AZW16 v Minister for Immigration
[2018] FCCA 2229
•16 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZW16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2229 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether there was before the Tribunal a distinct claim based on actual political opinion in addition to a claim based on imputed political opinion – whether if there were such claim the applicant by his or his representative’s conduct rendered it reasonable for the Tribunal to assume there was not before it a claim based on actual political opinion – whether the Tribunal misapplied the “real chance test” when assessing whether the applicant had a well-founded fear of being persecuted – whether by not having disclosed to the applicant a s.438 certificate not alleged to have been invalidly issued the Tribunal made a jurisdictional error – whether the Tribunal did not accept or doubted a claim made by the applicant and in those circumstances failed to give to the applicant notice this claim may not be accepted by the Tribunal with the consequence that the Tribunal failed to accord the applicant procedural fairness – jurisdictional error found because there was before the Tribunal a claim based on actual political opinion which the Tribunal did not consider. |
| Legislation: Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 414, 418, 424, 425, 438 |
| Applicant: | AZW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1057 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 8 June 2017 |
| Date of Last Submission: | 8 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The decision of the second respondent made on 4 April 2016 affirming the decision of the delegate of the first respondent made on 31 March 2014 not to grant the applicant a Protection (Class XA) visa is quashed.
The second respondent determine according to law the applicant’s application for review of the decision of the delegate of the first respondent made on 31 March 2014 not to grant the applicant a Protection (Class XA) visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1057 of 2016
| AZW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Pakistan, seeks judicial review of a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant relies on the four grounds of application contained in the amended application. Before I consider those grounds, it will be necessary to set out the claims for protection the applicant made before the Tribunal, and the Tribunal’s reasons for not accepting those claims.
Claims for Protection
The applicant first stated his claims for protection during an irregular maritime entry interview on 21 September 2012.[1] In broad terms the applicant claimed he fled Pakistan because the whole of Pakistan is not safe because of the Taliban, and the government is unable to provide security.[2]
[1] CB1-17
[2] CB11
The applicant stated his claims more fully in a statement dated 21 November 2012 (Statement) that formed part of his application for a Protection visa.[3] The applicant made the following claims in the Statement:
[3] CB50-53
a)The applicant was born in a village in Parachinar, Kuram Agency. He is a citizen of Pakistan, an ethnic Pashtun, a Shia Muslim, and a member of the Turi tribe.
b)In early 2007 the Taliban arrived at the applicant’s village. They threatened the Turi tribal elders that unless the Taliban were granted clear passage into Afghanistan they would attack the village and kill Shias. The Turi tribal elders refused.
c)The Taliban commenced attacking the village and the area of Parachinar. They entered the village, sought out Shias, and shot them; they fired heavy artillery destroying villages, buildings, and farming land; they targeted Shia men, woman, and children; and they sought out the Turi elders who had refused the Taliban passage. The village succumbed to the Taliban’s demands.
d)In early April 2007, when the applicant went to Parachinar to deposit money in a bank, he found himself in the midst of an attack by the Taliban. The applicant, in fear of his life, hid in the bank overnight while the fighting continued, and left when he thought it safe to do so.
e)From that point Shias were not permitted to practice their religious beliefs. The applicant and others were too afraid to attend the mosque because they feared they would be targeted and killed by the Taliban. The applicant and his family feared the Taliban because the applicant and his family were aware of the Taliban regime and their treatment of Shias in other areas of Pakistan. Although the applicant and his family were deeply religious “we changed our religious practices as we feared we would be killed”.
f)In November 2007 the Taliban began to threaten the schools in the applicant’s local area with attack. The students were informed that teachers had received threatening letters from the Taliban that if they continued to allow girls to go to school they would be targeted. The schools were also targeted because they were Shia schools; and, depending on the state of conflict, schools would open and close sporadically.
g)On 16 February 2008, four days before the National Assembly elections, the applicant attended a political rally in support of Dr Sayed Riaz Hussain Shah and his Pakistani Peoples Party Parliamentarians (PPP). A bomb exploded at the rally rendering the applicant unconscious. When he regained consciousness the applicant witnessed the aftermath. 80 people were killed and more than 120 were injured.
h)The Parachinar area was subjected to extreme warfare; the main route to Peshawar had fallen under the control of the Taliban, thus preventing people from travelling to Parachinar to further their education or for employment. Life became difficult.
i)On 17 February 2012 the applicant, his father, and nephew were present at a bazaar in Parachinar when a bomb exploded. 40 people were killed and about 30 were injured. The Taliban claimed responsibility for the attack.
