 5, CB28, he deposed that, on 27 June 2009, he was subjected to mortar and shell fire in his home village.  He asserted there was a showering of bullets and he was hit in his right hand and leg and passed out.  He deposed that the injuries he suffered were caused by mortars.  He went on to depose that his village was often targeted by the Taliban because the applicant and villagers are Shia Muslims and belong to the Turi tribe, which has resisted Taliban expansion in the Kurram Agency.  He deposed to dangers in seeking to travel from Parachinar to Peshawar.

3. At paragraph 9, CB29, he deposed:

   I knew that it was too dangerous for me to remain in the Kurram Agency, however I could not go anywhere else in Pakistan.  My family name is Hussain,  I have scars from self-flagellation and all my documentation records that I am a Turi.  Wherever I would go in Pakistan, I would be instantly recognisable as a Shia and as a Turi.

4. He deposed that, if he was returned to Pakistan, he would be harmed on the street by the Taliban and other Shia organisations.  He also claimed to be at risk of harm or mistreatment because of imputed political opinion as a Turi, as being opposed to the Taliban.  He deposed he would be harmed or mistreated because of his membership of a particular social group, being Turi tribe members.

5. The application was considered by a delegate of the first respondent and the delegate’s decision, which rejected the application, is first set out at CB79 - 97.  The delegate accepted that the applicant was who he said he was and came from the Kurram Agency, Federally Administered Tribal Area (FATA), Pakistan.  The delegate noted country information available to her at CB81-82.  The delegate paraphrased the claims for protection at CB83, in my view entirely fairly.  The delegate accepted the applicant’s claims to be from the Kurram Agency (CB84).  The delegate also accepted that the applicant had been injured, including a permanent deformity in his right thumb, by the incident in June 2009.

6. The delegate went on to consider whether the applicant’s fear of persecution was well-founded and referred to the real chance test at CB86.  The delegate considered country information to assess whether the applicant’s fear of harm was objectively well-founded.  The delegate noted that, given the reports of violence in Kurram Agency, there was ongoing risk of harm to the applicant on the basis of his religion as a Shia in that agency (CB88).  The delegate ultimately found that it was reasonable for the applicant to relocate to another part of Pakistan and, accordingly, that he did not satisfy the criteria to be granted a Convention Protection visa.  Having made that finding, the delegate considered the applicant against the complementary protection criteria and came to the same conclusion, namely, that he faced a risk of significant harm in Kurram Agency but not elsewhere in the country should he relocate.

7. The applicant applied for a review to the Tribunal and the written submissions forwarded by his agent are at CB139-178.  The submissions are comprehensive and set out the applicant’s story in greater detail, although the core elements thereof remain the same.  Much of the material put forward is not now, however, relevant to the grounds under consideration.  This was because the submission and country information quoted was essentially concerned with the relocation issue and thus addressed the circumstances of Shias in Pakistan more generally.

8. I note, however, that at CB152, the following was recorded:

   Despite recent hopes for a settlement, the conflict between Pashtun Shi’ites and Sunnis continues to claim lives; between September and November 2010 at least 100 people were killed in clashes between such groups in Kurram.  In the past twelve to eighteen months Shi’ite, Turi and Bangash IDPs have been targeted for harm in the neighbouring Kohat and Hangu districts of NWFP.  In December 2010 an estimated 18 people were killed by a suicide bomber in a Shia hospital in the Pass Kili area of Hangu.  In March 2010, 12 people, 7 of whom were believed to be Shi’ite, were killed by a suicide bomber in Hangu, while en route to Parachinar in upper Kurram.  In September 2009, at least 35 people died in an attack on Shia villages in Kohat.

9. These submissions which were dated 12 December 2013 also provided annexure A, being a description of various incidents that had taken place between January and November 2013.  These all showed assaults upon Shias throughout various parts of Pakistan.

