BAV22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 501
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BAV22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 501
File number: MLG 692 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 7 June 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection visa – whether the Tribunal committed a jurisdictional error by reasons of irrationality or unreasonableness – whether Tribunal gave proper consideration to applicant’s submissions and country information provided – where Tribunal’s findings reasonably open on the evidence before it – where the Tribunal’s consideration of country information and submissions is evidenced in its reasons – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36(2)(a) and (aa), 425 and 430 Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
CGA15 v Minister for Home Affairs [2019] FCAFC 46
CID15 v Minister for Immigration and Border Protection [2017] FCA 780
CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290
ETA067 v Republic of Nauru [2018] HCA 46
Minister for Immigration and Citizenship v SZMDS
[2010] HCA 16Plaintiff M1/2021 v Minister for Home Affairs
[2022] HCA 17Division: Division 2 General Federal Law Number of paragraphs: 131 Date of last submissions: 30 April 2024 Date of hearing: 30 April 2024 Place: Melbourne Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Clothier Anderson & Associates Counsel for the First Respondent: Mr Barrington Solicitor for the Respondents: Mills Oakley ORDERS
MLG692 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAV22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of the Administrative Appeals Tribunal (‘the Tribunal’) dated 22 February 2022 affirming a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) not to grant the applicant a subclass XA-866 protection visa (‘protection visa’).
BACKGROUND
The applicant is a citizen of Pakistan of Pashtun ethnicity and Sunni Muslim religion.[1]
[1] Court book at pages 16 and 18.
He arrived in Australia in June 2016 as the holder of a ‘maritime visa’.[2]
[2] Court book at pages 23 and 25.
Application for a protection visa on 29 July 2016
On 29 July 2016, the applicant applied for the protection visa assisted by a migration agent.[3] His application annexed a Statutory Declaration dated 29 July 2016 in which he sets out the basis of his protection claims.[4]
[3] Court book at pages 3 to 48.
[4] Court book at pages 50 to 53.
The applicant claimed that he was born in Pakistan and relocated within the country in May 2011 as it was no longer safe to reside in the place of his birth due to his membership of a ‘lashkar’ and the Awami National Party (‘ANP’), both of which were opposed to the Taliban. At the time of writing his Statutory Declaration, the applicant claimed that it remained a dangerous place for him. The applicant claimed to fear harm upon return to Pakistan and further that he was not able to relocate to anywhere within the country.
On 6 April 2017, the applicant, via his representative, was invited to attend an interview with the Department of Immigration and Border Protection (‘the Department’).[5] On 17 April 2017, the applicant’s representative provided by email to the Department ‘country information and submissions in support of the applicant’s claims’, for consideration prior to the scheduled interview.[6]
[5] Court book at pages 102 to 105.
[6] Court book at pages 114 to 155.
On 21 April 2017, the applicant attended an interview with the Department, together with his representative.[7]
[7] Court book at page 178.
On 16 May 2017, the delegate refused the applicant’s application for a protection visa.[8] The delegate found that, having regard to the applicant’s claims and relevant country information, although he had previously been involved in a ‘lashkar’ and was a member of a political party opposed to the Taliban, his delay in seeking asylum and comments regarding work suggested that he ‘did not apply for protection because he was fearful of return to Pakistan but rather because he wanted to seek a different life for himself and his family in Australia’.[9]
[8] Court book at page 172.
[9] Court book at page 180.
Application for review in the Tribunal on 22 May 2017
On 22 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[10] He was again assisted by his representative in making this application.
[10] Court book at pages 187 to 188.
On 22 March 2021, the applicant was invited to attend a hearing before the Tribunal.[11]
[11] Court book at pages 208 to 213.
Submissions and country information were provided to the Tribunal by email by the applicant on 9 April 2021,[12] as well as a death certificate indicating that the applicant’s father had passed away and medical information relating to the applicant’s son.[13] On the same day, the applicant’s representative provided further country information to the Tribunal via email, including various news articles.[14] On 14 April 2021, the applicant provided to the Tribunal: a statutory declaration of the witness to be called at the Tribunal hearing, a copy of the applicant’s most recent bank statement, and further country information.[15]
[12] Court book at pages 224 to 236.
[13] Court book at pages 237 to 268.
[14] Court book at pages 269 to 320.
[15] Court book at pages 323 to 325; 329 to 351.
The hearing record indicates that the applicant attended the hearing before the Tribunal on 16 April 2021, together with his representative and one witness, and was assisted by a Pashto interpreter.[16]
[16] Court book at pages 358 to 360.
On 23 April 2021, the applicant provided to the Tribunal post-hearing submissions and country information.[17] The applicant sent a further two emails to the Tribunal on 20 December 2021 and 27 January 2022, providing ‘recent country information’.[18]
[17] Court book at pages 361 to 367.
[18] Court book at pages 368 to 371.
On 23 February 2022, the Tribunal handed down its decision affirming the delegate’s decision not to grant the applicant a protection visa.[19]
[19] Court book at page 376.
TRIBUNAL’S REASONS
The Tribunal’s decision of 23 February 2022 is set out at pages 377 to 395 of the court book.
After setting out the relevant background to the application and material before it, the Tribunal identified the issue for determination, being ‘whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection’.[20]
[20] Tribunal decision record dated 23 February 2022 at paragraph [11].
The Tribunal then addressed the applicant’s background and circumstances, in particular acknowledging the submissions and material related to his son, who suffers from a medical condition affecting his ability to talk, eat or walk independently and causing him to be bedridden.[21]
[21] Tribunal decision record dated 23 February 2022 at paragraphs [13] to [24].
At paragraph [26], the Tribunal accepted that the applicant is a citizen of Pakistan and that Pakistan is the receiving country for the purpose of section 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
At paragraph [30], the Tribunal summarised the applicant’s claims for protection as follows:
Essentially, the applicant claims if he returns to Pakistan he faces serious harm from the [Taliban] because he was a member of the ANP and a member of a Village Defence Committee, also known as a lashkar. If he returned to Pakistan, there would be a family obligation to join the lashkar again which would put him at risk of harm from the [Taliban]. He also states that as a Pashtun he cannot relocate to another area of Pakistan as there is discrimination against Pashtuns in various areas and militants dispersed throughout the country. He also claimed that he would suffer stigma as the parent of a seriously disabled child.
