Are17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 801

Federal Circuit and Family Court of Australia

(DIVISION 2)

ARE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 801

File number(s):

MLG 314 of 2017

Judgment of:

DEPUTY CHIEF JUDGE MERCURI

Date of judgment:

3 October 2022

Catchwords:

MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection (class XA) visa – consideration of whether the Tribunal failed to carry out its statutory task – where the Tribunal found that the risk of serious harm faced by the applicant into the reasonably foreseeable future based on the evidence before it was ‘mere speculation’ – application dismissed with costs.

Cases cited:

AKH16 v Minister for Immigration (2019) 269 FCR 168

BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

CPE15 v Minister for Immigration and Border Protection [2017] FCA 591

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 1919 CLR 559

Division:

Division 2 General Federal Law

Number of paragraphs:

66

Date of last submission/s:

28 April 2022

Date of hearing:

28 April 2022

Place:

Melbourne

Counsel for the Applicant:

Dr A McBeth

Solicitor for the Applicant:

Clothier Anderson & Associates

Counsel for the Respondent:

Mr J Barrington

Solicitor for the Respondent:

Clayton Utz

ORDERS

MLG 314 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ARE17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	3 October 2022

THE COURT ORDERS THAT:

1.The applicant’s application be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

3.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 January 2017 to affirm a decision of a delegate of the then Minister for Immigration and Border Protection (‘the Minister’) to refuse to grant the applicant a protection (Class XA) visa (‘protection visa’).

2. The applicant, by his amended initiating application filed on 31 March 2022, raises two grounds of review.  At the hearing before me, the applicant only pressed ground 1.

   Background

3. The applicant is a national of Pakistan.  He is a Shia Muslim from Parachinar in Kurram Agency in the Federally Administered Tribal Areas (‘FATA’) of Pakistan, close to the border with Afghanistan.[1]

   [1] Applicant’s Outline of Submissions filed on 7 April 2022 at paragraph [3].

4. It is said that the location of the applicant’s home area is relevant as part of his protection claim, in that he ‘faced a real chance of serious harm on return to his home area in Pakistan as a consequence of the volatile security situation in that area, including (but not limited to) the prevalence of sectarian violence carried out by the Taliban and other militants against Shias’.[2]

   [2] Applicant’s Outline of Submissions filed on 7 April 2022 at paragraph [4].

   Application for protection visa on 13 December 2012

5. The applicant arrived on Christmas Island as an irregular maritime arrival on 9 August 2012.  He applied for a visa on 13 December 2012 and the basis of the applicant’s claim for protection is set out in the applicant’s statement at pages 93 to 97 of the court book.  In particular, the applicant refers to the arrival of the Taliban in his village in mid-2007,[3] his subsequent move to Islamabad,[4] his return to Parachinar after a bomb blast in Peshawar and various injuries suffered by himself and other members of his family as a result of various insurgencies.[5]

   [3] Court book at page 93 at paragraph [4].

   [4] Court book at page 93 at paragraph [8] and following.

   [5] Court book at page 94 at paragraph [13] and following.

6. On 1 April 2014, a delegate of the Minister refused to grant the applicant’s visa.[6]

   [6] Court book at pages 188 to 212.

   Application for review at Tribunal on 30 April 2014

7. On 30 April 2014, the applicant sought a review of the delegate’s decision by the Refugee Review Tribunal.[7]  On 1 October 2015, the Tribunal affirmed the delegate’s decision.[8]  That decision was the subject of an application to the Federal Circuit Court, as it was then known, which by consent ordered on 24 May 2016 that the matter be remitted to the Tribunal.[9]

   [7] Court book at pages 215 to 216.

   [8] Court book at pages 352 to 369.

   [9] Court book at pages 419 to 420.

   Remittal of application to Tribunal on 24 May 2016

8. On 6 July 2016, the applicant was invited to attend a hearing before the Tribunal on 19 August 2016.[10]  The applicant, through his representative, provided a statutory declaration made on 16 August 2016,[11] in which he provided further information about the reasons for having left Pakistan.  He also provided some additional information, some responsive to some of the concerns raised in the initial Tribunal decision of 1 October 2015 and some containing new information which had arisen since the initial Tribunal decision was made.

   [10] Court book at pages 441 to 442.

   [11] Court book at pages 454 to 461.

