Asx16 v Minister for Immigration

[2018] FCCA 3089

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASX16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3089

Catchwords:

MIGRATION – Application for judicial review – protection visa – whether Tribunal erred in failing to consider evidence before it – application allowed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

First Applicant: ASX16

Second Applicant: ASY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 659 of 2016

Judgment of: Judge Riethmuller

Hearing date: 20 August 2018

Date of Last Submission: 5 September 2018

Delivered at: Melbourne

Delivered on: 31 October 2018

REPRESENTATION

Counsel for the Applicants: Mr Yuile

Solicitors for the Applicants: Sabelberg Morcos Lawyers

Counsel for the First Respondent: Mr Tran

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 18 March 2016.

2. A writ of mandamus issue directed to the Second Respondent requiring it to determine the application for review according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 659 of 2016

ASX16

First Applicant

ASY16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 18 March 2016 affirming the decision of a delegate of the first respondent not to grant the applicants’ protection visas.

2. The applicant are husband and wife and are citizens of Pakistan.  They married in February 2010.  The primary applicant husband arrived in Australia on 3 March 2008 as the holder of a student visa.  The applicant wife arrived in Australia on 11 October 2012 as a member of the family unit of her husband.

3. On 9 October 2013, the applicants applied for protection visas.  On 3 July 2014, a delegate of the first respondent refused to grant the visas.  On 17 July 2014, the applicants applied to the Tribunal for review of the delegate’s decision.  On 16 February 2016, the applicants appeared before the Tribunal to give evidence and present arguments, with the assistance of their registered migration agent and an Urdu interpreter.

4. On 18 March 2016, the Tribunal affirmed the decision not to grant the applicants’ protection visas.  On 31 March 2016, the applicants applied to this Court for judicial review of the Tribunal’s decision.

The Applicants’ Claims

1. In his protection visa application, the applicant made submissions in relation to the events that he alleges led him to depart to Australia.  These are summarised by the Tribunal at [12] as follows:

   ·While obtaining his early education in Mansehra village he also attended an Islamic school (Madrassa) to learn the holy Quran. Unknown persons with long beards would come to the Madrassa and address senior students. They talked about Jihad (holy war) and would take those who were interested.

   ·When he completed his religious education in 2006 those people came to his ceremony and sought to encourage attendees to join them in Jihad.  He asked them ‘are we here to fight or bring peace’ which angered them.  They took him to their leader who spoke again of Jihad.  They wrote him letters encouraging him to join them but he ignored the letters and came to Australia in March 2008.

   ·His experiences in Australia gave him confidence to speak his mind.  When he returned to Pakistan in January 2012 for his marriage, he spoke in public against those people and told others to avoid their teachings because they are misguiding us and our generations.

   ·This turned those people against him and they threatened him and his family with death several times through letters and in person.  On one occasion he was stopped at gun point, beaten and warned to stop or ‘wait for death’.  They injured him, his head started bleeding and he doesn't remember anything after that but when he woke up he was in hospital and his wife was crying in front of him and ‘forcing’ him to leave the country as soon as possible.  He returned to Australia in March 2012.

   ·They also injured his elderly father.

   ·When his wife's visa was granted he returned to Pakistan in September 2012 to accompany his wife back to Australia and to see his family.  Because of the threat to his life only his family knew he was in Pakistan, he stayed in a place unknown to anybody else, and his family did not allow him to go anywhere. He returned to Australia with his wife in October 2012. 

   ·He returned to Pakistan again in June 2013 to see his mother who was hospitalised.  He returned because his family and some friends told him the government had changed and the people who had threatened him had not been seen around for quite some time.

   ·During this trip these people recognised him while he was in the market.  [They] put a gun on his shoulder, blindfolded him and took him to their leader.  The leader again attempted to persuade him to join them in the Jihad.  He promised he would and requested a few days.  They agreed on the condition that he would be killed if he refused to join them.  They injured him again and again he woke up in hospital.  His family was really scared and confused as to what they should do now.

   ·He came home stressed and confused and his wife was upset to see his condition.  He made a police report against those people and placed a notice in the newspaper that his life is in danger because of those people.  Then he left his village and came to Islamabad to get an early ticket and left Pakistan forever. 