j)The applicant lived in constant fear. If he is forced to return to Pakistan he fears he will be persecuted or killed by the Taliban because he is a Shia Muslim, a Pashtun, and a member of the Turi tribe. He also fears he will be persecuted because of “my political opinion: I do not abide by the Taliban/s ideology of Sharia Law and I am a supporter of the PPP”;[4] and also because of his membership of a particular social group, namely, a “failed Shia Pashtun asylum seeker who fled my village without consent from the Taliban”.[5]
[4] CB52, [19]
[5] CB53, [20]
Before the Tribunal the applicant made additional claims. He said that sometime in 2013 the Taliban had sent a “threat letter” to the applicant’s family home “to kidnap his parents children or that they would be targeted in a suicide bombing”.[6] In support of that claim the applicant submitted to the Tribunal an article about the death of two people following a roadside bomb, and claimed the bomb was intended for his family members.[7]
[6] CB311, [15]
[7] CB311, [15]
Also before the Tribunal the applicant gave evidence about his involvement with the PPP. He claimed he joined the PPP in January 2008; that he joined because the PPP are good for Shias, they have a good image, and they were pro-education and pro-development in his area; he helped organise people to attend PPP rallies and programs in the lead up to the national elections; the applicant continued to organise meetings where they would talk about how to organise people and programs for upcoming elections; and the applicant continued to be a member of the PPP and said he would resume his activities in support of the PPP on his return to Pakistan.[8]
[8] CB318, [40], [41]
Tribunal’s reasons
The Tribunal was satisfied the applicant is a national of Pakistan,[9] that he comes from a village in Parachinar, Kurram Agency;[10] that the applicant is a Pashtun and follows the Shia religion,[11] and would be identified as such throughout Pakistan;[12] and that he was a member of the Bangash tribe.[13] The Tribunal also accepted the applicant witnessed an attack by the Taliban in a street in Parachinar in 2007;[14] and that the applicant, his father and nephew were close to a bomb that exploded in Parachinar on 17 February 2012.[15] The Tribunal, however, did not accept other aspects of the applicant’s claims.
[9] CB309, [7]
[10] CB309, [8]
[11] CB309, [9]
[12] CB310, [13]
[13] CB312, [18]. At CB309-310, [9] the applicant’s representative informed the Tribunal that the claim made in the Statement that the applicant member of the Turi tribe was made “as a result of confusion with the applicant’s former representative because the majority of people in [the applicant’s] home area are Turi and by referring to Turi he was referring to the fact that he is Shia rather than Sunni (as Bangash tribe members are both Shia and Sunni)”.
[14] CB311, [16]
[15] CB311, [14]
First, the Tribunal did not accept the claim the applicant made before the Tribunal that his family had received a threatening letter from the Taliban, or that, rather than intending to kill the two people referred to in the report the applicant had submitted to the Tribunal, the Taliban intended to kill the applicant’s family.[16]
[16] CB311, [15]
Second, although the Tribunal accepted the applicant may have voted for the PPP, the Tribunal did not accept the applicant actively campaigned for Dr Riaz or anyone else in the lead up to the National Assembly elections on 18 February 2008; or that the applicant helped organise people attend the PPP rallies and programs in the lead up to the election; or that the applicant continued to organise meetings after the election; or that the applicant attended the PPP rally on 16 February 2008.[17] The Tribunal relied on the following matters:
a)Although in the Statement the applicant said he was a supporter of Dr Riaz and the PPP, he did not there say, as he did before the Tribunal, that he was a member of the PPP, or that he engaged in the activities as a member of the PPP.[18]
b)While the applicant demonstrated some knowledge of the PPP in his oral evidence to the Tribunal, it was “fairly general”.[19]
c)Although the applicant claimed he joined the PPP before the National Assembly elections and he supported the PPP election campaign in Kurram Agency, he was unable to remember the date of the election in 2008.[20]
d)The Tribunal found the applicant’s evidence about his involvement with the PPP after the election to be “vague and lacking in details”.[21]
e)The Tribunal found there were inconsistencies between what the applicant stated to the delegate, and what the applicant said to the Tribunal. The Tribunal gave one example, namely that before the delegate the applicant said that although he supported the PPP from the age of 12 to 14 he was never a member of the party, yet to the Tribunal the applicant said he was a member of the PPP from early 2008.[22]
[17] CB320, [49]
[18] CB319, [48]
[19] CB319, [48]
[20] CB320, [48]
[21] CB320, [48]
[22] CB320, [48]
Third, although the Tribunal accepted a bomb blast occurred on 16 February 2008, it did not accept the applicant was present when the bomb exploded at the market. The Tribunal relied on the following matters: [23]
a)The Tribunal did not accept the applicant was a member of the PPP.
b)There was an inconsistency between what the applicant said before the delegate and the Tribunal about the time at which the blast occurred.
c)The Tribunal found implausible the applicant’s claim that the blast rendered him unconscious for 30 minutes yet he sustained no injuries from the blast.
[23] CB320, [50]
Fourth, the Tribunal did not accept that in April 2007 the Taliban arrived at the applicant’s village and threatened Turi tribal elders to attack and kill Shias if the elders did not allow them passage into Afghanistan, and that the Taliban subsequently attacked the village.[24] The basis of the Tribunal’s non-acceptance is that, when the Tribunal asked whether he has any fears about returning to Pakistan on the basis of his Bangash tribe membership or association with the Turis, the applicant replied that “they” care more about religion, and the applicant did not state that the Taliban had attacked his village or the elders from his village.[25]
[24] CB324, [67]
[25] CB243, [67]
The Tribunal assessed the applicant’s claims based on these findings. The Tribunal first considered the applicant’s claims under the criterion provided for by s.36(2)(a) of the Migration Act 1958 (Cth) (Act), as it then applied; [26] and here the Tribunal assessed the applicant’s claims in relation to his being a Shia Muslim, his support for the PPP, and his being a failed Shia asylum seeker and returnee from the West.