10. Country information directly relevant to this matter is contained inter alia at CB211 which shows that, in April 2011, eight persons had been killed in the lower Kurram area and two Shia police in Dera Ismail Khan.

11. At CB218 and following there is a report on 50 persons killed in three bomb blasts in a single day in Parachinar in July 2013.  At CB222-223, there is a report from March 2011 of ambushes on four minibuses in the Kurram Agency.

12. In a post-hearing submission at CB232-237, the applicant’s advisors responded to a suggestion made by the Tribunal during the hearing that “the security situation in Kurram Agency was such that Shia Muslims did not face a well-founded fear of persecution on Convention grounds” (CB233).  At paragraph 10, there is an extract from a decision of the Tribunal (otherwise constituted) dated 9 July 2014 which asserted, paraphrasing broadly, that the situation in the FATA, including the Kurram Agency, remained extremely volatile with a high degree of generalised violence that can affect Shias.

13. Relevantly, it was asserted by the Tribunal:

    Some of the recent incidents of violence in Kurram Agency include the deaths of seven people when a vehicle struck an improvised explosive device in early June 2014 and two soldiers were killed by militants on 10 June 2014.

14. At paragraph 11, CB234, the submission referred to a report of the US State Department published 28 July 2014, noting that, on 26 July, two suicide bombers killed at least 62 people and injured nearly 200 in Parachinar, Kurram Agency.

15. At paragraph 12, CB234, the submission noted a report by Minority Rights Group International, published 11 June 2014, which noted two recent cases of mass killings of Shia in the Kurram tribal region and in Kohistan.

16. In paragraph 13, CB235, the submission noted a report from the Department of Foreign Affairs and Trade (“DFAT”) “published less than 12 months ago” which asserted that (paragraph 4.21, CB236):

    Of the ten sectarian attacks that occurred in FATA in 2012, nine were in Kurram Agency, some with high casualty rates.  In July 2013, two major suicide bombs in Parachinar (which has a large Shia population) killed 60 people and injured 200. 

17. The report noted that Turi Shias, by virtue of their geographic concentration in upper Kurram, might be more easily targeted in sectarian violence than other Shias in the region.

18. In a further written submission dated 21 January 2015 (CB240-244), the applicant’s lawyers advised the Tribunal that, since the Tribunal hearing, on 18 November 2014, the applicant’s brother was killed when his van hit an unexploded mine while he was driving his nephew and niece to school.  The nephew was also killed in the explosion and the niece was seriously injured.  The submission also referred to a decision of the Tribunal given on 25 November 2014 at CB241-243 which relevantly noted that, although there had been a significant decline in sectarian violence between 2009 and 2011, attacks on Shias in the agency had reportedly continued over the previous 12 months (CB242-243).  These included a number of attacks between March 2014 and August 2014.

19. A further Tribunal decision was referred to at paragraph 5 (CB243 to 244) which, once again, accepted in December 2014 that other assaults on Shias had taken place in 2014 in the Kurram Agency.

The Tribunal’s decision

1. The Tribunal set out the application for review and the relevant law in unobjectionable terms at CB249-251.  The Tribunal next turned to the applicant’s claims and evidence and set out his statutory declaration in full at CB251-252.  Having traversed the decision of the delegate, noting that it turned on the relocation issue, the Tribunal traversed the applicant’s post-hearing submissions at paragraphs 25-27 (CB253).  I note that, at paragraph 32, CB254, the Tribunal raised with the applicant the return of two of his brothers to the family village, Nastikot:

   The Tribunal raised this with the applicant, as it is of significant concern to the credibility of the applicant’s claims that family members of his are choosing to voluntarily return to Nastikot, for holidays or other reasons.  The Tribunal put to the applicant that this raised a doubt in the Tribunal’s mind regarding the risk of harm the applicant would face on return to his home village.  The applicant stated that they had flown in from Peshawar to visit family.