In exploring the applicant’s claims for protection, the Tribunal made the following findings:
(a)The applicant’s involvement in the political party was very limited, with his last involvement in the party dating back to 2011;[22]
(b)The applicant would not be expected to be actively involved in the political ANP if returned to Pakistan;[23]
(c)The applicant has not had any involvement in a lashkar since May 2011, and any involvement prior to this time was minimal;[24]
(d)The security situation in Pakistan has vastly improved when compared to the situation 10 years ago;[25]
(e)The applicant did not leave the ship in 2016 and apply for protection in Australia due to increased terrorist incidents in Pakistan;[26] and
(f)Any stigmatisation or derogatory comments made to the applicant with respect to his son’s disability would not amount to serious harm.[27]
[22] Tribunal decision record dated 23 February 2022 at paragraphs [45] and [49].
[23] Tribunal decision record dated 23 February 2022 at paragraph [50].
[24] Tribunal decision record dated 23 February 2022 at paragraph [76].
[25] Tribunal decision record dated 23 February 2022 at paragraph [99].
[26] Tribunal decision record dated 23 February 2022 at paragraph [116].
[27] Tribunal decision record dated 23 February 2022 at paragraph [125].
In light on the above findings made by the Tribunal, and consideration given to various sources of country information, the Tribunal ultimately found that the applicant did not meet the refugee criterion in section 36(2)(a) nor the complementary protection criterion in section 36(2)(aa) of the Act.
The Tribunal therefore affirmed the decision of the delegate.[28]
[28] Tribunal decision record dated 23 February 2022 at paragraph [137].
PROCEEDINGS IN THIS COURT
On 4 April 2022, the applicant applied for judicial review in this court. The applicant subsequently filed an amended application and further amended application on 16 November 2023 and 6 March 2024 respectively.
The further amended application raises three grounds of review, which are set out in detail below.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant claims that:
1.The Tribunal’s finding at [74] that the applicant’s oral evidence was “vague and generalised” was irrational, or alternatively, constituted an unreasonable approach to the review.
Particulars
a)The Tribunal rejected the applicant’s claim that he had regularly taken part in lashkar activities such as patrolling or pointing out the residences of militants, on the basis that the oral evidence given to the Tribunal about his participation in lashkar activities was “vague and generalised”.
b)The transcript of the hearing before the Tribunal reveals that the applicant’s evidence was appropriately detailed in response to the questions framed by the Tribunal member.
c)The evidence on which the Tribunal relied, namely the oral evidence at the Tribunal hearing, could not rationally be characterised as “vague or generalised” in its context.
d)The irrational finding was material to the Tribunal’s decision.
e)Alternatively, the Tribunal’s finding was unreasonable in circumstances where the Tribunal member could have invited the applicant to elaborate during the hearing but instead changed the topic of the questioning.
At annexure CJF-3 to the affidavit of Catherine Jane Farrell affirmed 15 November 2023 (‘the Farrell affidavit’), is a transcript of the applicant’s Tribunal hearing held on 16 April 2021.
It is submitted for the applicant that when regard is had to the applicant’s evidence given at that hearing about his involvement in the lashkar patrols, his evidence contains ‘significant detail’, and that the applicant’s evidence came to an end because he was interrupted by the Tribunal member. Relevantly, the applicant relies on the transcript at page 17 of CJF-3 which contains the following exchange:
Member:So, I guess – what I’m trying to get you to tell me is more about the steps you took to join or how you became part of this group. Not so much why you did, but what you did.
Interpreter: When in 2009 we returned to SWAT, the village, we came to our village, our house. We talked to the military about the damage to our house and to our farm land. And they say that you form a group, and group members would identify Taliban members and their houses. So there, I joined that ground, so I we would identify and show Taliban. And at night time, when the people from other villages, like visited our village. Their relatives in our village. So we would pass on information to – to the police force and the military that, you know, people are visiting our village. That would happen at night. So, depending on the actual season, it’s like night time, you know, from starting from 7.00pm 7p.m. (indistinct) morning prayer time. You know, first thing we would go to the check posts, military check posts. So, like the group members would get together and then go to the military check posts. So they would give us a contact number, or send the military person with us. Then they would come to Lower Kanju and we would go towards – towards the river, Swat river, and then from there to Kanju Bazar. So at that time, during night, like if people had left their villages, the village – some people from other places were – had come to the village, visiting, and anything that was happening, we were ---
Member:Like, general sort of ---
Interpreter: Collect that information and pass it on.
Member:Yes, general community information.
Interpreter: Yes, that’s what he did.
It is submitted for the applicant that the Tribunal member then went on to ask other questions to which the applicant provided a response. It is submitted that when regard is had to the applicant’s responses, the applicant provided detail about timing, the route taken by the group, where the group went, their interactions with the police and the military and their purpose, namely, to identify Taliban members and their houses. It is submitted that the applicant’s response could not rationally or reasonably be characterised as vague or general. Moreover, it is submitted that if the Tribunal member was unclear about that evidence, they could have sought further clarification, but they did not do so. Rather, they went on to other matters. In those circumstances, it is submitted that no reasonable decision maker could have concluded, as the Tribunal member did here, that the applicant’s evidence was unclear and use that as a basis for rejecting the applicant’s claims.
As stated by their Honours, Justice Crennan and Justice Bell in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135]:
… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. …
In this case it is submitted that the Tribunal’s finding that the applicant’s evidence was so vague or generalised that it justified the dismissal of the applicant’s claims altogether was not open from the oral evidence before the Tribunal. This is particularly so, it is submitted for the applicant, when regard is had to the Tribunal’s own questioning which directed the applicant’s responses or at the very least impacted the applicant’s ability to provide more fulsome responses.
It is also submitted for the applicant that the purpose of inviting an applicant to a hearing to give evidence and present arguments under section 425 of the Act, is to allow the applicant an opportunity to persuade the decision maker that they satisfy the criteria for the granting of a visa, in circumstances where, by definition, the Tribunal is not satisfied that the applicant meets that criteria.[29] It is submitted that when regard is had to the transcript of the hearing before the Tribunal, it is clear that the applicant was not given that opportunity. For each of these reasons, the applicant submits that the Tribunal’s reasoning is irrational or illogical.