[26] This part of the Act was amended by Part 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The amendments took effect on 18 April 2015. Item 28 of Schedule 5 provides that Part 2 applies in relation to an application for a protection visa that is made on or after the day “this item commences”. Under s.2 of the Act, Item 28 came into effect on the day after assent. The date of assent was 15 December 2014. The application for protection in the case before me was made before 15 December 2014
Claim based on applicant’s being a Shia Muslim
The Tribunal found as follows:
a)The applicant was not specifically targeted by the attack that occurred in April 2007 when the applicant was at the bank, and the applicant does not face a real chance of serious harm from the Taliban or from others on return to Kurram Agency in relation to that incident.[27]
b)The attack the applicant witnessed on 17 February 2012 was part of generalised violence that affected many other Shia Muslims in those areas at the time, and was not an attack targeted at the applicant, or his father, or his nephew.[28]
c)Although the Tribunal accepted there has been sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counter-insurgency campaigns, the Tribunal did not accept the applicant or any member of his family have ever been seriously injured in Kurram Agency as a result of such violence, or specifically targeted by the Taliban or by any other extremists group.[29]
[27] CB311, [16]
[28] CB311, [14]
[29] CB311-312, [17]
After referring to country information that showed that Shia Muslims in general risk being targeted for terrorist attacks by Sunni extremist groups, including the Taliban, and that Shia Muslims from Kurram Agency are widely recognised as having opposed the Taliban; and reports of particular incidents in 2012 and 2013, the Tribunal noted that country information “indicates that the situation has improved over in the” Federally Administered Tribal Areas (FATA), including Kurram Agency.[30] The Tribunal then identified the following country information it found indicates that the situation had improved:
a)A FATA Research Centre Report for 2014 stating that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014.[31]
b)A UNHCR report on a protection cluster mission to Kurram Agency in April 2014 concluding it was evident that general peace had been restored in Upper and Lower Kurram.[32]
c)A FATA Research Centre Report for 2015 stating that 2015 marked a significant decline in terrorism-related incidents in the tribal areas of FATA. The report also noted, however, that militancy and counter militancy incidents were recorded from all the seven agencies of FATA, that 2015 remained turbulent with armed conflict between non state militant actors and law enforcement and security agents remaining at its peak, but also noting that militant violence declined by 40% compared to 2014.[33]
d)The South Asia Terrorism Portal (SATP) 2015 “FATA Assessment” report states that civilian and security forces fatalities in FATA had recorded a seven year decline, whereas overall fatalities had been higher due to the increase in terrorist fatalities under ongoing military operations.[34] SATP also reported that other parameters of violence such as suicide attacks, explosions, and the number of sectarian attacks remained significantly high throughout 2014.[35]
e)The “UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation” reported that an Austrian fact finding mission undertaken in July 2015 found “an overall improved security situation since its previous mission in 2013”.[36]
f)The Pakistani Institute for Peace indicated a 30% decrease in the number of terrorist attacks carried out in 2014 compared with 2013.[37]
g)The most recent DFAT report on Shias in Pakistan dated 15 January 2016 “appears to indicate that the security situation in Kurram Agency has improved and there has been some stabilisation in the region”.[38]
[30] CB312, [21]
[31] CB312, [22]
[32] CB312-313, [22]
[33] CB313, [23]
[34] CB313-314, [24]
[35] CB314, [24]
[36] CB314, [25]
[37] CB314, [25]
[38] CB314, [26]
After referring to the submissions the applicant and the applicant’s representative made about country information that the Tribunal discussed with the applicant at the hearing, the Tribunal made the following findings:
a)The Tribunal accepted there continues to be ongoing sectarian violence in FATA, including in Kurram Agency; and this included an IED attack in a clothes market in Parachinar on 13 December 2015 that killed at least 25 people and injured 70. The Tribunal nonetheless considered that “the weight of evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/2014”.[39]
b)The Tribunal considered that it “would be mere speculation to find on the evidence before it that” the terrorist attack of 13 December 2015 “means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe such as the applicant living in that area will be killed or injured in such terrorist attack in the reasonably foreseeable future”.[40] The Tribunal considered that “there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar”.[41]
c)Although the Tribunal accepted “there is some level of risk to the applicant in the context of generalised violence”, it found on the basis of the evidence before it that “the risk is remote”, and the Tribunal did not accept “there is a real chance that he would be targeted for harm based on his Shia religion, his Bangash ethnicity, an imputed political opinion, his origins from Parachinar, membership of particular social groups, namely ‘Shia from Parachinar’ and ‘failed Shia asylum seekers from a western country . . . or any other Convention reason”.[42]