2. The Tribunal also put information to the applicant recorded at paragraph 43 (CB256):

   The Tribunal put to the applicant a view that the country information regarding the Upper Kurram Agency showed that the violence in this region had significantly reduced.  The Tribunal noted that there had been an attacked (sic) that had killed 7 people in June 2014, however this attack actually occurred near Peshawar, with the bus heading towards the Upper Kurram Agency, as per the country information provided by the applicant.  This violence was not actually in Upper Kurram.  Other country information, including that referred to by other Tribunal members, including the DFAT information, was of incidents in the region that pre-dated that event.  The Tribunal put to the applicant that the violence in his home area had significantly decreased, to the point where the Tribunal was considering whether the prospect of the applicant being harmed was one that was remote or insubstantial.  The applicant stated that he believed he would be harmed in this region.

3. Having referred to UNHCR reports of return of previously displaced persons to the Kurram Agency, the Tribunal said at paragraphs 50-54 (CB258-259):

   The situation in Upper Kurram Agency in Pakistan has been of significant concern for an extended period of time.  The violence that began in April 2007 led to the movement of many people out of this region, and the violence continued intermittently for the next 6 years, with period of peace disrupted by acts of violence.  The road to Parachinar was closed for around 3 years until, peace talks and army intervention led to it being reopened. 

   The DFAT report on Shias in Pakistan, released in December 2013, and referred to by the agent in their submissions has stated:

   Overall, DFAT assesses that the situation in FATA remains very volatile and there is a high degree of generalised violence that can affect Shias.  In the past there have been high levels of communal level violence between Sunnis and Shias.  Peace agreements at various periods have reduced conflicts between the tribal and sectarian groups.  However, militant sectarian outfits remain very active in the region and have attacked rival tribal/sectarian groups, including Turi and Bangash Shias at a high rate of frequency.

   The Tribunal, including this member and others, have made decisions regarding applicants from the Parachinar region, including making findings that certain applicants cannot return to the Upper Kurram region that they have come from.  These decisions have considered the country information available, and, as the agent’s submissions point out, have determined that people cannot return to that location in Pakistan. 

   The Tribunal is however conscious that each applicant comes before the Tribunal with their own particular claims, and each Tribunal member makes a decision on the circumstances before them, including the evidence of the applicant, and relevant country information.  Each applicant’s circumstances are considered individually, and while decisions of the Tribunal in other applications provide some useful information, they are not determinative or binding on the particular set of circumstances that face a Tribunal in each case.

   In this instance, the Tribunal has considered the country information pertaining to Kurram Agency.  While there has been ongoing violence in the area for an extended period of time, the information that the Tribunal has considered is that the violence has certainly dissipated to a significant extent such that the records of violence in the area has been limited to reports from April 2014 when two soldiers were shot at.  The report from June 2014 was of an incident outside the Kurram Agency area. 

   The UNHCR has provided evidence of their attempts to return people to the regions of Kurram, lower central and upper Kurram.  These reports show that relatively significant number are willing to return, provided they are provided with appropriate assistance to rebuild shelters and develop the agricultural tools required for the purpose of maintaining their livelihoods.  While the Tribunal acknowledges that the information relates to IDPs, not individuals who are outside of the country, the Tribunal considers that it is highly relevant that there are concerted efforts by the UNHCR to return people to the region of Pakistan that the applicant comes from and that people are choosing to return voluntarily.

   The Tribunal considers that the actions of his own family members are highly instructive as to the fear of harm that is felt by his family.  The applicant acknowledged that his own brothers, who reside outside of Pakistan in Dubai, have returned to the Parachinar region where their families are located.  The Tribunal considers that this information, where they are returning despite the supposed risk of harm, is relevant in considering whether the applicant himself faces a real chance or real risk of significant harm on return to his home region.  That they are prepared to return to their homes and family in Upper Kurram is a relevant consideration in the Tribunal’s assessment of the applicant’s claim.