   ·He fears that if he returns he will be killed or seriously harmed by fundamentalists or extremists.  He was previously personally targeted, kidnapped, seriously assaulted and threatened.  He has a level of religious education that is attractive to these groups and his relatively young age makes him ‘an appealing candidate to carry out their horrific deeds’.  These groups will stop at nothing and he does not want to live a life in hiding and in constant fear.

   ·Despite these organisations being banned, the government is not strong enough to protect against them.  The Government has no power against the extremist Muslims and any outlawed groups.  His previous dealings with government authorities were unsatisfactory.  There is evidence suggesting the authorities are somewhat involved with these groups.

2. Written submissions were provided to the Tribunal by the applicant’s migration agent on 9 February 2016 (see Court Book ‘CB’ pp.207-236), which summarised the applicant’s claims for protection at p.4 as follows:

   The Applicant indicated that his fear of persecution is based on the following Convention grounds:

   1.  His religion being Sunni Islamic but deemed not fit for the Jihad cause.

   2.  His imputed political Opinion, having voiced anti-Taliban views to the public has attracted life-threatening risks or his life as well as his family’s life.

   a. Having defied the extremist groups to join their cause and as a result being subjected to abduction, torture or other inhumane treatment;

   b. Perceived as Anti-Taliban by turning against the religious brothers;

   c. Having fled Pakistan for a Western Country we submit upon his return to his country of original may implicate him as a spy or the fact he previously voice Anti-Taliban views publicly.

   3.  Membership of a Particular Social Groups:

   a.  Being a Religious Madrassa Graduate – Certificate of Quran Memorization

   b. Being a Sunni Muslim holding Anti-Taliban views;

   c. Being a Father to a child born outside Islamic States;

   d. Being a Father to an unborn child outside Islamic States;

   e. Being an asylum seeker living outside his country of residence for an extended period of time; we submit upon his return would implicate him as having morals or leading a western lifestyle contrary to Islamic rulings.

   For the reasons outline above, the Applicant faces a great threat to his life and has a well-founded fear of returning to Pakistan.

   Further and in the alternative, the Applicant claims protection under the Complementary Provision as he has substantial grounds for believing that on his return to Pakistan, he will be subjected to:

   1. Serious harm;

   2. Torture;

   3. Inhumane treatment and

   4. Degrading treatment and/or brutal murder

3. The submission also made claims in relation to the applicant’s mental health and referred to a letter being attached from Dr John D Buchanan dated 10 November 2015 diagnosing the applicant husband with Post-Traumatic Stress Disorder.

4. The applicants appeared before the Tribunal on 16 February 2016.  The applicant and his wife gave oral evidence both separately and together.  The applicants’ evidence is summarised by the Tribunal in [26] to [53] of the decision.  The applicants also requested that the Tribunal take oral evidence by telephone from Dr Buchanan, however he was unable to be contacted on the phone number provided by the applicants.

5. On 2 March 2016, the applicants’ migration agent forwarded a letter from the applicant’s GP indicating that the applicants were suffering from stress.

The Tribunal’s Findings

1. The Tribunal accepted that the applicant attended a Madrassa for his religious education, but did not accept that this afforded the applicant any particular status that would make him of interest to the Taliban, stating at [68] of its decision:

   68. The Tribunal accepts that, as indicated in the additional details provided to the department by the applicant’s adviser on 13 May 2014, the applicant attended a Madrassa for his religious education, on a part time basis (for at least one hour in the afternoon after attending school, for at least 3-4 days a week, from around 1994 until at least September 2003 [FN: See folios 1-2 of Departmental file CLF2014/93516].  However, the tribunal does not accept that this affords the applicant any particular status that would make him of interest to the Taliban.  As the Tribunal put to the applicants, it is very common in Pakistan for young men to attend a Madrassa to undertake religious education.  Country information [FN: Madrassas and Militancy, Islamopedia online sourced at indicates that there may be more than 20,000 Madrassas in Pakistan, that they are especially popular among Pakistan’s poorest families because they may have no other option to educate their sons and many are full time institutions which also house and feed the children, and that while there is evidence to suggest that some Madrassas have connections with militant groups there is no automatic or necessary link between Madrassas and militancy. 

2. While the Tribunal accepted that some recruitment to the Pakistan Taliban occurs through Madrassas, based on the country information, the Tribunal did not accept that all Madrassas are Taliban recruiting grounds nor that being a Madrassa graduate makes someone a particular target for recruitment by the Taliban.  The Tribunal concluded:

   71. …Having considered the country information and the applicant’s circumstances, the Tribunal concludes that the Madrassa that the applicant and his brothers attended was not a Taliban recruiting ground.