d)Although the Tribunal also accepted there continues to be clashes between militants and security forces and occasional incidents in which civilians have been killed or injured, the Tribunal found that “overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards”.[43]
e)The Tribunal was satisfied the applicant would be able to practice his Shia religion on return to Kurram Agency, as he had in the past.[44]
[39] CB316, [33]
[40] CB317, [33]
[41] CB317, [33]
[42] CB317, [34]
[43] CB317, [35]
[44] CB317, [36]
Other claims
The Tribunal also did not accept the applicant faced a real chance of serious harm from the Taliban or from the government or from anyone else because on his return he would be considered a failed Shia asylum seeker from a western country, or a failed Shia Pashtun asylum seeker who had fled from his village without the consent of the Taliban.[45] Nor did the Tribunal accept the applicant faced a real chance of serious harm from Islamic State.[46] Nor did the Tribunal accept the applicant had a well-founded fear of persecution based on the Taliban attacking schools.[47]
[45] CB322, [50]
[46] CB323-324, [65]
[47] CB324, [66]
Conclusion on claims under s.36(2)(a)
Given these findings the Tribunal was not satisfied the applicant is a person to whom Australia owes protection obligations under the Refugees Convention, with the consequence that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act.[48]
[48] CB325, [69]
Complementary protection
The Tribunal was also not satisfied the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. In so concluding the Tribunal relied on the findings it had made when considering the applicant’s claims under s.36(2)(a) of the Act.[49]
[49] CB325, [70]-[74]
Ground 1 – failure to consider claim
Ground 1 of the grounds of application is as follows:
The Tribunal failed to consider one of the applicant’s claims.
Particulars
a.The applicant claimed to fear persecution in Pakistan from the Taliban because of his actual political opinion, being that he does not abide by the Taliban’s ideology: Statement dated 21 November 2012 [19].
b.The Tribunal failed to consider this claim.
Counsel for the applicant submitted the applicant made a distinct claim that he had an actual political opinion, namely, that he did not abide by the Taliban’s ideology, but the Tribunal only considered the applicant’s claims based on his being imputed with a political opinion. In those circumstances counsel submits the Tribunal made a jurisdictional error because “to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant”, and that to “make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.[50]
[50] T22.5; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] (Allsop J, as his Honour then was)
Counsel for the Minister does not submit that it was not open to characterise the applicant as having made a claim based on his actual political opinion. Counsel submitted, however, that there was nothing to suggest to the Tribunal that the applicant’s actual political opinion was of any significance; and that, at least in the circumstances of this case, the distinction between a claim based on actual political opinion and one based on imputed political opinion was or approached the theoretical. By that I understand counsel for the Minister to submit that, in the circumstances of this case, the consideration of a claim based on the applicant’s actual political opinion would have required no additional or different consideration from that which the Tribunal in fact undertook when assessing the applicant’s claims to the extent they were based on his being imputed with a political opinion.
Counsel for the Minister also submitted it was “not enough to say that just because something has been argued before the Tribunal, and then overtaken in the way the matter is subsequently argued before the Tribunal, that it nevertheless always remained something the Tribunal must separately address”.[51] Counsel for the Minister particularly relied on the detailed written submissions the applicant’s representative provided to the Tribunal.[52] In the section of the submissions headed “Issues” the representative identified the “issues arising in this review”, one of which is described as “[d]oes the Applicant have a well-founded fear of persecution on the basis of his imputed political opinion?”, but nothing was said about any issue arising out of the applicant holding a political opinion.[53] In the section headed “B. Does the Applicant have a well-founded fear of persecution on the basis of his imputed political opinion?” there is set out evidence and submissions in support of the claim based on the applicant’s being imputed with a political opinion; but, again, nothing is said about the applicant’s actual political opinion.
[51] T42.30
[52] CB216-249
[53] CB220
On these competing submissions, it may be said that two questions arise. The first is whether there was before the Tribunal a claim based on the applicant’s actual political opinion. The second is, assuming such claim was at some stage made by the applicant, whether the applicant and his representative conducted the case before the Tribunal in a manner that reasonably indicated to the Tribunal that the applicant did not in fact intend to rely on such claim.
Distinct claim based on actual political opinion?