4. The Tribunal went on to consider the applicant’s risk of injury in the light of the 2009 attack and noted at paragraph 66-68 (CB261), relevantly:

   The Tribunal considers that the harm suffered by the applicant was not violence directed specifically at him by any group or individual.  The applicant was harmed in general shelling in the vicinity of his home.  That the applicant was affected by one such incident is accepted by the Tribunal.  The Tribunal considers that the real chance or the real risk of the applicant being caught up by such violence is one that is remote and unsubstantial, and not one that is a real chance or a real risk of occurring. 

   The Tribunal also considers that the more recent death of his applicant’s brother in November 2014 was due to the undirected violence in the area, and not any specific targeting of the applicant’s brother.  The nature of the device used is that it does not target a person because of personal attributes, aside from the likelihood of their passing that particular location.  As discussed above, the Tribunal considers that the motivation of the persons who placed the mine in a location that could cause harm to a people in the vicinity when it was triggered by was to maintain a level of general violence in the area.  That his brother and nephew were harmed in an incident over five years after the applicant had been harmed is certainly unfortunate.  However, again, considering the prospect of the applicant being harmed in such a manner in his home region, the Tribunal does not accept that the chance or risk facing the applicant is any more than remote or insubstantial.  The Tribunal does not accept that the prospect of the applicant being harmed in this manner is anything more than a remote chance or risk.

   The Tribunal has considered the prospect that the applicant will be harmed by general or indiscriminate violence in his home region of Pakistan.  The Tribunal accepts that there has been violence in the applicant’s home region in the past.  However, the Tribunal does not accept on the evidence before it that there are particular factors which will increase the risk of the applicant being harmed in the context of the sorts of terrorist attacks that have occurred previously in Pakistan.  In other words, the risk to him is the same as to any other inhabitant of this region.  Given the level at which attacks have recently occurred in the applicant’s home location, and given that the Tribunal does not accept on the evidence before the Tribunal that there are particular factors which will increase the risk of the applicant being harmed in the context of these sorts of attacks, the Tribunal considers that the chance or risk to him in the context of these sort of attacks in his home region is remote.

1. The Tribunal went on accordingly to find that the applicant did not face a risk of significant harm and was not a person to whom Australia had Convention obligations. The Tribunal, having made that conclusion turned to consideration of the complementary protection criteria in s.36(2)(aa) of the Migration Act.  The Tribunal stated, without more, “the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa)”.

The arguments of the applicant

1. In both written and oral submissions, counsel for the applicant concentrated in respect of ground 1 on a detailed analysis of the evidence that had been before the Tribunal.  It was submitted that the finding at paragraph 54 of the Tribunal’s reasons that violence had dissipated “such that the records of violence in the area have been limited to reports from April 2014 when two soldiers were shot at” was critical.  It was submitted that the finding that there were no records of violence after April 2014 was clearly wrong.

2. Counsel referred to the reference at CB242 to an attack on a Shia taxi driver by Taliban gunmen near Parachinar in April 2014 (paragraph 10.1 written submissions), a further attack in early June 2014 when seven people were killed when a vehicle struck an improvised explosive device (CB233, 243, paragraph 10.2, written submissions), two suicide bombings targeting the Shia community on 26 July 2014 in Parachinar (CB234, paragraph 10.3, written submissions), a further attack in November 2014 (CB243, paragraph 10.4, written submissions) and, finally, the death of the applicant’s brother and nephew and injury to his niece on 18 November 2014 (paragraph 10.5, written submissions).

3. It was noted that the Tribunal hearing took place in October 2014.  The Tribunal had put to the applicant that violence dissipated and he provided country information in response, including the matters to which I have just referred, which are set out at paragraph 10 of his written submissions.  It was noted, however, that the matters at paragraph 10.2 and 10.3 (the attack in early June 2014 and the attack on 26 July 2014) were no longer pressed.  Counsel accepted that the incident referred to in early June 2014 took place outside the Kurram area and that the incident referred to on 26 July 2014 was also irrelevant, as it in fact referred to 2013.