9. By email dated 18 August 2016, the applicant’s representative also provided further documents and submissions in support of the applicant’s application.  This included lengthy country information in support of his claims.[12]

   [12] Court book at pages 464 to 490.

10. On 19 August 2016, the applicant attended a hearing before the Tribunal together with his representative.[13]  In addition, on 5 September 2016, the applicant’s representative provided a post-hearing submission to the Tribunal.[14]  In that submission, the applicant’s representative noted:

    As put to the applicant by the Tribunal, a primary issue in this matter is whether the current country information supports the proposition that the applicant is at risk of harm in Pakistan and in particular the applicant’s home region of Parachinar, Kurram Agency.  We note that the Tribunal referred to country information during the hearing, a summary of which was put to the applicant.  The premise of the country information was that recent reports from DFAT indicate that the incident in December 2015 was an anomaly and that there has been a significant improvement in the security situation in the region.  The Tribunal noted reports of increased trade and also trade across the Afghan and Pakistan border had increased.  The Tribunal also noted that the army operation in the area was entering its final stages and by all accounts had been a success.[15]

    [13] Court book at pages 498 to 500.

    [14] Court book at pages 504 to 508.

    [15] Court book at page 504.

11. The applicant’s representative then went on to explain why the Tribunal’s views in this regard were incorrect and could not be logically accepted.  The applicant’s representative said that ‘9 months of relative peace is not enough to satisfy the Tribunal that there is only a remote chance of harm befalling the applicant in the region’.[16]

    [16] Court book at page 505.

12. Ultimately, the applicant’s representative submitted that:

    …no reasonable decision maker is able to say with certainty that the security situation in Pakistan will not deteriorate to the same conditions as it did when the applicant experienced past harm. In addition, it cannot be disregarded that further violence may eventuate into the future.[17]

    [17] Court book at page 507.

13. On 13 January 2017, the Tribunal made its decision to affirm the delegate’s decision refusing the grant of a protection visa.

    Tribunal decision

14. The Tribunal’s decision record of 13 January 2017 is at pages 521 to 542 of the court book.

15. At paragraph [1], the Tribunal set out the factual background to this matter and the basis of the applicant’s claim for protection.  At paragraph [2], the Tribunal set out the procedural background to this matter, including the remittal by the Federal Circuit Court following the first judicial review application.

16. At paragraph [3], the Tribunal identified that the issue in the application before it was whether the applicant had a ‘well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Pakistan and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm’.[18]

    [18] Tribunal decision record dated 13 January 2017 at paragraph [3].

17. At paragraph [4], the Tribunal identified the various reasons upon which the applicant claimed to fear harm.

18. At paragraphs [5] to [7], the Tribunal considered the applicant’s ability to participate in the hearing given the evidence submitted on his behalf about his mental ill health.  The Tribunal ultimately concluded that the applicant was able to provide answers at the hearing which were responsive and that he was able to address the issues raised in a manner which demonstrated that he understood them.[19]  The Tribunal concluded, therefore, that the applicant was able to effectively participate in the hearing before it.

    [19] Tribunal decision record dated 13 January 2017 at paragraph [7].

19. The Tribunal then went on to consider each of the applicants claims at paragraphs [8] to [34] of its decision record.  At paragraphs [35] to [36], the Tribunal considered the applicant’s stated reasons for having left Pakistan.

20. At paragraphs [37] to [44], the Tribunal set out the applicant’s evidence as to the situation since he has left Pakistan, and further, at paragraphs [45] to [57], the applicant’s claims and the Tribunal’s assessment of the current situation in Parachinar.  Relevantly, the Tribunal noted the applicant’s view that the border between Pakistan and Afghanistan had never been safe and would not be safe until the Taliban was completely destroyed.[20]  The Tribunal noted the submissions made by the applicant’s representative which referred to DFAT warnings to Australians not to travel to the FATA in Pakistan and to general information about the security situation in that area.[21]

    [20] Tribunal decision record dated 13 January 2017 at paragraph [45].

    [21] Tribunal decision record dated 13 January 2017 at paragraph [46] and following.

21. In the course of the hearing on 19 August 2016, the Tribunal put various matters to the applicant which are summarised in paragraphs [49] to [51] of the decision record and which the Tribunal said suggest that the security situation in the applicant’s home area had improved.  The applicant maintained that the situation may have improved slightly whilst the army was present in the area, but as soon as the army left, the situation would become unsafe again.[22]

    [22] Tribunal decision record dated 13 January 2017 at paragraph [51].