[29] DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290 at [80]-[81].
I do not accept this submission.
First, when regard is had to the Tribunal’s findings as a whole, I find that the Tribunal did not entirely dismiss the applicant’s evidence in relation to his involvement with the local lashkar. The Tribunal accepted that between 2010 and May 2011, the applicant may have observed the activities of the local lashkar and may even have participated in some such activities. But it did not accept that he was regularly involved in those activities such as patrolling and pointing out the residences of militants. Moreover, at paragraph [75] of its reasons, the Tribunal did not accept that the applicant had a leadership role in the lashkar.
Secondly, it is apparent from the Tribunal’s reasons that it had regard not only to the evidence given by the applicant in the hearing but also to the applicant’s statements to the delegate, as evidenced in the delegate’s reasons.[30] The Tribunal also referred to the applicant’s evidence given at the Tribunal hearing at paragraphs [62] to [68] before setting out the country information about lashkars at paragraphs [69] to [72].
[30] See Tribunal decision record dated 23 February 2022 at paragraphs [60] to [62].
It is against this background that the Tribunal’s findings at paragraphs [74] must be viewed. Whilst the first sentence refers to the applicant’s oral evidence being ‘vague and generalised’, the balance of that paragraph is not limited to the Tribunal’s assessment of the applicant’s oral evidence but rather, when read fairly, is a reference to its assessment of the applicant’s evidence on this issue as a whole.
It is also relevant to note that the Tribunal did not say that the applicant provided no information about the lashkar and his role in it, rather, it was the quality of that evidence that the Tribunal commented upon.
When viewed as a whole, these observations and findings were reasonably open on the evidence before the Tribunal and no irrationality or illogicality arises.
In the alternative, the applicant says that the approach that the Tribunal took to this evidence was legally unreasonable. In particular, it is submitted for the applicant that in circumstances where the Tribunal itself interrupted the applicant’s evidence and curtailed his evidence in this matter by moving onto another topic, it was unreasonable to make a finding that the applicant’s evidence was vague and generalised without seeking further clarification from the applicant.
The applicant submitted that this approach was contrary to the approach necessary for the Tribunal to discharge its statutory task and in doing so assess the applicant’s credibility in a lawful manner. The applicant refers to and relies upon the observations made by the court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (‘AVQ15’), at [23] and [24]:
[23]A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.
[24]In their text The Law of Refugee Status … James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail … the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as ‘a quest to disbelieve’ … or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude:
‘As can be seen, the tools available to assess the credibility of an applicant’s testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge test is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant’s particular circumstances. Demeanour assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant’s understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided … through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.’
The Minister submits that AVQ15 is of limited, if any, assistance in determining this matter. It relates to the resolution of inconsistencies and how that assessment ought be undertaken. The Tribunal’s findings here did not require an assessment of inconsistencies in the applicant’s evidence. There is much force to this submission.
The Tribunal accepted that the applicant may have had some involvement with the lashkar but simply did not accept that that involvement was to the extent or at the level claimed by the applicant. Moreover, in reaching its conclusion that the applicant’s evidence lacked detail and was vague, the Tribunal did not rely on issues of credibility per se. Rather, the Tribunal concluded that the nature of the evidence given did not establish that the applicant had the level of involvement, or level of seniority, claimed.
Finally, as noted by the High Court in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34, whilst care must be taken in assessing the demeanour of a witness, that is still a factor that a decision maker may take into account in appropriate circumstances. And in assessing the applicant’s evidence in the present case, albeit given via an interpreter, the Tribunal had the benefit of assessing that evidence directly with the applicant present before him, not simply from the reading of a transcript.
In these circumstances, and given that the applicant was on notice that the lack of detail in his claims about his involvement with the lashkar was an issue given the observations that the delegate had made about the applicant’s evidence in this regard, it was not unreasonable for the Tribunal to draw the inference that it did about the applicant’s involvement from the applicant’s failure to provide any greater level of detail about this issue.
Whether the applicant was afforded an opportunity to persuade the Tribunal that the applicant satisfied the criteria for a visa cannot be viewed in isolation. In this case, it must be viewed in the context of the applicant having been put on notice by the delegate’s reasons. In addition, the transcript shows that at the end of the hearing, the Member asks the applicant if there is anything else that he would like to say that has not been covered and the applicant says ‘no’.[31] Having regard to all of these factors, the approach adopted by the Tribunal does not disclose legal unreasonableness. The applicant was not denied an opportunity to persuade the Tribunal that he met the criteria for a protection visa.
[31] Affidavit of Catherine Jane Farrell filed on 16 November 2023, Annexure CJF-3, page 36.
For these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant asserts that:
2.The Tribunal misunderstood or misdirected itself in the performance of its statutory task under s 36(2)(aa) of the Migration Act 1958 (Cth), being an assessment of whether there was a real risk that the Applicant would face significant harm upon return to Pakistan, or alternatively, made a finding that was irrational, in that it would not rationally be supported by the information on which the Tribunal purported to rely for that finding.
Particulars
a)The Tribunal was required to assess whether the applicant faced a real risk of significant harm as a consequence of removal from Australia to his home area in Pakistan, regardless of the reason for the harm and regardless of whether the applicant was being personal targeted, into the foreseeable future.
b)The Tribunal’s finding at [130] that the level of violence conflict (sic) in Pakistan was “not such that there is a risk that he will be arbitrarily deprived of his life” was based entirely on the premise that prevailing levels of violence were lower than they had been in 2013 and 2014.
c)The Tribunal addressed itself to the wrong question, focusing on a comparative exercise as to whether levels of violence had been higher in the past, rather than the objective assessment of risk to the applicant at present and into the foreseeable future.
d)Further and alternatively, the assessment of levels of harm, purportedly based on the January 2022 DFAT Country Information Report, could not rationally have been drawn from that report.