The relevant principles for determining what claims are before a Tribunal have been considered in a number of cases. Often referred to is the judgment of the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[54] where the Full Federal Court said:
a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[55]
b)The Tribunal must “deal with the case raised by the material and evidence before it”, and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.[56]
c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[57] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[58]
[54] [2004] FCAFC 263
[55] [2004] FCAFC 263, at [60]
[56] [2004] FCAFC 263, at [58]-[59]
[57] [2004] FCAFC 263, at [60]
[58] [2004] FCAFC 263, at [61]
Also useful is the judgment of Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[59] where his Honour said:[60]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[59] [2004] FCA 1695
[60] [2004] FCA 1695, at [15]
The applicant expressly claimed he feared harm from the Taliban because of actual political opinion, namely, his not abiding the Taliban’s ideology. The applicant made the claim in paragraph 19 of the Statement; and the substance of the claim is recorded in the delegate’s decision record where the delegate says the applicant “fears persecution because of his political opinion as he supports the PPPP and he would not abide by the Taliban’s theology or Sharia law”.[61] The applicant’s claim based on his actual political opinion, therefore, was a claim distinct from the claim based on imputed political opinion; and, in my opinion, the distinction was more than theoretical. As counsel for the applicant submitted during oral address, a claim based on a person’s actual political opinion might well invite inquiries that are additional to those that a claim based on imputed political opinion may invite. For example a claim based on a person’s actual political opinion may invite inquiry about whether there would be any circumstances in which the person holding the opinion would express that opinion, or whether the person is likely to alter his or her behaviour so as not to disclose that opinion to avoid the risk of harm to which the person holding such opinion would be subject if he or she were to express the opinion.
[61] CB152. I say “the substance of the claim” because the delegate described the applicant’s claim as the fear of persecution because the applicant would not abide by the Taliban’s “theology”.
Claim not before Tribunal because of manner in which applicant conducted case before Tribunal?
This, then, leads to the question whether, by neither the applicant nor his representative saying anything to the Tribunal to the effect that the applicant also had a claim based on his actual political opinion, the Tribunal could proceed on the assumption that the applicant made no claim based on his actual political opinion. The following passage from the judgment of Bennett J in SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs is relevant to answering this question (emphasis added):[62]
A claim made to the Department and referred to in the Delegate’s decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate’s decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim.
[62] [2006] FCA 1798 at [34]
In this passage her Honour accepts that in certain circumstances a Tribunal may be entitled to take the view that an applicant does not intend to make a claim. As I have noted elsewhere,[63] however, her Honour does not in this passage say the Tribunal is entitled to adopt that view only because the claim is not “advanced at all”. Her Honour also referred to the claim not arising “from the material before the Tribunal”. In other words, her Honour may be taken to have held that if a claim is not being advanced “at all”, and if the claim does not arise from the material that is before the Tribunal, the Tribunal may assume the claim is not being pursued. Thus an applicant’s not making any submission to the Tribunal in support of a claim that otherwise arises from the material before the Tribunal cannot by itself justify the Tribunal adopting the view that the applicant does not intend to make such claim.
[63] SZVWF v Minister for Immigration & Anor [2016] FCCA 2532 at [25]
As I have also noted elsewhere,[64] Bennett J’s conclusion reflects the scheme under which the Tribunal exercises its jurisdiction to review decisions. Of particular relevance are s.418, s.424, and s.425 of the Act. Subsection 418(2) of the Act requires the Secretary of the Department of Home Affairs (Department). to provide to the Registrar of the Tribunal a “statement about the decision under review” that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and which gives reasons for the decision. Subsection 418(3) of the Act requires the Secretary to provide to the Registrar of the Tribunal documents in the possession or control of the Secretary that the Secretary considers to be relevant to the review of the decision. Section 424(1) of the Act empowers the Tribunal to “get any information that it considers relevant”. And, finally, there is s.425(1) of the Act which, subject to certain exceptions, requires the Tribunal to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. These provisions indicate, therefore, that when reviewing a decision under s.414 of the Act the Tribunal must consider information that becomes available to it under these provisions.
[64] SZVWF v Minister for Immigration & Anor [2016] FCCA 2532 at [26]
The Statement containing the applicant’s claim based on the applicant’s actual political opinion was information before the Tribunal. So too was the delegate’s decision record which identified as one of the applicant’s claims his fearing “persecution for his political opinion as he supports the PPPP and he would not abide by the Taliban’s theology or Sharia law”.[65] When the Tribunal, therefore, was considering the claims before it, it was obliged to consider all of the claims that arose tolerably clearly from the material before it. That included the claim based on the applicant’s actual political opinion that was contained in the Statement, the substance of which was repeated in the delegate’s decision record. The Tribunal was not relieved of this obligation only because the applicant and his representative may have said nothing to the Tribunal about the applicant’s actual political opinions.
[65] CB152
The Tribunal made a jurisdictional error by not considering the applicant’s claim based on actual political opinion. The applicant, therefore, succeeds on ground 1.
Ground 2 – failure to apply “real chance” test
Ground 2 is as follows:
The Tribunal asked itself the wrong question.
Particulars
a.The Tribunal accepted that the applicant is a Shia Muslim who comes from Parachinar, in Kurram Agency, Pakistan, and assessed his claims on the basis that he would return there.
b.The Tribunal relied on Country information to hold that, while there had been sectarian violence in Kurram Agency, a level of security has been restored: [29].
c.The Tribunal accepted at [33] that on 13 December 2015 a terrorist attack in Parachinar killed 25 people and wounded 70 (Recent Attack).
d.The Tribunal held that it was “premature” to conclude that the Recent Attack ‘marks a definite change in the security situation”, and accordingly it would be “speculation” to find that there had been a deterioration in the security situation: [33].
e.The ‘real risk’ test obliged the Tribunal to assess the risk whether the recent Attack affected the risk of harm – whether definite or not – to the applicant. The tribunal failed to do this. The Tribunal further mistook the content of its obligation to assess the prospect of a real risk in the future because it regarded that task as speculation.