22. At paragraphs [52] to [55], the Tribunal summarised further various matters put to the applicant at the hearing, which if accepted, would lead the Tribunal to conclude that the applicant did not have a well-founded fear of persecution, as well as the applicant’s responses to those matters.

23. At paragraphs [56] to [57], the Tribunal summarised the post-hearing submissions provided by the applicant’s representative.

24. At paragraph [58], the Tribunal set out its findings and conclusions in this matter.  Relevantly, the Tribunal noted that it assessed the applicant’s claim on the basis that he would be returning to his home in Parachinar where his family continues to live.  The Tribunal noted that it did not accept that:

    ·the applicant was ever of interest to the Taliban or any other extremist group;

    ·the applicant was threatened by members of an extremist group when he moved to Islamabad in 2008;

    ·the applicant’s father and brother were asked by the Taliban about the applicant’s whereabouts or that the Taliban threatened to kill the applicant if he was found in Pakistan; and

    ·the applicant’s father was shot by the Taliban in Islamabad in January 2014.

25. At paragraphs [59] to [63], the Tribunal sets out its detailed consideration of the country information, including that provided by the applicant’s representative in their submission.  At paragraph [60], the Tribunal accepted the applicant’s submission that there continues to be incidents in the Kurram Agency.  However, the Tribunal went on to say:

    60.… I consider that the independent evidence supports the assessment of the Australian Department of Foreign Affairs and Trade that there is a low level of sectarian violence in the FATA as a whole and a low level of generalised violence in the Kurram Agency in particular.

26. At paragraph [64], the Tribunal set out its consideration of the applicant’s submission that the Tribunal should have regard to a previous decision which considered similar issues.  The Tribunal noted that:

    64.… that decision was expressly said to be based on the particular profile and background of the applicant in that case.  I do not accept on the evidence before me that there is a real chance that [the applicant] will be persecuted for reasons of his race (as a member of the Bangash tribe), his religion (as a Shia Muslim), his imputed political opinion (against the Taliban due to his religion and his membership of the Bangash tribe) or his membership of the particular social group of ‘Shias from Parachinar’ if he returns to his home in Parachinar now or in the reasonably foreseeable future. …

27. The Tribunal also considered his further claim to fear harm as a member of a particular social group, namely, ‘Educated Shia Muslims’.[23]  The Tribunal concluded, however, that having regard to his own educational status, and the Tribunal’s assessment of the overall security situation, it did not consider there was a real chance that he would be persecuted for reasons of being a member of such a social group if he were to return to Parachinar now or in the reasonably foreseeable future.

    [23] Tribunal decision record dated 13 January 2017 at paragraph [64].

28. At paragraphs [65] to [66], the Tribunal set out its consideration of the applicant’s claim to fear harm as a result of the fact that he had spent a considerable period of time in a western country or as a failed asylum seeker, and in both cases, was not satisfied that there was a real chance that he would be persecuted on either of these grounds.

29. At paragraph [67], the Tribunal considered the applicant’s claims arising from his health concerns and concluded that there was no real chance that he would be persecuted for a convention reason arising from his health problems.

30. At paragraph [68], the Tribunal then considered the applicant’s claims cumulatively and also concluded that this too did not give rise to a well-founded fear of being persecuted for a convention reason if he were to return to Pakistan, now or in the reasonably foreseeable future.

31. The Tribunal then considered Australia’s complementary protection obligations at paragraphs [69] to [71], and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there was a real risk he would suffer significant harm. 

32. For each of these reasons, the Tribunal affirmed the applicant’s decision.[24]

    [24] Tribunal decision record dated 13 January 2017 at paragraph [73].

    Grounds of review

33. As noted, the applicant presses one ground of review in the following terms:

    1.The Tribunal constructively failed to carry out its assessment of whether the applicant faced a real chance of serious harm on return to Pakistan, in that the Tribunal failed to assess the chance of harm into the foreseeable future, having regard to the probative evidence before it as to the volatility of sectarian and generalised violence in the applicant’s home area.

    Particulars

    (a)The Tribunal relied on country information as to the security situation in a fixed point of time.

    (b)The Tribunal’s refusal to consider the chance of harm from sectarian or generalised violence into the foreseeable future, having regard to the probative evidence before it, on the ground that it would be mere speculation, constituted a failure to carry out its task of review.[25]

    [25] Amended Initiating Application filed 31 March 2022.