By ground 2 the applicant submits that the Tribunal failed to apply the correct approach to the determination of whether the applicant faced a real risk of harm if he were to return to Pakistan in the assessment of whether Australia’s complementary protection obligations were engaged. It did so, according to the applicant, in two ways.
First, it is said for the applicant that the Tribunal applied a relative test to the assessment of the risk of harm rather than assessing the risk of harm in absolute terms. That is, it focused on the relative decline in levels of violence in the applicant’s home area rather than assessing the risk of harm per se to determine whether the applicant faced a real risk of harm.
Secondly, the applicant says that the Tribunal failed to provide any analysis of the likelihood of levels of violence into the reasonably foreseeable future.
In support of this aspect of ground 2, the applicant submits that the Tribunal failed to ask whether the levels of violence at the time of the decision and into the reasonably foreseeable future of themselves posed a real risk of significant harm, but rather considered whether there had been a decline in the risk of violence compared to historic highs. That is, even if the risk of harm from violence was lower than it had been, it may nonetheless have constituted a real risk of significant harm.
At paragraph [127] of the Tribunal’s decision record, the Tribunal noted that as the Tribunal found that the applicant did not satisfy the refugee criteria, it had to consider ‘whether there is a real risk the applicant will suffer significant harm if he is removed from Australia to Pakistan’. The Tribunal then set out the meaning of the term ‘significant harm’.
At paragraph [129] the Tribunal noted that it considered that the applicant had not engaged in any conduct which would result in him suffering the death penalty or be subjected to torture in Pakistan.
The Tribunal then went on to say at paragraph [130] of its reasons:
Country information indicates that Pakistan’s security situation has vastly improved over the last 10 years but has suffered a deterioration since the middle of 2021. Despite this, the number of terrorist incidents has significantly decreased since 2013 … and remains much lower than levels of terrorist violence experienced in 2013 and 2014. If the applicant returns to Pakistan the Tribunal considers that the level of violent conflict in Pakistan is not such that there is a real risk he will be arbitrarily deprived of his life.
It is submitted for the applicant that in considering the relative risk of violence in Pakistan, the Tribunal asked itself the wrong question and therefore did not apply the correct test. Moreover, it is submitted that the last sentence of paragraph [130] does not cure the defect evident from the analysis in the bulk of that paragraph.
In support of this submission, the applicant refers to and relies upon the decision in CID15 v Minister for Immigration and Border Protection [2017] FCA 780 where his Honour Justice Moshinsky, in considering the ‘real chance’ test said, at [35]:
The ‘real chance’ test is an objective one, whereby the decision-maker considers whether there is more than a remote or far-fetched chance of the applicant being harmed in a place. I note that in SVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, Judge Driver said: “The test of whether there is a real chance or a real risk of harm is not a relative one. It is not determinative whether the risk in one place is ‘less severe’ than the risk in another place. What matters is the actual level of risk in any particular place” … I respectfully agree with this statement of principle.
Similar observations were made by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 (‘CGA15’) at [23], when the court went on to say:
… It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J.
In CGA15, however, the Court went on to say, at [25]:
The question as to whether the Tribunal’s reasons disclose a misunderstanding or misapplication of the ‘real chance’ test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error … The Court’s focus must be whether having regard to the Tribunal’s reasons in this case it is more probable than not that the Tribunal misunderstood or misapplied the test. The appellant has the onus to show jurisdictional error …
(Emphasis in original)
Similar observations were made by Justice Anderson in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663 (‘CJE16’) at [32] in the context of a claim that the Tribunal had misapplied the ‘real chance’ test by applying a ‘relative’ temporal assessment rather than an absolute assessment as required. Relevantly, Justice Anderson said:
[33]The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk is less severe at a relevant point in time than it was previously. It is plain that the mere fact that a person might be safer at the relevant point in time (B) than at an earlier point in time (A) does not entail that the person does not face a real chance of persecution at point in time B. For example, if point in time A was very unsafe and point in time B is relatively safer it might still be the case that a person faces a real chance of serious harm at point in time B.
[34]Caution should be exercised, however, in the application of this principle in construing the reasons for the decision under judicial review. The mere reference in the reasons of a decision-maker to a risk existing at a point in time previous to the time at which the decision is made does not, by itself, warrant the conclusion that the decision-maker has misapplied the ‘real chance’ test. Neither does a mere reference to the degree of risk having improved over a period of time. There are two key reasons for this.
[35]The first reason relates to the nature of the country information before the decision maker …
[36]Second, the decision-maker will naturally assess the application for protection by reference to the particular claims for protection advanced by the applicant, and the particular events which are said to support those claims. … This … does not excuse the decision-maker, for the purposes of determining the application, from having to form a view, as at the date of decision, as to the absolute chances that the applicant will suffer the claimed persecution in the reasonably foreseeable future if returned. Ultimately, whether the relevant decision-maker has engaged in a misapplication of the ‘real chance’ test depends on the construction of the decision-maker’s reasons as a whole and, in particular, the substantive part of those reasons, rather than recitations in the introduction or the conclusions.
For the following reasons, applying these principles to the present case, I am not satisfied on the balance of probabilities that the Tribunal fell into error in considering whether Australia’s complementary protection obligations were engaged in this instance.
First, as stated in CJE16, to understand the Tribunal’s reasons, regard must also be had to the submissions made on behalf of the applicant to which the reasons respond. In this case, the applicant, through his representative, made submissions about the long history of attacks against ANP members and that despite the gains made by the Pakistani government, the Taliban remained motivated to harm ANP members and have done so and further made reference to the Taliban re-grouping in the applicant’s area.[32] In those circumstances, the Tribunal addressed the security situation in Pakistan, including the extent to which that had changed over time.
[32] Court book at page 366.
Moreover, the Tribunal’s reasons in relation to the complementary protection criteria, must be read as a whole, fairly and without a keen eye to discern error and in context. The Tribunal engaged in a more detailed analysis of the country information regarding the violence against ANP members at paragraphs [95] to [99]. At paragraph [108], the Tribunal also noted that although there had been a trend of decreasing violence in recent years, there was a modest increase in violent attacks in 2020. At paragraph [112], the Tribunal also noted that whilst there had been a number of incidents in other regions, there had only been one violent incident in Swat during 2021.[33] Also at paragraph [114], the Tribunal noted that it appeared from country information that the TTP had changed their tactics and now appeared ‘to focus their attacks on government and security officials, pro-government elders and political leaders’.