3. In relation to the applicant’s claims that the Taliban wrote threatening letters to him and his father, the Tribunal states at [72]:

   72. …The Tribunal finds it implausible that, if the applicant was attractive to the Taliban because of his status as a Madrassa graduate, the Taliban would have written such letters over an extended period rather than simply forcing the applicant to join them while he was in Pakistan up until March 2008, or acting on their warning to the applicant husband’s father in November 2010 that his whole family would be killed.  However, the applicant husband’s father remained living at the same house in Mansehra, and continued to send the applicant’s younger brother to the same Madrassa, and the applicant husband’s younger brother was not abducted or harmed by the Taliban.

4. While the Tribunal accepted that the applicant held anti-Taliban views, it did not accept that the applicant had espoused those views in a manner that would have caused him to be targeted by the Taliban.  The Tribunal found that:

   73. …Based on the evidence that the applicant husband gave to the department and to the Tribunal, which does not indicate that the applicant has spoken out strongly in public against the Taliban, and significantly, the fact that the Taliban has not acted on many claimed threats to kill the applicant, his father, or his family members, the Tribunal does not accept that the applicant has a profile as a critic of the Taliban.

5. The Tribunal did not accept that the applicant was badly beaten by the Taliban while visiting Pakistan in March 2012 and June 2013, setting out detailed reasons at [75] to [87]. 

6. The Tribunal made adverse credibility findings against the applicants and rejected their claims in relation to incidents of harm that they alleged occurred in Pakistan, stating:

   87. Having carefully and cumulatively considered all of the applicants’ evidence, the Tribunal concludes that the applicants’ are not credible witnesses.  The Tribunal finds that they have concocted the key elements of their story that the applicant husband was of interest to the Taliban because of his status as a Madrassa graduate and Hafiz-e-Quran, that he was of interest to the Taliban because of publicly aired anti-Taliban views, that he and his father were sent recruitment invitation, warning and threat pamphlets/letters by the Taliban, that he was bashed by the Taliban on to occasions, that he was abducted by the Taliban and nearly killed, that his father has been attacked and bashed by the Taliban, that his friends was beheaded by the Taliban and that the Taliban are now actively seeking both he and his younger brother.  The Tribunal finds that the applicant husband is not at risk from the Taliban either because of an actual or imputed political profile as anti-Taliban or because he is a member of a particular social group of interest to the Taliban, being Madrassa Graduates or those who can recite the Quran by heart (Hafiz-e-Quran).

7. The Tribunal considered the generalised risk to the applicants from the Taliban or other militant violence in Pakistan and concluded:

   90. …Based on the available country information, the Tribunal concludes that there is not a real chance that the applicant’s will be caught up in generalised militant related-violence or a real risk they will suffer significant harm as a consequence of such violence in the Mansehra and Abbottabad districts of Khyber Pakhtunkhwa province should they return to Pakistan now or in the foreseeable future.

8. In relation to the applicants’ claim to fear harm as returnees from the West, the Tribunal concluded that:

   91. …Having regard to the DFAT advice, the Tribunal does not accept that there is a real chance that the applicants will be persecuted because they have spent time in, had children in, and sought asylum in a western country like Australia.

9. In relation to the applicant’s mental health, the Tribunal stated:

   92. …Based on the psychiatrist’s comments and comment by the applicant husband’s general practitioner, the Tribunal accepts that the applicant has had and still has mental health problems.  The Tribunal does not accept, however, that the psychiatrist’s diagnosis indicates that the applicant husband’s account of what he claims happened to him in Pakistan is true….

   93. …While the Tribunal accepts that the applicant husband’s mental health issues may have affected his capacity to recall some events and put his case fully at the interview with the delegate, given the apprehension he may have felt at that time, the Tribunal does not accept that his mental health state explains all discrepancies and inconsistencies in his evidence, particularly given that he has had the assistance of the same adviser in preparing his case since, according to the adviser’s comments, some months before he actually lodged his Protection visa application in October 2013. 