34. It was submitted for the applicant that the Tribunal’s statutory task was to assess whether the applicant faced a real chance of serious harm in the foreseeable future if returned to his home area in Pakistan.[26]

    [26] Applicant’s Outline of Submissions filed on 7 April 2022 at paragraph [5].

35. There is no dispute between the parties about the legal principles which apply.  As noted by her Honour, Mortimer J in CPE15 v Minister for Immigration and Border Protection:[27]

    60.The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork.  It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. …

    [27] [2017] FCA 591 at [60] cited with approval in AKH16 v Minister for Immigration and Border Protection (2018) 269 FCR 168 at [49].

36. As stated, both parties agree that these are the principles which apply.  The issue for this court is whether the Tribunal fell into jurisdictional error in undertaking its statutory task.  It is submitted for the applicant that the material before the Tribunal ‘contained a very clear and recurrent observation that the situation in the appellant’s home area in terms of sectarian and terrorist violence was highly volatile’.[28]

    [28] Applicant’s Outline of Submissions filed on 7 April 2022 at paragraph [7].

37. It was submitted that notwithstanding this, the Tribunal relied on three key reports which found that there had been an ‘overall improvement in the security situation in Kurram Agency’ and consequently, there was no real chance of serious harm for a convention reason.[29]  It is submitted for the applicant that there was evidence in these reports which itself pointed to ongoing violence and volatility in the relevant area.  Moreover, the applicant says that these issues were brought to the Tribunal’s attention, including in the applicant’s post-hearing submission.

    [29] Applicant’s Outline of Submissions filed on 7 April 2022 at paragraph [8] and following.

38. At the heart of the applicant’s submission is the proposition that whilst the Tribunal accepted that the army was coming to an end of its counter-terrorism operation, it ‘refused to engage with the applicant’s submission that it was required to assess the likely security situation into the foreseeable future’.[30]  In essence, the applicant submits that the Tribunal looked to the recent past without regarding what was likely to happen in the future, in particular, what the applicant submitted would be increased violence once the army’s counter-terrorism operation came to an end.

    [30] Applicant’s Outline of Submissions filed on 7 April 2022 at paragraph [12].

1. In this regard, the applicant submitted:

   14.By refusing to consider the security situation into the foreseeable future, particularly in light of the probative evidence before the Tribunal that the situation in the area had been highly volatile over the previous decade, as well as the evidence that there was a tangible change in the imminent end of the military operation, despite the specific urging of the applicant’s representative to do so, the Tribunal abdicated its statutory task.[31]

   [31] Applicant’s Outline of Submissions filed on 7 April 2022 at paragraph [14].

2. In support of this submission, the applicant points to the Tribunal’s findings at paragraphs [63] and [69] of its decision record.

3. Relevantly, at paragraph [63] of its decision record, the Tribunal said:

   63.[The applicant’s] representatives submitted that it was not mere conjecture to argue that the security situation in Pakistan was likely to deteriorate, that the army was in the final stages of its operation which conceivably meant that there would be a decrease at some point in the military presence, and that ‘no reasonable decision maker is able to say with certainty that the security situation in Pakistan will not deteriorate to the same conditions as it did when the applicant experienced past harm’. However, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo … conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation.  I consider that it would be mere speculation to find on the evidence before me that the fact that the army is coming to the end of its counter-terrorism operation Zarb-e-Azb means that there is a real chance that there will be a deterioration in the security situation in the Kurram Agency in the reasonably foreseeable future so as to provide a substantial basis for a well-founded fear of persecution on the part of the Shia Pashtun community in Parachinar.[32]

   [32] Tribunal decision record dated 13 January 2017 at paragraph [63].

4. It was submitted for the applicant that the country information before the Tribunal, and upon which the Tribunal relied, made it clear that the level of sectarian violence had been reduced or suppressed because of the army’s anti-terrorism operation.[33]  It was further submitted that the country information before the Tribunal showed that there had been:

   ·a history of high levels of sectarian violence in the applicant’s home area;

   ·relative calm and peace whilst the army had in place an anti-terrorism operation; and

   ·that that operation was due to come to an end.[34]

   [33] See, for example, court transcript at page 6.

   [34] Court transcript at page 8.

5. In addition, the applicant points to country information before the Tribunal about what had happened in Afghanistan once the NATO troops withdrew.[35]

   [35] Court transcript at page 8.