[33] See also Tribunal decision record dated 23 February 2022 at paragraph [114].
Finally, the Tribunal, after briefly referring to the country information about the security situation in Pakistan, concluded paragraph [130] with a statement suggesting that it assessed the risk of harm in an absolute, not relative, sense.[34]
[34] CJE16 at [29].
I accept that there are various references in the Tribunal’s reasons to trends in terms of violence in Pakistan, including in paragraph [130]. As stated, this is not determinative in circumstances where these findings and observations were responsive the applicant’s submissions. Moreover, when regard is had to the Tribunal’s reasons as a whole, and read fairly, and giving meaning to the last sentence in paragraph [130], I am not satisfied that the Tribunal misunderstood or misapplied the real risk assessment required. The evidence before the Tribunal was about trends as well as specific incidents at different times which were all relevant to the determination of a risk assessment. The Tribunal, by the last sentence in paragraph [130], made it clear that whilst it was aware of and understood that there had been a historic improvement in the security situation, there had been a recent spate of adverse security incidents, in considering the future risk, and formed the view that the applicant would not face a risk of arbitrary deprivation of life if he were to return to Pakistan. That finding was reasonably open and evidences that the Tribunal engaged with and discharged its statutory task.
When viewed in totality, the first aspect of ground 2 is not made out.
Moreover, the applicant submits that there is nothing in paragraph [130] which indicates that the Authority gave consideration to the question of whether there was a risk of harm in the reasonably foreseeable future as required. In CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, Mortimer J (as her Honour then was) said, at [60]:
The ‘reasonably foreseeable future’ is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the ‘well-founded’ aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risk a person may face in the practical ‘on the ground’ circumstances she or he will be living in. Using ‘reasonably foreseeable’ also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
The applicant submitted that ‘… on no view did [the Tribunal] complete its statutory task by asking what risk the applicant was likely to face into the reasonably foreseeable future’. The applicant went on to submit that the Tribunal’s reasons were ‘purely backward looking’ and contain no assessment at all as to whether there is likely to be an increase in violence into the future and if so, how that would affect the risk faced by the applicant.
It is submitted that whilst the Tribunal acknowledged at paragraph [130] that there had been a recent deterioration in the security situation, it did not go on to explain or consider the impact of that on the future risk to the applicant. The applicant points to aspects of the DFAT report, a copy of which is annexure CJF-4 to the Farrell affidavit, which provided country information about the security situation in Pakistan and with which the Tribunal could have engaged in assessing the risk into the reasonably foreseeable future. The applicant submits that whilst it was open to the Tribunal to reject this information or to distinguish it in some way, it was not open to the Tribunal to simply ignore this information and not assess the risk faced into the reasonably foreseeable future.
As stated, the Tribunal’s reasons must be read in their entirety, fairly, and without a keen eye to error. Adopting this approach, it is apparent that the Tribunal, whilst considering what had occurred in the past, was aware of and did apply a forward-looking approach to its assessment of risk. For example, at paragraph [90] the Tribunal refers to the fact that it is ‘not satisfied that if the applicant returns to Pakistan now or in the foreseeable future he faces a real chance of persecution …’.
Similar words are used in paragraph [92] in the context of considering whether the applicant would on his return become actively involved in the ANP as part of the Tribunal’s assessment of the future risk of harm to the applicant.
Similar wording is again used in paragraphs [100], [101], [102], [113] and [124]. These references relate to the Tribunal’s consideration of whether the applicant met the refugee criteria. Turning then to the consideration of the complementary protection criteria, at paragraph [127] the Tribunal expressly states that it ‘must now consider whether there is a real risk the applicant will suffer significant harm if he is removed from Australia to Pakistan’. This is a clear indication that the Tribunal was aware of the forward-looking task it had to undertake.
Similarly, at paragraph [129], the Tribunal stated that it ‘considers that the applicant has not engaged in any conduct which would result in him suffering the death penalty or be subjected to torture in Pakistan’. The Tribunal also expressly refers to the forward-looking assessment at paragraph [130] where it says ‘If the applicant returns to Pakistan the Tribunal considers …’.
When read fairly, it cannot, in my view, be said that the Tribunal failed to undertake a forward-looking assessment of the risk of harm in the reasonably foreseeable future to the applicant if he were to return to Pakistan.
For these reasons, this aspect of ground 2 is not made out.
Finally, the applicant submits that the Tribunal’s reliance on the DFAT report at paragraph [130] was irrational. Relevantly, the applicant submits that the DFAT report, being the only country information expressly referred to by the Tribunal, reported that there had been an increase in violence in the preceding six months. Moreover, the applicant had submitted that that violence was likely to increase in the future, particularly in the lead up to the 2023 election. In those circumstances, the applicant submits that the Tribunal could not have rationally relied upon this report as the basis of the conclusion reached that there was no risk of harm to the applicant.
Whilst DFAT may have reported an increase in violence in the previous six months, that does not necessarily, and inexorably lead to the conclusion that the applicant faced a real risk of significant harm. Moreover, the applicant’s submission conflates the country information before the Tribunal and the applicant’s submissions about what he considered to be a likely outcome in the lead up to the 2023 election.
Further it is apparent from a fair reading of the Tribunal’s reasons, particularly at paragraph [114], that the Tribunal was aware of the DFAT report the applicant now relies upon. However, the Tribunal also makes it clear that it also considered other country information on this issue and noted the difference in terrorist attacks in Swat compared to other tribal areas.[35]
[35] Tribunal decision record dated 23 February 2022 at paragraph [114], footnote 26.
The Tribunal’s consideration of the DFAT report does not disclose any irrationality and therefore this aspect of ground 2 is also not made out.
For each of these reasons, ground 2 is not made out.
Ground 3
By ground 3, the applicant claims that:
3.The Tribunal failed to give proper consideration to the applicant’s submissions regarding recent violent events committed by militants in his home area.