Grounds of the Application

1. The applicant filed an Amended Application on 26 February 2018. A further Amended Application, which the Applicant seeks leave to rely upon was filed 1 August 2018. That application relies upon three grounds as follows:

   1. The Tribunal erred in its consideration of the applicants’ credibility, by:

   a. making illogical findings;

   b. making internally inconsistent findings;

   c. failing to take proper appreciation of the first applicant’s accepted mental health concerns;

   d. failing to properly consider corroborative materials.

   Particulars

   …

   2. The Tribunal erred by failing to make a finding on an integer of the applicant’s claim, being that he would be at risk of harm if returned to Pakistan, as a Sunni Muslim with expressed anti-Taliban views.

   Particulars

   …

   3. The Tribunal erred by failing to apply the correct test when considering the chance of the applicants being harmed or arbitrarily deprived of life due to generalised violence. The Tribunal erred by undertaking a statistical analysis rather than application of the real chance or real risk test, divorced from the particular circumstances of the applicants.

Ground One

1. Ground one was drawn particularly widely, but pursued at the hearing with respect to the approach that the Tribunal member took to claims that the applicant had attended at a hospital to have stitches to a cut on his scalp following his claims of being attacked by the Taliban.  The attendance at the hospital was said to be evidenced by a slip from the hospital which was referred to by the Tribunal in [13], last dot point, as follows:

   Copy of ‘Out Patients Departments’ slip from the King Abdullah Teaching Hospital Mansehra, dated 12/3/2012, for [the applicant], indicating that the patient was brought by a police constable with a bleeding wound on the scalp which was stitched and dressed [FN: See folios 104-105 of Department file CLF2013/246411].

2. At the original hearing of this matter, the Court Book did not contain a copy of the document from the hospital, however, it was later provided in a Supplementary Court Book and the parties were given an opportunity to make post-hearing submissions in that regard. 

3. The document itself was rejected by the Tribunal, along with a number of other pieces of documentary evidence provided by the applicant.  The Tribunal said:

   79. The Tribunal also notes that the applicant has provided a range of documents (and translated versions of these documents) which are dated in the period from 10 to 15 June, following the receipt of a claimed fourth letter to the applicant from the Taliban, dated 8 June 2013. The Tribunal finds these Affidavits, police report and public notices placed in Urdu newspapers to be self-serving. It appears the applicant husband had more regard to procuring documentation to support a Protection visa claim than he did to fleeing any threat to him from the Taliban. In light of country advice from DFAT regarding the prevalence and nature of document fraud in Pakistan [FN: DFAT Country Information Report, Pakistan, 15 January 2016, section 5.46], the Tribunal gives no weight to any of the claimed police reports, letters from the Taliban, affidavits, public notices, or hospital outpatient treatment slips provided by the applicants in support of their application. The DFAT advice indicates that document fraud is endemic in Pakistan, particularly those forms of documentation not issued by a competent central authority, such as the National Database and Registration Authority (NADRA). DFAT comments that it is relatively simple to fraudulently produce police issued First Information Reports (FIRs) using existing FIR book numbers and that it is aware of numerous cases of false documents, including medical records, being issued in a legitimate format. DFAT also comments that Pakistan journalists have advised that people can publish false stories in newspapers for a fee. (emphasis added)

1. It was argued that this paragraph unreasonably rejected all of the documents that the applicant provided. 

2. The police reports and public notices referred to in that paragraph, when one reviews them in the Court Book, do have the appearance of self-serving documents. For example, the newspaper notices were published by the applicant saying that he is being threatened, and the attendance report from the police station recounting him advising the police that he is worried and that if there is any ‘future news or event I will get in touch with this Police Station.  This report is for information’: see CB p.91.  Identifying these documents as self-serving, is not a legally unreasonable basis for the Tribunal to discount the weight to be placed upon them.  That is, the fact that the documents were generated by the applicant or simply recount the applicant’s version is the essence of a self-serving document.

3. However, two of the affidavits are from persons other than the applicant, one from his brother (see CB p.101) and one from his father (see CB p.102).  Unlike many of the other documents that simply recount what the applicant has told the purported author of the document, the affidavit of the brother, recounts information known to the brother from his own knowledge.  The brother states that, ‘We are receiving threatening letters’ with respect to the applicant and that was why, ‘we want to send [the applicant] to Australia’.  To this extent, it does not appear to be a self-serving document, but rather independent evidence of the brother, if the brother in fact signed the affidavit. 