6. The applicant says that it is against that background that the Tribunal’s findings at paragraph [63] must be read.  The applicant further says that the fact that the Tribunal’s reasons do not expressly state what the security situation would be into the future is evidence of the fact that the Tribunal did not conclude that the risk of harm was ‘mere speculation’ in the sense of being remote.[36]

   [36] Court transcript at pages 10 to 11.

7. In support of the applicant’s submission in this regard, the applicant relies upon the Full Court decision in AKH16 v Minister for Immigration (2019) 269 FCR 168 (‘AKH16’).  The court in that case considered some of the same country information relevant to this case.

8. Relevantly, at paragraph [26] of the majority decision in that case, Middleton and Mortimer JJ referred to paragraphs [83] to [85] of the Tribunal’s decision in that matter.  Relevantly, at paragraph [84] of its decision record, the Tribunal in AKH16 said:

   84.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. (emphasis added)

9. It is submitted that there is no equivalent evaluation in the present case to that undertaken by the Tribunal in paragraph [84] of the Tribunal’s reasons in AKH16.[37]  This finding was of particular relevance to the court’s conclusion in AKH16 that the Tribunal’s decision was not affected by jurisdictional error.[38]  This, it is submitted for the applicant, is particularly relevant in circumstances where in the present case, there was evidence before the Tribunal that the anti-terrorism activity engaged in by the army was due to come to an end.

   [37] Court transcript at page 12.

   [38] See AKH16 v Minister for Immigration (2019) 269 FCR 168 at [61]-[62].

10. Counsel for the applicant submitted that there is no equivalent assessment to that made in paragraph [84] in AKH16, rather, it is submitted that the ‘Tribunal simply stops at refusing to speculate about the future and it’s that refusal that…constitutes a failure to complete its statutory task and therefore jurisdictional error’.[39]

    [39] Court transcript at page 13.

11. For the following reasons, I do not accept the applicant’s submissions.

12. When the Tribunal’s reasons are read in their entirety and fairly, and in particular the findings made by the Tribunal about the risk assessments, it is clear that the Tribunal did not fail or refuse to consider the security situation into the foreseeable future as claimed.

13. When regard is had to the full context of paragraph [63] of the decision record, it is apparent that the Tribunal did consider the security situation into the foreseeable future.  In doing so, it had regard to the applicant’s submissions in this regard.  It simply did not agree with or accept those submissions.

14. As the Minister correctly submits, whilst the Tribunal is required to undertake a predictive assessment about the foreseeable future, it is not required to engage in speculation or, to use the words of Mortimer J, ‘guesswork’ in doing so.  In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 1919 CLR 559 (‘Guo’), the High Court said:

    In the present case, for example, Einfeld J thought that the “real chance” test invited speculation and that the Tribunal had erred because it “has shunned speculation”.  If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term.  But it seems likely, having regard to the context and his Honour’s conclusions concerning the Tribunal’s reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise.  If he was, he fell into error.  Conjecture or surmise has no part to play in determining whether a fear is well-founded.  A fear is “well-founded” when there is a real substantial basis for it.  As Chan[40] shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[41]

    [40] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

    [41] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 1919 CLR 559, 572.

15. The High Court in Guo noted that there were two ways in which the term ‘speculative’ could be used.  Firstly, it could be used to mean merely a prediction of the future which does not lead to an error, as that is in fact what is required in considering whether there is a well-founded fear of persecution.  Or alternatively, it could be used in its ordinary sense of ‘conjecture or surmise’.  It is the latter that would lead a decision maker into error.

16. Likewise, at paragraph [63] of AKH16, the plurality said:

    63.… in considering an assessment of the future, there must be some degree of speculation (as distinct from guesswork) based upon present and past information.  For instance, one is speculating in this sense about the future when one is considering and making a finding as to whether further sectarian violence may occur and if so, whether a particular individual is likely to be affected by or caught up in it.  However, on the ultimate issue the question always remains that dictated by the principles outlined in Chan and Guo … The inquiry being fact intensive and involving assessment of evidence and material which is qualitative and may tend in different directions, it is also possible that different decision-makers may assess the material before them differently.  The task for each decision-maker is, relevantly, to determine what she or he is satisfied the reasonably foreseeable future holds for the individual applicant on return to her or his country of nationality, in terms of her or his articulated fear of persecution.