Particulars
a)The Tribunal failed to have regard to the applicant’s submission in the Tribunal hearing and the supporting evidence regarding an attack on the applicant’s home village on 17 March 2021.
b)The Tribunal failed to have regard to the applicant’s post-hearing submissions of 23 April 2021 rebutting certain parts of the UK Home Office report and emphasising other parts, and the submission that levels of violence were likely to escalate in the reasonably foreseeable future in the lead-up to the upcoming 2023 election.
c)The Tribunal failed to have regard to the applicant’s post-hearing submissions of 23 April 2021 to the effect that terrorists and militants were regrouping in the applicant’s home area.
d)The Tribunal failed to have regard to the applicant’s post-hearing submissions of 20 December 2021 referring to a recent suicide attach in northwest Pakistan.
By ground 3, the applicant claims that the Tribunal overlooked, ignored or failed to respond to various substantive submissions made in his oral hearing and in his post-hearing submissions. It is submitted that if the court finds that the Tribunal failed in any one of the specified manners, that is sufficient to ground a finding of jurisdictional error. Further, it was submitted that if the court were to find numerous failings as claimed, that would only serve to increase the severity of the Tribunal’s failure to undertake its statutory task.
The applicant says that the Tribunal’s failure to consider or engage with these matters, is evident from its failure to mention any of them in its reasons. Moreover, it was further submitted that the relevant submissions made on behalf of the applicant could not fairly have been considered to be immaterial to the review. Rather it was submitted that each of the matters raised were rationally capable of affecting the Tribunal’s decision and therefore ought to have been engaged with by the Tribunal if it were in fact properly exercising its statutory task.
In order to determine whether this ground is made out, it is necessary to have regard to what the Tribunal was required to do in undertaking a review.
It is also necessary to have regard to the nature of the Tribunal’s task in providing written reasons of its decision. Section 430 of the Act relevantly provides:
(1)Where the Tribunal makes its decision on a review … the Tribunal must make a written statement that:
(a)…
(b)…
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)…
(f)…
Section 430 therefore requires the Tribunal to set out in its decision, the material findings of fact it has made and the evidence (and other material) upon which those findings were based. The absence of a reference to a particular item of evidence or submission, must be viewed in that context.
The task of an administrative decision maker was explored by the plurality of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [24] to [26]:
24… there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations … Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder.
25It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26Labels like ‘active intellectual process’ and ‘proper, genuine and realistic consideration’ must be understood in their proper context. These formulas have the danger of creating ‘a kind of general warrant, invoking language of indefinite, and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko Wallsend Ltd, ‘[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind’. The court does not substitute its decision for that of an administrative decision-maker.
In addition, where a decision is impugned as a result of the absence of a reference to a particular submission or argument, the court must be mindful not to be too quick to conclude that this absence is the result of the decision maker failing to consider that submission or argument. As the court noted in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, at [47]:[36]
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[36] See also ETA067 v Republic of Nauru [2018] HCA 46 (‘ETA067’) at [13].
Moreover, even where it might be said that the decision maker did not consider evidence before it, or an issue raised by that evidence, the question remains as to the whether that evidence, or the issue, was material to the applicant’s claims. As the High Court said in ETA067, at [14]:
… there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material; including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.
Having regard to these principles, I now turn to consider how the Tribunal dealt with the applicant’s claims and submissions given both in person and post-hearing. It is submitted for the applicant that the Tribunal failed to properly consider the following matters:
(a)the attack on the applicant’s village on 17 March 2021;
(b)the UK Home office report and risk of violence connected to the upcoming election;
(c)the alleged regrouping of terrorists and militants in the applicant’s home area; and
(d)the claim in the applicant’s post-hearing submission made on 20 December 2021 about an alleged new incident which the applicant says was directly relevant to his claims.
I will address each of these in turn. In summary, however, the applicant submits that there is no reference to any of these matters in the Tribunal’s reasons and therefore the court ought conclude that the Tribunal failed to consider any of them and in doing so failed to discharge its statutory task.
Whilst I accept that there is no express reference to any of these specific matters in the Tribunal’s reasons, the Tribunal has clearly considered the recent situation in Swat in the course of its reasons. At the heart of the Tribunal’s assessment of the risk of harm to the applicant was not, in my view on a fair reading, a lack of appreciation of the risks, but rather an assessment that the applicant was not subject to those risks because he did not have the requisite profile. That reasoning does not, in my view, disclose an error.
I also note that each of the issues which the applicant claims the Tribunal failed to give consideration to arose from the applicant’s post-hearing submission. Before I turn to consider the country information and claims that the applicant says the Tribunal failed to consider, it is relevant to note the context in which that country information and those submissions were made. Following the hearing before the Tribunal on 16 April 2021, the applicant’s representative sent a post-hearing submission. That document contained the following:
We refer to the hearing on 16 April 2021, and thank the Tribunal for the opportunity to provide a reply submission.[37]
[37] Court book at page 362.
The applicant’s representative then addressed the information from the UK Home Office and from the Pakistan Institute for Peace Studies, both of which had been raised with the applicant in the course of the hearing. In responding to this material, the applicant’s representative both made submissions about how that information ought be interpreted and also made reference to other country information which provided more up to date information about what was happening on the ground in Swat and in Pakistan more generally.
It was in this context that the applicant’s representative referred to news articles which spoke of a ‘regrouping’ of terrorists in Swat and also information about an alleged incident which occurred some four hundred meters from the applicant’s home.
After setting out this information, the applicant’s representative went on to say, under the heading ‘Conclusion’:
It is submitted that country information shows the following:
1. There has been a long history of attacks against ANP and peace committee members;
2. However, it is accepted that the Pakistani government has made gains in terms of increased security in Swat and Khyber Pakhtunkhwa;
3. Despite that, the Taliban remain motivated to harm ANP and peace committee members, and have done so;
4. There is recent evidence of the Taliban re-grouping in the applicant’s area;
5. There is recent evidence of Taliban presence/activities in Kanju (and Kanju is a relatively small area); and
6. There is evidence that violence against the ANP increases in the lead up to elections.
In all the circumstances, it would appear open to the Tribunal to find that the current situation is fragile, and that it is possible that the applicant could be harmed because of his (and his family’s) opposition to the Taliban and political profile.[38]
[38] Court book at page 366.