4. The submissions noted that the Tribunal had not referred to the incident in April 2014 (paragraph 10.1) involving the taxi driver and the attack in November 2014 (paragraph 10.4) on a school bus.  Counsel pointed to paragraph 67 of the Tribunal’s reasons which dealt with the death of the applicant’s brother and nephew and said that this finding was irreconcilable with the generalised finding at paragraph 54 as to a diminution in violence.  It was put that this could be characterised as a failure to consider relevant evidence or could reveal jurisdictional error as a finding so irrational it could not be sustained.

5. Finally, it was put that country information is not limited to the independent country information.  Records of violence are not limited to official reports.  It was noted that the Tribunal had recorded at paragraph 61 that it had read the country information including that submitted by the applicant’s agent. 

6. In relation to ground 2, counsel commenced with paragraphs 61 and 62 of the Tribunal’s decision (CB260) where the Tribunal made findings rejecting the applicant’s Convention-based claim.  Thereafter, the Tribunal went on to consider the complementary protection regime.

7. Counsel emphasised the finding of the Tribunal at paragraph 68 (CB261) as follows:

   The Tribunal has considered the prospect that the applicant will be harmed by general or indiscriminate violence in his home region of Pakistan.  The Tribunal accepts that there has been violence in the applicant’s home region in the past. However the Tribunal does not accept on the evidence before it that there are particular factors which will increase the risk of the applicant being harmed in the context of the sorts of terrorist attacks that have occurred previously in Pakistan.  In other words, the risk to him is the same as that to any other inhabitant of the region.  Given the level at which attacks have recently occurred in the applicant’s home location, and given that the Tribunal does not accept on the evidence before the Tribunal that there are particular factors which will increase the risk of the applicant being harmed in the context of these sorts of attacks, the Tribunal considers that the chance or risk to him in the context of these sort of attacks in his home region is remote.

8. Counsel submitted that a real chance of harm may be present where the risk is less than 50 per cent and indeed substantially less.  He referred to Guo v Minister for Immigration and Ethnic Affairs (1997) 191 CLR 559 at 572 and 574 in this regard. The gravamen of the complaint is set out at paragraphs 17 and 18 of the applicant’s written submissions. It is submitted that the Tribunal concluded that the risk to the applicant was the same as any other inhabitant of the region and that there were no particular factors that would give rise to an increase in risk to the applicant himself.

9. It is submitted that neither of those two considerations was relevant and that they reflected a misdirection of law or constructive failure to exercise jurisdiction. It was submitted that the finding the Tribunal made was designed to engage with the exclusionary provision in s.36(2B)(c) where “the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally”.  It is submitted that, in approaching the matter in this way, the Tribunal fell into jurisdictional error.

The submissions of the first respondent

1. The first respondent’s written and oral submissions commenced, unsurprisingly, with the proposition that the Tribunal’s decision must be read fairly and as a whole.  It was submitted that the finding at paragraph 54 of which so much criticism was made had to be seen in the context of the decision as a whole.  It was submitted that the information about other violence provided by the applicant had clearly been taken into consideration by the Tribunal.  It was submitted that the matters referred to in earlier decisions of the Tribunal relied on by the applicant did not bind the Tribunal.  The Tribunal was entitled to form its own views.

2. It was submitted that the two exceptions (to information provided in earlier decisions of the Tribunal) were respectively the incident in November 2014 when the applicant’s family members were killed and information about a sectarian attack in Parachinar which killed at least 62 people.  The information about the applicant’s relatives was plainly taken into account by the Tribunal.  The country information about the sectarian attack in Parachinar concerned an event in July 2013 (see CB234).

3. It was submitted that the Tribunal’s finding should be assessed bearing in mind the incident referred to in paragraph 10.1 of the applicant’s written submissions was taken from a pro-Shia Muslim news source in Pakistan.