Before I consider the parties’ submissions it would be useful if I set out the relevant legal principles the ground claims the Tribunal failed to follow (Correct Principles). These principles concern the degree of risk of persecution a person must face before a decision-maker can be satisfied that the person has a “well-founded fear of being persecuted” as that expression is used in the definition of “refugee” given by Art.1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention). The Correct Principles are stated in the judgments of the High Court in two cases that must be read together. The first is Chan v Minister for Immigration and Ethnic Affairs where the degree of risk of persecution is expressed in terms of a “real chance”.[66] Mason CJ said:[67]
But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia . . . . If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[66] (1989) 169 CLR 379
[67] (1989) 169 CLR 379 at page 389. See also Toohey J at page 407 where his Honour said that the real chance test “gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”. See also McHugh J at page 429 where his Honour said: “As the U.S. Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.”
The second case is Minister for Immigration and Ethnic Affairs v Guo where the plurality said:[68]
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite 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 shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance 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. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.
[68] (1997) 191 CLR 559 at page 572-573
There are other principles that are relevant to assessing whether a person has a well-founded fear of being persecuted. One is the future time during which the person must have a well-founded fear that serious harm will befall that person; and here the question of whether or not a person had a well-founded fear of persecution has to be assessed on the assumption that the person will return to his or her country “at this time or within a reasonably foreseeable future”.[69]
[69] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 279
Another principle, or set of principles, concerns the method by which a decision-maker assesses the risk of future harm. In Minister for Immigration and Border Protection v MZYTS the Full Federal Court said that the assessment of future harm “involves a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past”.[70] What is involved in such assessment was described in greater detail by Gummow and Hayne JJ in S395 v Minister for Immigration and Multicultural Affairs:[71]
The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant. It requires identification of the relevant Convention reasons that the applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant's country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.
[70] [2013] FCAFC 114 at [33]
[71] (2013) 216 CLR 473 at [73]-[75]
Ground 2 claims the Tribunal failed to apply the Correct Principles in two ways: the Tribunal failed to assess whether the Recent Attack affected the risk of harm to the applicant; and the Tribunal “mistook the content of its obligation to assess the prospect of a real risk in the future because it regarded that task as speculation”. By this I understand the ground to claim that the Tribunal equated the real chance test as speculation and therefore was not a risk that was relevant to determining whether the applicant had a well-founded fear of being persecuted.
In his written submissions counsel for the applicant relies on additional matters. Counsel there refers to the Tribunal’s finding that the “weight of evidence indicates that there has been a sustained improvement in the security situation”, and it would be “premature to conclude” that the recent attack marks a “definite change in the security situation”.[72] Counsel submits this finding manifests a misapplication of the Correct Principles in three ways. First, the Tribunal proceeded on the view that there was required to be a “definite change” in the security situation, and this is “the antithesis of risk”.[73] Second, by having regard to the “weight of evidence”, the Tribunal wrongly attempted to weigh risk.[74] Here counsel relied on the observations of Toohey J in Chan that the “real chance test” “does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial”.[75] Third, the Tribunal confused an “improvement” in security with actual security.[76]
[72] Applicant’s Written Submissions, [14], quoting from CB317, [33]
[73] Applicant’s Written Submissions, [15(a)]
[74] Applicant’s Written Submissions, [15(b)]
[75] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at page 389
[76] Applicant’s Written Submissions, [15(c)]
In oral address, counsel made submissions that reflected his written submissions. Counsel submitted that the Tribunal did not consider whether there was a real risk, but proceeded on whether there was an improvement in the security situation. Counsel further submitted the Tribunal confused improvement in security with actual security.
Counsel for the Minister submitted that, contrary to the applicant’s submissions, the “real chance test” does involve the weighing of the prospect of persecution; that the Tribunal in terms applied the “real chance test” as stated in Chan, and that the applicant’s submissions rest on an unfair reading of what the Tribunal did.
In assessing this ground it is necessary to identify the finding in connection with which the applicant claims the Tribunal failed to apply or misapplied the Correct Principles, and the Tribunal’s actual reasoning on which it relied in making that finding. The finding related to the risk of the applicant being harmed from “such terrorist attacks”, those attacks being sectarian attacks where the basis of attack is a person’s religion; and the finding was that there is “only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns home in Parachinar”. The expression “remote chance” is that which is found in Chan; and given that in the paragraph in which it made this finding the Tribunal referred to Chan, the inferences are available, and I find, that, when it assessed this particular risk of harm, the Tribunal was aware of the “real chance test” as stated in Chan, the Tribunal considered that that was the test it was required to apply, and the Tribunal intended to apply that test.