In addition, by email dated 20 December 2021, shortly before the Tribunal made its decision, the applicant’s representative provided a further written submission in which he notified the Tribunal of a new incident that he says was directly relevant to the applicant’s claims. Relevantly, that submission contained the following:
The applicant provides the following recent country information.
The Tribune, 2 killed, 4 injured in suicide attack on ANP vehicle in northwest Pakistan … states that :
At least two persons were killed and four others injured in a suicide attack on an Awami National Party (AWP) vehicle in Pakistan’s Bajaur tribal district bordering Afghanistan …
The vehicle was being used for ANP workers amid local government polls in Bajaur …
…
This was the second targeted attack on ANP as the party’s local leader … was killed on Friday when unidentified gunmen opened fire at him outside his house …. [39]
[39] Court book at page 368.
At paragraphs [9] and [10] of the Tribunal’s decision record, the Tribunal set out the material that was before it and specifically refers to the applicant’s post-hearing submission dated 23 April 2021 and ‘items of country information provided in December 2021 and January 2022’.
It is in this context that ground 3 is to be assessed. The Tribunal, as stated, is only required to record in its reasons for decision, its material findings of fact and the evidence upon which those findings were based. When viewed in this context, the failure to refer specifically to each of the matters identified in ground 3 does not in my view, evidence error. Rather, it is explicable by reference to the factual findings made by the Tribunal about the applicant’s minimal involvement many years prior to leaving Pakistan both with the ANP and also with the lashkar. Those findings led the Tribunal to conclude that the applicant did not therefore face a risk of harm as required to satisfy the relevant criteria. Having come to this view, it was not necessary for the Tribunal to consider evidence of the risk of harm to persons who had a different profile, namely persons who had a more significant involvement with either the ANP or the lashkar.
I will now address each of the specific matters raised by the applicant in ground 3.
17 March 2021 incident
In relation to the incident on 17 March 2021, the applicant refers to the fact that, in the course of the hearing before the Tribunal in response to an assertion by the Tribunal member that there had been a recent decline terrorist attacks and sectarian violence, the applicant said:
Like, really think that people don’t get target? I mention that on 17 March, there was an attack in our village. And it happened in our village, and I’ve shared the news article about that. …[40]
[40] Affidavit of Catherine Jane Farrell filed on 16 November 2023, Annexure CJF-3, page 36.
It is submitted that this was a reference to an incident which happened less than a month before the Tribunal hearing, that it referred to an attack on the local lashkar that the applicant had been a member of, and that it was perpetrated by the Taliban. The applicant provided further information about this incident in his post-hearing submission, including that this incident is alleged to have occurred four hundred meters from the applicant’s home.
It is submitted that an absence of any reference to this evidence in the Tribunal’s reasons means that an inference can be drawn that the Tribunal did not consider this evidence or that it was overlooked or ignored. The applicant further submits that this inference is open when one considers that the Tribunal expressly refers to an incident where a lashkar member was killed in Swat in February 2020 but made no reference to the incident in March 2021.
I do not accept this submission. First, as stated, the Tribunal expressly referred to the fact that it had before it the applicant’s post-hearing submissions dated 23 April 2021, in addition to other relevant material provided by the applicant at paragraphs [9] and [10]. At paragraph [29], the Tribunal refers to the fact that the applicant gave oral evidence before it at a hearing on 16 April 2021.
This, together with the fact that the Tribunal acknowledged that country information stated that there had been one violent incident in Swat in 2021 – at paragraph [114] of the Tribunal’s reasons – leads to the conclusion that an inference cannot reasonably be drawn that the Tribunal did not have regard to or consider this evidence.
The applicant submits that the mere reference to the Swat incident in paragraph [114] of the Tribunal’s reasons does not satisfy the requisite standard to which the Tribunal is required to engage with a claim made by the applicant. The reference in paragraph [114] to an incident in the Swat is evidence that the Tribunal was aware of the country information the applicant relied upon. However, the level of engagement required with that claim depended in part on the view that the Tribunal had formed about the applicant’s involvement with the ANP and lashkar. Had the Tribunal concluded that the applicant was in fact a senior member of the ANP or significantly involved at all, then there might be some merit to the applicant’s claim that it ought to have given further consideration to the fact that there was more recent evidence or risks to persons with such a profile. But having concluded that the applicant did not have such a profile, it was not necessary to do so in order to discharge its statutory task.
When one goes back to the conclusion in the applicant’s post-hearing submission, it is clear that the matters identified in that submission were put forward in support of the proposition that the applicant faced a risk of harm due to his (or his family’s) opposition to the Taliban and his political profile. Having concluded that he did not have such a profile, it was not necessary for the Tribunal to make findings about whether the alleged incidents referred to in the country information provided by the applicant ought be accepted or rejected.
UK Home Office report
The applicant further claims that at the Tribunal hearing, the Tribunal had put to the applicant certain information from the UK Home Office for comment. The Tribunal then permitted the applicant to file a post-hearing submission which responded to the Tribunal’s query. Relevantly, in that response, the applicant’s representative submitted that the information in the UK Home Office report inferred that there would be an increase in terrorist violence in the lead up to the 2023 elections therefore creating a real risk of harm to the applicant in the reasonably foreseeable future if he were to return to Pakistan.
Again, the applicant takes issue with the Tribunal’s failure to engage with this submission in its reasons.
The Minister concedes that the Tribunal did not expressly refer to the applicant’s post-hearing submission in this regard in its reasons, but says that the reason for not doing so was that it was not relevant to the facts as found by the Tribunal. It was submitted that the UK Home Office report and the applicant’s response, related to whether ‘political parties and their members have been targeted by terrorist groups, particularly in the lead up to elections’. It was in this context that in the post-hearing submission, the applicant’s representative said:
… ‘Targeted terrorist attacks against political leaders and party workers further decreased in 2019 compared to 2018’ may be read in that context. If targeting occurs particularly in the lead up to elections, an inference is that there may be increased targeting in the lead up to the 2023 elections, which is in the reasonably foreseeable future.[41]
[41] Court book at page 363.