4. In respect of ground 2, counsel submitted that the submissions made by the applicant misconstrued the Tribunal’s decision. It was submitted that, when considered properly, what the Tribunal had done was to find that the risks of harm generally in the applicant’s home area were not such that he would have anything more than a remote or insubstantial risk of serious or significant harm in the reasonably foreseeable future, this being a finding applicable to the population generally. Further, the applicant had no individual qualities that placed him at any greater risk than those other members of the community who themselves did not face a real risk of harm. It was submitted that, therefore, the criticism arising from an alleged misapplication of s.36(2B) of the Act was misconceived.

Consideration

1. In respect of ground 1, the court is faced with an evaluative process which often arises in considering claims that turn upon a detailed examination of evidence that was before the Tribunal.  I have set out earlier extracts from the Tribunal’s decision which show the matters to which it had regard.  I note that the Tribunal had regard to the applicant’s country information (see paragraph 61, CB260).  It seems clear to me also, however, that the Tribunal was aware that a certain amount of the material referred to had been the subject of findings by other Tribunal members.  The Tribunal expressly said this in paragraphs 52 and 53, noting at paragraph 53:

   each Tribunal member makes a decision on the circumstances before them, including the evidence of the applicant, and relevant country information.  Each applicant’s circumstances are considered individually, and while decisions of the Tribunal in other applications provide some useful information, they are not determinative or binding on the particular set of circumstances that face a Tribunal in each case.

2. In my view, these assertions are unobjectionable.  I note that the decision referred to the instance in April 2014 when soldiers were shot at.  The Tribunal, however, also referred at paragraph 55 and following to the endeavours by UNHCR to return persons to the Kurram region, lower central and upper, and the willingness of those persons to so return.  The Tribunal also referred to the return to the upper Kurram region, where the applicant comes from, by his own family members.  The Tribunal was quite aware of the tragic recent death of the applicant’s brother and nephew and the serious injury to his niece.

3. It is possible that the Tribunal erred in overlooking the incident referred to at CB234, paragraph 11, when two suicide bombers on July 26 killed at least 62 people and injured nearly 200 in Parachinar.  The matter seems to be in issue between the parties.  Nonetheless, an error of this sort would, in my opinion, be an error of fact and the Tribunal is able to make such errors whilst still exercising its jurisdiction.  Looked at fairly and as a whole, the reality is that there was evidence wholly outside the various attacks referred to by the parties that might support the finding the Tribunal reached.  The return of the applicant’s brothers and the return of numbers of persons through the UNHCR would, in my view, fairly sustain a finding to this effect in any event. 

4. Put shortly, I do not think that any failure by the Tribunal correctly to analyse the particular instances relied upon by the applicant vitiates the exercise of the Tribunal’s power.  As far as I can see, of the three matters relied upon by the applicant, one was expressly taken into consideration, one is disputed between the parties as to whether it took place in 2014 or 2013, and the other, for the reasons given by the first respondent, appears to be open to question.  The better and fairer view is that the Tribunal in paragraph 54 was, as the first respondent submits, referring to those matters which the Tribunal had actually accepted.  It follows that ground 1 is not made out.

5. My conclusions in relation to ground 2 can be stated more shortly.  I think that the better characterisation of the Tribunal’s decision is that the Tribunal found at paragraph 68, relevantly:

   Given the level at which attacks have recently occurred in the applicant’s home location, and given that the Tribunal does not accept on the evidence before the Tribunal that there are particular factors which will increase the risk of the applicant being harmed in the context of these sorts of attacks, the Tribunal considers that the chance or risk to him in the context of these sort of attacks in his home region is remote.

6. Properly construed, that is not an engagement with s.36(2B) of the Act. Rather, as the first respondent submits, it constitutes a finding that the general level of risk was remote and insubstantial and that the applicant possessed no individual characteristics that were likely to cause him to face any greater harm than anybody else in the region, the “anybody else” not being likely to face risk of harm in any event.

7. It therefore follows that neither ground of application has been made out and the application will be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 22 December 2016