Next is the reasoning on which the Tribunal relied. First, the Tribunal referred to a number of different items of country information that referred to the security position in Kurram Agency. It is true the country information detailed changes in the security situation; but that is not surprising given that the country information consisted of yearly reports; and that the Tribunal referred to such reports by itself does not support the conclusion that the Tribunal concerned itself only with changes in security rather than with security itself. If anything, given that the task the Tribunal considered it had to undertake, consistent with Chan and Wu Shan Liang, was to assess whether the applicant faced a real chance of persecution in the reasonably foreseeable future, it was reasonably open to the Tribunal to consider relevant information that revealed the past trends in the security situation in the Kurram Agency.
Second, the Tribunal specifically considered the significance of a particular terrorist attack. The question the Tribunal considered that attack gave rise to was whether it could reasonably be taken to have an impact on the security situation as revealed in the country information the Tribunal already had identified. It is true the Tribunal concluded that the single incident did not mark any “definite change” in the security situation. That, however, indicates nothing more than the Tribunal concluding that the single event did not in its opinion alter the security situation which it found was revealed by the other country information to which it referred. It was reasonably open to the Tribunal to consider particular items of information with a view to determining whether such item of information altered the Tribunal’s assessment of risk.
The Tribunal did not misunderstand or misapply the Correct Principles in concluding that there is only a remote chance that the applicant will be killed or injured in terrorist attacks if he returns home in Parachinar. Ground 2, therefore, fails.
Ground 3 – s.438 certificate
Ground 3 is as follows:
The Tribunal breached the principles of procedural fairness and s 438.
Particulars
a.The Tribunal did not draw the certificate at CB127 to the attention of the applicant
As the particulars indicate, this ground is directed to a certificate that was issued purportedly under s.438(1)(a) of the Act (s.438 certificate). The 438 certificate is as follows:
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to information in folios 121 to 131 of file number . . . . The disclosure of this information would be contrary to the public interest because:
(a)folios 121-122 contains internal administrative documents that would reveal the Department’s forensic checking process.
(b)Folios 123-131 contains a forensic document examiner’s report meant for internal use only
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438(3) and (4) of the Migration Act 1958
It is common ground that the Tribunal did not disclose the s.438 certificate to the applicant. In those circumstances, relying on the judgment of the Full Federal Court in Minister for Immigration and Border Protection v Singh,[77] and on the judgment of Beach J in MZAFZ v Minister for Immigration and Border Protection,[78] the applicant submits he was denied procedural fairness.
[77] [2016] FCAFC 183, at [52]
[78] [2016] FCA 1081
The Minister does not submit the Tribunal was not required to disclose the s.438 certificate to the applicant. The Minister instead submits that the documents covered by the s.438 certificate were ultimately of no relevance and, in those circumstances, the Tribunal made no jurisdictional error by not having disclosed the s.438 certificate to the applicant. The Minister particularly relies on the following passage from the judgment of Barker J in AVO15 v Minister for Immigration and Border Protection;[79]
To the extent that there may have been some technical breach of the disclosure obligations arising under the Act, I do not consider that the applicant lost any opportunity to advance his case by reason thereof. No detriment is shown. No practical injustice is, on any view, identified. See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326;[2015] HCA 40, especially at [57] (Gageler and Gordon JJ).
[79] [2017] FCA 566 at [91]
The Minister sought to make good his submission by reading an affidavit that purports to describe the documents covered by the s.438 certificate, and which annexes documents from which is redacted portions of the documents over which the Minister has claimed public interest immunity (Redacted Portions). The applicant, however, submits that in the absence of the Minister putting before the Court all of the contents of the documents, including the Redacted Portions, whether or not the Redacted Portions attract public interest immunity, it is not open to find that the Tribunal’s non-disclosure to the applicant of the s.438 certificate resulted in no practical injustice in the sense that the applicant lost no opportunity to advance his case, or to put any information or argument to the Tribunal, or otherwise suffered any detriment.[80]
[80] Minister for Immigration and Border Protection v WZARH [2015] HCA 40, at [57] (Gageler and Gordon JJ)
I do not accept the applicant’s submission that without the Minister disclosing the contents of all of the documents the subject of the s.438 certificate, including the Redacted Portions, the Court cannot determine whether the applicant suffered any practical injustice. That is so because the submission implies that the applicant would have been entitled to the Tribunal disclosing to him not only the s.438 certificate, but also the contents of the documents covered by the s.438 certificate, including the Redacted Portions. That implication is incorrect. The relevant question is whether the applicant suffered any practical injustice because the s.438 certificate was not disclosed; and that question is to be answered by considering what would have occurred had the Tribunal disclosed to the applicant the s.438 certificate. The answer to that question does not necessarily depend on the Court having before it all of the contents of the documents, including the Redacted Portions. It may be that the contents of the documents without the Redacted Portions are sufficient to permit the Court to conclude that the Tribunal’s not disclosing the s.438 certificate resulted in no practical injustice to the applicant. This, in fact, is what the Minister submits is the case.