4. The Tribunal member does not conclude that the hospital report is self-serving. It is not ‘self-serving’, as it appears to be a document recounting observations by a third person from their own knowledge, rather than the hospital staff simply recounting what they are told by the applicant 

5. The hospital note is ‘given no weight’ on the basis that country information from DFAT indicates that document fraud is prevalent in Pakistan, or indeed endemic in Pakistan, particularly with respect to documents not covered by the National Database & Registration Authority.  The Tribunal member does not appear to directly consider the hospital documents in the context of this case, but deal with them simply on the basis that the DFAT advice shows that document fraud is endemic and the generalised observation about self-serving documents.

6. The Tribunal considered the events said to give rise to the injury in some detail and rejected the applicant’s evidence on the basis of his credibility with respect to those events.  The applicants rely upon the hospital evidence as some form of corroboration for the events that the applicant says left him with injuries (as is recounted at [78] of the Tribunal’s decision). 

7. The question arises as to whether or not it was open to the Tribunal to reject the applicant’s account, even if there was evidence of attending at a hospital.  Clearly, it was open to the Tribunal to do so.  The injury for which the applicant attended at hospital could have been caused by an alternative mechanism.  In light of the rejection of the applicant’s evidence on the basis of strong findings against his credibility, it was open to the Tribunal to reject the hospital records, particularly in light of the DFAT evidence.  In this sense, the argument is not dissimilar to that considered by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. Pursuing this line, counsel for the first respondent provided a possible line of reasoning that the Tribunal may have taken with respect to the hospital documents, saying (at [5] of the supplementary submissions filed 5 September 2018):

   5. Moreover, the document would appear to be inconsistent with the account that the first applicant gave about his assault.  As the Tribunal recorded at CB 265 [77], he said that he “woke up in hospital” after the alleged attack.  The outpatient treatment slip says he was brought by a police constable in a “stable and well oriented” condition.  It says his wound on the scalp was stitched and dressed, but does not suggest that he was first admitted into and then discharged from the hospital as he claimed to the Tribunal [CB 265 [77]].

8. However, as the Tribunal did not say this or make this finding, such a submission is not particularly helpful.

9. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, the Tribunal member failed to have regard to what may have been a significant piece of evidence when considering whether or not to accept or reject the applicant’s version of events. In this case, there were two potentially significant pieces of evidence. The first, was the hospital slip attesting to the applicant husband’s attendance at the hospital. Secondly, the affidavit of his brother which was said to be self-serving when on its face it appears to be evidence of the brother with respect to the applicant’s circumstances.

10. The brother’s affidavit was rejected for irrational reasons (that it was ‘self-serving’), when it was not self-serving. As a result the Tribunal did not consider this evidence that may have supported the claim.  The incorrect classification of this evidence as self-serving was wrong in law and led to it being excluded from consideration by the Tribunal. 

11. The rejection of the hospital document without considering it separately, but simply on the basis of DFAT statements that document fraud is endemic is also logically flawed: it cannot possibly be that on the DFAT advice alone, every document from Pakistan that is not provided by NADRA should be disregarded.  Consideration must be given to specific significant documents in the context of the facts of the case and the DFAT advice and findings made.  An important purpose of courts and Tribunals is to consider the unique facts and circumstances of individual cases to identify the exceptions to broad assumptions to avoid general concepts causing injustice in individual cases.

12. Having reflected upon the reasons as a whole, I am satisfied that there is a logical error in the reasoning process that makes it legally unreasonable. 

13. I therefore find that this ground has been established.

Grounds Two and Three

1. The second ground in this case was pursued on the basis that the submissions of the applicant’s advisor raised a number of specific integers with respect to his claim for protection (nine separate integers bundled into three paragraphs with sub-paragraphs: see [6] above), one of which was that of being a Sunni Muslim holding anti-Taliban views: see CB p.211 at [3(b)].  At CB p.230, this is expanded upon where the advisor submits:

   We contend therefore that further and in the alternative, if the Tribunal was to not accept that the Applicant is subject to harm because of his imputed political opinion from his relation to his activities, then the Applicant remains a refugee for his well-founded fears based on the real chance of persecution for his political, social and religious belief and to which he would be subject to serious harm if he was to return home to Pakistan.