The applicant’s response to this submission is that the Tribunal failed to engage with the cyclical nature of the violence. This is a somewhat circular argument. Whilst it can be accepted that the submission is that there is a ramping up of the violence in the lead up to an election, the violence (which is ramped up) remains violence directed to persons with a particular profile. Having found that the applicant did not hold that profile, it was open to the Tribunal not to proceed to deal with the cyclical nature of the violence.
In this case, the Tribunal found that the applicant would not be targeted due to any involvement with the ANP. Rather the Tribunal found that the applicant’s involvement with the ANP was minimal and that he had not been involved with the ANP since May 2011. Moreover, at paragraph [102], the Tribunal, having regard to his historical involvement, did not accept that if the applicant returned to Pakistan that he would take an active role in the ANP in the foreseeable future.
Given these findings, the Tribunal did not need to expressly engage with the submission that the applicant may face a risk of harm in the lead up to the 2023 election in circumstances where that risk of harm, on the applicant’s own submission, was limited to political leaders and party workers and the applicant was found to be neither.
The Minister’s submissions in this regard are persuasive and I accept them. No error emerges from the Tribunal’s handling of this issue.
Regrouping of terrorists and militants in the applicant’s home area
The applicant further submits that the Tribunal failed to consider the applicant’s post-hearing submission that militants and terrorists were regrouping in Swat. The applicant submitted that there was specific evidence of violence against lashkar members and ANP members and that this posed a real risk of harm to the applicant if he were to return in the reasonably foreseeable future, notwithstanding any past reduction in levels of violence.
The applicant says that the failure of the Tribunal to engage with this submission discloses a jurisdictional error.
It is submitted for the Minister that the country information this aspect of ground 3 relies upon is effectively two paragraphs in two separate news items and as such this does not amount to a ‘substantial, clearly articulated claim’ that the Tribunal was required to engage with.
Moreover, it is submitted for the Minister that it is well settled that the choice of and weight to be given to country information is ultimately a matter for the Tribunal. And in this case, the Tribunal was entitled to prefer the more recent evidence about actual violence in the region in 2021, without having to expressly deal with the second-hand reports of ‘regrouping’ that is said to have occurred in 2020.
In the applicant’s post-hearing submission, the applicant’s representative said:
Several other sources confirm a regrouping of terrorists in Swat. The Express Tribune, A decade later, militancy rearing its head in Swat, 20 May 2020, states that:
Militants trained in Afghanistan are reorganising in Swat – over a decade after they fled to the neighbouring country when security forces launched Operation Rah-e-Rast in the scenic valley in the year 2009 to end the insurgency there, the Khyber-Pakhtunkhwa police chief said on Tuesday.
Sayhoon News, ANP demands legislation for recovery of missing persons, 11 February 2021, states that:
The Awami National Party (ANP) leader Amire Haider Khan Hoti demanded the government to bring the missing persons to justice if they have committed any crime.
…
‘Regrouping of terrorist’
Hoti said that in tribal districts, Buner and Swat there are reports of militant regroupings. Hoti said that kidnapping for ransom, target killing, and extortion has increased. He said that the state has to divert its attention to this issue as if the terrorist regrouped again, it will have unprecedented repercussions for the country.
(Emphasis in original)
When read in the context of how the applicant’s claims were put, namely that he feared harm because of his opposition to the Taliban and political profile (or that of his family), there is no error in the way in which the Tribunal dealt with this aspect of his submissions. As stated, the Tribunal concluded that the applicant no longer had an active involvement in the ANP nor that he had a significant involvement in the lashkar and consequently, was not satisfied that the applicant faced a risk of harm in the reasonably foreseeable future on these grounds if he were to return to Pakistan.[42] Moreover, at paragraph [94], the Tribunal referred to the applicant’s ‘recent’ submissions which referred to ‘updated information on Swat, and attacks by the TTP in 2018, 2020 and 2021’.
[42] See for example Tribunal decision record dated 23 February 2022 at paragraphs [90] to [92].
The Tribunal also refers to the country information at paragraph [95] which cites an increase in militant activity in the last year. Similarly at paragraph [108], the Tribunal refers to ‘a modest increase in violent attacks’ in 2020.
Whilst there is no specific reference to ‘regrouping in the applicant’s home area’ in Swat, in my view, read as a whole and fairly, without an eye keenly attuned to error, an inference ought not be drawn that the Tribunal did not consider the information provided by the applicant’s representative about these matters.
Ultimately, the Tribunal is not required to refer to every piece of evidence and which country information it relies upon, and the weight to be given to that country information is a matter for the Tribunal.
No error is disclosed from this aspect of ground 3.
Recent suicide attack
Finally, the applicant claims that the Tribunal failed to consider a further submission made by the applicant’s representative on 20 December 2021 about a suicide attack on an ANP vehicle on 19 December 2021.
For similar reasons to those at paragraph [120] to [121] above, the absence of any specific reference to this material does not lead to the inevitable conclusion that it was not considered. First, as stated, it is not necessary for the Tribunal to refer to every piece of evidence before it. But in any event, having concluded that the applicant did not have the necessary profile to be at risk and having concluded that the applicant had not been involved in the ANP since 2011 and would not renew his engagement with the ANP upon return, it was not necessary for the Tribunal to expressly deal with this evidence in its reasons.
In addition, this country information was consistent with country information to which the Tribunal had referred which provided that there was some risk to ANP members and senior leaders within the ANP. The Tribunal concluded that the applicant was neither of those things.
In circumstances where the Tribunal has given comprehensive reasons for its conclusions, made reference to the information before it, which when read fairly would include this updated country information, it is not open in my view to infer that the Tribunal ignored or overlooked this material, but rather that it concluded that it was not material to the factual findings that it had made.
No error is disclosed in the manner in which the Tribunal dealt with this information.
For each of these reasons, ground 3 is not made out.
CONCLUSION
As none of the applicant’s grounds of review are established, the applicant’s application is dismissed.
In its response, the first respondent seeks costs in a fixed amount. In circumstances where the applicant has not established jurisdictional error, it is appropriate that the applicant be ordered to pay the first respondent’s costs in a sum to be fixed if not agreed.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 7 June 2024
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