The affidavit on which the Minister relies is one made by the Assistant Secretary in the Enterprise Identity Branch, Identity and Biometrics within the Intelligence and Capability Group of the Department (which was then known as the Department of Immigration and Border Protection). The Assistant secretary deposed he has reviewed the documents covered by the s.438 certificate. He deposes that the documents comprise a request for an examination of documents, being the applicant’s passport and national ID card, “the resultant Document Examination Unit Report” (DE Report), and an internal Departmental email attaching a final copy of the DE Report. The Assistant Secretary then refers to documents marked “MM-1”, which he says have been placed in a sealed envelope “in accordance with the statement of the Full Federal Court in Minister for Immigration & Border Protection v Singh [2016] FCAFC 183 at [67]”. The Assistant Secretary says he caused portions of the documents that he identified as “MM1” to be redacted on the ground that if those portions are revealed they would reveal the methods used by the Department in the course of its regular examination of identity documents; reveal information provided to the Department by international border and security agencies on a confidential basis, the release of which would compromise ongoing co-operation between the Department and those agencies; and would frustrate or compromise or impede the Department’s ongoing ability to detect fraudulent and counterfeit identity documents. A copy of the documents identified as “MM1”, excluding the Redacted Portions, is annexed to the affidavit.
Even with the removal of the Redacted Portions the nature and effect of the DE Report are clearly revealed. The DE Report examined the authenticity of the applicant’s passport and Pakistani Identity Card. It concluded that four pages of the passport had been fraudulently altered, but that the identity information on the biographical page is genuine; and that the identity card was genuine.
The question, then, is what would have occurred had the Tribunal disclosed to the applicant the existence of the s.438 certificate. In my opinion the applicant or his legal representative would have asked about the nature and contents of the documents that were covered by the s.438 certificate; the Tribunal would have informed the applicant that the documents concerned the authenticity of the applicant’s passport and Pakistani identity card; and the Tribunal would have also informed the applicant that the documents covered by the s.438 certificate confirmed the applicant was the person identified in the passports and that the identity and nationality of the applicant was not an issue in the application for review. Given the applicant’s identity and nationality were not an issue before the Tribunal, and the documents covered by the s.438 certificate could not reasonably be considered to be relevant to any question other than the applicant’s identity and nationality, the Tribunal’s not having disclosed the s.438 certificate to applicant, therefore, could not have deprived the applicant of an opportunity to advance his case, or to put any information or argument to the Tribunal, or otherwise suffer any detriment.
It follows that the Tribunal’s failure to disclose the s.438 certificate either did not lead the Tribunal into making a jurisdictional error or, if it did, as a matter of discretion, no relief should be granted.[81] Ground 3, therefore, also fails.
[81] BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198, at [33]
Ground 4 – failure to comply with s.425 of the Act
Ground 4 is as follows:
The Tribunal breached the principles of procedural fairness and s 425.
Particulars
a.The applicant claimed he feared persecution, in part, because the Taliban attacked a school in November 2007, and his village in April 2008.
b.The delegate did not doubt these claims.
c.The Tribunal did not accept these claims, but before doing so did not raise them with the applicant, or ask him to expand on them or explain why they should be accepted, contrary to the requirement of s 425 and the principles of procedural fairness.
This ground assumes the applicant claimed that the Taliban attacked a school in November 2007. That assumption is incorrect. The applicant claimed the Tribunal “commenced threatening the schools in my local area”, that the Taliban had issued threatening letters to students and teachers, and that schools were targeted because they were Shia schools. I will assume, therefore, that this ground intends to submit that the applicant claimed that the Taliban threatened, rather than attacked schools.
Even if this ground is to be read as claiming that the applicant had claimed schools were threatened, it assumes that the Tribunal did not accept the applicant’s claim that the Taliban threatened schools. That assumption is also incorrect. The Tribunal referred to the applicant’s claim that in about November 2007 the Taliban threatened schools. The Tribunal did not however, reject that claim or express any doubt about it. What the Tribunal did say was as follows:[82]
[T]he applicant made no mention of this alleged attack against his school at the Tribunal hearing, including when asked about specific incidents or problems that made him decide to leave Pakistan. The applicant has not put forward any specific claim to fear persecution on this basis or elaborated further in respect to his schools being attacked by the Taliban in the past in Kurram Agency, and the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on this basis on return to Pakistan
[82] CB324, [66]
On a fair reading of this passage, the Tribunal accepted or at least assumed as true the applicant’s claim that the Taliban threatened schools in November 2007, but found that by not mentioning this claim at the hearing, or otherwise not seeking to expand on it at the hearing, the applicant made no claim based on the Taliban targeting schools. The applicant has not claimed the Tribunal made any jurisdictional error in making this finding.
Ground 4, therefore, fails, because it is incorrectly premised on the Tribunal having doubted or not accepted the applicant’s claim that in 2007 the Taliban threatened schools.
Conclusion and disposition
The applicant has succeeded on one of the four grounds stated in the amended application. In those circumstances I propose to order that the Tribunal’s decision be quashed, and to order the Tribunal consider the applicant’s application for review according to law.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 16 August 2018
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