2. At CB p.232, the advisor’s submissions go on to refer to the applicant’s:

   …participation as a devout Graduate Religious Sunni man, who is perceived to hold Anti-Taliban views…

3. The Tribunal clearly acknowledges these various claims, recounting them at [16] of the decision in the form that they appear at CB p.211 in the applicant’s submissions.  At [73], the Tribunal accepts that the applicant holds anti-Taliban views, but does not accept that he has conducted himself in such a way as to be targeted by the Taliban, and provides logical reasons for that, saying:

   73. The Tribunal accepts that the applicant holds anti-Taliban views but does not accept that the applicant has espoused these views in a manner that would have caused him to be targeted by the Taliban. The applicant husband indicated that when he returned to Pakistan in January 2012, after being in Australia for nearly four years, he felt emboldened to speak out publicly against the Taliban. The Departmental decision record indicates that the applicant told the delegate at interview that he had a conversation outside the mosque with fellow worshippers on one occasion and on another occasion he had a conversation with friends while playing cricket, where he was warned by one of his friends that one of the group is now Taliban. At the hearing the applicant husband told the Tribunal that he was with two friends outside the mosque and talking about the Taliban and it turned out that one of these friends was Taliban and that is how the Taliban found out about his anti-Taliban views. He said that this person punched him in a light joking way and warned him not to speak against the Taliban as they are good people. Based on the evidence that the applicant husband gave to the department and to the Tribunal, which does not indicate that the applicant has spoken out strongly in public against the Taliban, and significantly, the fact that the Taliban has not acted on many claimed threats to kill the applicant, his father, or family members, the Tribunal does not accept that the applicant has a profile as a critic of the Taliban.

4. The Tribunal goes on to analyse in some detail the specific circumstances of the applicant, before concluding that he is not at risk because of an actual or imputed political profile of being anti-Taliban: see [87].

5. Thereafter, the Tribunal goes on to consider whether there is a generalised risk to the applicant from the Taliban, or other militant violence in their home area.  At this point the Tribunal is no longer considering the applicant’s specific circumstances (having considered it at some length above and concluded that it was not satisfied that he was at real risk), but goes on to consider whether or not the generalised risk within the country would be such as to place him at real risk. It is in this respect that ground three alleges an error.

6. The Tribunal notes a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from 2014 to 2015, and the DFAT information that the Pakistan Taliban are divided and disrupted and no longer have access to safe havens in Khyber and North Waziristan. The Tribunal then goes on to consider in more detail the DFAT information in its discussion at [89], looking specifically at the area in which the applicant lives, before concluding in [90] that based upon the country information there is not a real risk that the applicant would suffer significant harm as a consequence of generalised or militant related violence: see [90].

7. Whilst it is argued that the Tribunal have approached the case on a purely statistical basis, it appears to me that this is an inappropriate categorisation of the reasoning process of the Tribunal member.  The member clearly considered the applicant’s personal circumstances at great length to determine whether or not he, in his particular circumstances, was at risk.  Having concluded that he was not at risk, either as a member of a particular social group of interest to the Taliban, nor as a result of any actual or imputed political profile, the Tribunal nonetheless went on to consider whether risks generally to people in particular areas of Pakistan are so great that he had established that he faced a real risk of serious harm.

8. Counsel for the first respondent develops his response further by noting the various places in which the applicant’s individual circumstances are considered in particular detail, such as [73] as quoted above, at [70] where the Tribunal rejects the claim that merely attending a Madrassa places him at risk, at [68] where the Tribunal accepted that the applicant did attend a Madrassa, but notes that there are more than 20,000 in Pakistan, at [89] where some of the statistical information related to military targets (noting that in this case the applicant had no association with the military); and at [90] where generalised violence was considered.

9. Counsel for the applicant was not able to point to any material before the Tribunal member that addressed Sunni Muslims more specifically than the risk generally to the population, to which the Tribunal member could have referred.  In the circumstances of this case, I am not persuaded that in this regard the Tribunal member has impermissibly looked to statistical information, rather than the particular circumstances of the applicant.

10. Instead, the Tribunal member has determined the case on the particular circumstances, and then gone on to consider whether or not the generalised risks are such as to enable the applicant to succeed.  This process of reasoning appears to me to be permissible, and indeed essential in some cases where the generalised risk may be of such significance that regardless of the applicant’s personal circumstances, the generalised statistical risk is so high that they should be entitled to a protection visa.

11. These grounds are not made out.

Conclusion

1. For these reasons, the application ought to be allowed.

2. The parties agreed that costs ought to follow the event, fixed at $7,328.00

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  31 October 2018