17. It is clear from the Tribunal’s reasons that the Tribunal did not misunderstand the statutory task before it and its reference in paragraph [63] to ‘speculation’ was a reference to mere conjecture, rather than the forward looking assessment required in determining whether the applicant had a well-founded fear of persecution.  So much is apparent from the Tribunal’s reference to the decision in Guo, suggesting that the Tribunal was aware of the two ways in which the term ‘speculation’ might be used.

18. Moreover, the use of the word ‘mere’ by the Tribunal in paragraph [63] makes clear that the Tribunal’s finding was that it would be mere speculation, in the sense of ‘guesswork’, that the fact that the counter-terrorism operation by the army was coming to an end would result in a real chance that there would be a deterioration to the security situation in the Kurram Agency in the foreseeable future.

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

20. As stated, the Tribunal’s comments at paragraph [63] must be viewed in context of its reasons as a whole.  At paragraph [58], the Tribunal noted its finding that the applicant was not ever of any interest to the Taliban or any other extremist group.  Moreover, the Tribunal did not accept that the applicant had been threatened by people who he believed to be from an extremist group.  Nor did the Tribunal accept that the applicant’s father or brother had been asked by the Taliban about the applicant’s whereabouts.

21. Similarly, at paragraphs [59] and [60], the Tribunal considered the security situation in the applicant’s home area and accepted the applicant’s submission that there had continued to be incidents in the Kurram Agency.  However, the Tribunal went on to say at paragraph [60]:

    60.… I consider that the independent evidence supports the assessment of the Australian Department of Foreign Affairs and trade that there is a low level of sectarian violence in the FATA as a whole and a low level of generalised violence in the Kurram Agency in particular. …

22. At paragraph [61], the Tribunal noted other concerns raised by the applicant about the security situation in his home area.  Relevantly, the Tribunal said:

    61.… [The applicant] said that for the last six or seven months the army had been there and this was why there was a bit of safety but when the army moved back from the area the situation would get worse.

23. At paragraph [62], the Tribunal records the applicant’s submissions in relation to the Taliban’s ongoing activity in the applicant’s home area, and in particular, the applicant’s submission that the ‘bomb blast incident in December 2015 should not be viewed as an isolated incident but as evidence of a continual effort by the Taliban in the region to displace and target Shia people …’. In this context, the Tribunal went on to say:

    62.… as referred to in the paragraph from the report of the Australian Department of Foreign Affairs and Trade quoted above, the motivation for that attack remains unclear and I consider that it is correct to view it as an isolated incident in the context of the overall improvement in the security situation in the Kurram Agency.

24. In was in this context that at paragraph [63], the Tribunal records that the applicant’s representatives ‘submitted that it was not mere conjecture to argue that the security situation in Pakistan was likely to deteriorate, that the army was in the final stages of its operation which conceivably meant that there would be a decrease at some point in the military presence, and that ‘no reasonable decision maker is able to say with certainty that the security situation in Pakistan will not deteriorate to the same conditions as it did when the applicant experienced past harm’.

25. The Tribunal’s comments in paragraph [63] which are set out in full above must be viewed in the context of the totality of its reasons.  When read in its entirety, the Tribunal concluded that on the evidence before it, it was not satisfied that there would be a deterioration in the security position in the applicant’s home area such that there was a proper basis for a finding that he had a well-founded fear of persecution if he were to return. 

26. So much is clear from the Tribunal’s reference to ‘mere speculation’, which was responsive to the applicant’s submission set out earlier in paragraph [62] above.  Similarly, the reference to a consideration of whether there would be a ‘deterioration’ of the security situation ‘in the reasonably foreseeable future’ in paragraph [63] is indicative of it undertaking a forward looking exercise.  These words further support the conclusion that the Tribunal was looking to the future to determine what the risk to the applicant might be.

27. The Tribunal’s reference to the evidence before it in paragraph [63] further emphasises that the conclusions it had reached was on the basis of the totality of the evidence to which it had regard.  As submitted by counsel for the Minister, this is simply another way of saying that the evidence before it did not provide a proper basis to conclude that the ending of the counter-terrorism organisation would lead to a worsening of the security situation.[42]

    [42] BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281 at [30].

    Conclusion

28. For each of these reasons, the applicant’s ground of review has not been made out.  I therefore make the orders set out at the commencement of these written reasons.

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       3 October 2022