BOR15 v Minister for Immigration

[2017] FCCA 152

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOR15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 152

Catchwords:
MIGRATION – Application for protection visa – whether the Tribunal failed to consider critical evidence contained in recent country information provided to the Tribunal in support of the Applicant’s claim to fear persecution and/or harm from ISIS – whether the Tribunal erred in its findings in relation to the Applicant’s claim regarding generalised violence – held that the Tribunal failed to consider critical evidence contained in recent country information provided in support of the Applicant’s claim to fear persecution and/or harm from ISIS, thereby failing to perform its statutory task and fell into jurisdictional error – held the Applicant did not make a claim to fear generalised violence – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(c),424(1)

Cases cited:

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant: BOR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1772 of 2015

Judgment of: Judge Jones

Hearing date: 21 September 2016

Date of Last Submission: 18 October 2016

Delivered at: Melbourne

Delivered on: 2 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Wood

Solicitors for the Applicant: Fragomen Australia

Counsel for the Respondents: Ms Symons

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 17 July 2015.

2. A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the Applicant for review of the delegate of the First Respondent’s decision.

3. The First Respondent pay the Applicant’s costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1772 of 2015

BOR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background 

1. This is an application for judicial review of a decision of the Second Respondent (“the Tribunal”) dated 17 July 2015, affirming a decision made by a delegate of the First Respondent (“the Minister”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).

2. The Applicant is a Pakistani national. He comes from Shalozan village, Parachinar, in Kurram Agency, in the Federally Administered Tribunal Areas (“FATA”) of Pakistan. He is a Shia Muslim, of Pashtun ethnicity, and a member of the Turi Bangash tribe. He lived in Parachinar until 2007 when he left to work in Abu Dhabi, United Arab Emirates, until March 2012. He returned to Pakistan on a number of occasions during the period he worked in Abu Dhabi. He arrived in Australia on 22 July 2012. On 22 November 2012, the Applicant applied for the visa.

3. His claims to invoke Australia’s protection obligations, as set out in his statutory declaration attached to his application for the visa (CB 37-40) and in a submission made on his behalf, dated 3 July 2015, to the Tribunal (CB 197-244), were that he feared persecution from the Taliban. The basis for his fear of persecution was generally articulated as his religion and membership of a social group; as a returnee from a Western country and as a member of the Turi tribe and as a Shia from the Kurram Agency. It appears that he claimed that he would suffer significant harm because of his claims to fear persecution (CB 241).

4. At the Tribunal hearing held on 9 July 2015, the Applicant raised further claims (he says reflecting developments in his home region) that ISIS or ISIL or Daish (used interchangeably) were getting close to his home town of Parachinar and had threatened the people of Parachinar (CB 287 at [42]). Further submissions, in the form of various country information, were made by the Applicant’s representative on his behalf, including information in relation to this claim (CB 249-268).

5. It is the Tribunal’s reasoning in relation to the Applicant’s claim made at the Tribunal hearing with respect to ISIS (in particular, the Tribunal’s consideration of the country information provided by the Applicant’s representative in the post-hearing submission), which is the subject of the first ground of judicial review. In the course of argument in relation to this ground, an issue arose; namely, the scope and effect of

   
   

   sub-s.424(1) of the Migration Act 1958 (Cth) (“the Act”) on the Tribunal’s review obligations. At the completion of the judicial review hearing, Orders were made for further written submissions in relation to this issue. Submissions were filed by the Applicant and the Minister in respect of this issue.

6. The second ground of judicial review concerns the Tribunal’s findings regarding the impact of sectarian and generalised violence, including the application of the (then) sub-s.36(2B)(c) of the Act. At the judicial review hearing, the Applicant sought, and was granted, leave to file a Further Amended Application. The further amendment was the inclusion of an additional particular to ground two. At the completion of the judicial review hearing, Orders were made for further written submissions in relation to this additional particular. Submissions were filed by the Applicant and Minister in respect of this additional particular.

Tribunal Decision

1. The Tribunal rejected the Applicant’s claims to fear persecution and significant harm if returned to Pakistan (CB 288 at [47] and CB 289 at [54]-[55]).

2. With respect to the Applicant’s claim to fear persecution from ISIS, the Tribunal reasoned as follows (CB 287 at [42]):

   The applicant also claimed in the hearing that recent news, including Pakistan’s Dawn News, reported that the Daish people, which is ISIS, are also getting closer to Parachinar and they have threatened the people of Parachinar. In the submission received following the hearing, the applicant included a copy of the media report (which appears to be dated 9 November 2014) suggesting that a ‘secret information report’ sent by the provincial government in Balochistan to the federal government had claimed that between 10,000 and 12,000 followers from the Hangu and Kurram Agency tribal areas had been recruited by ISIS and that ISIS had asked elements of the TTP and the Lashkar-e-Jhangvi to join its ranks to attack military installations and government buildings in Khyber Pakhtunkhwa and also target the Shia community in Pakistan. However, the Tribunal also note [sic] that the report also states that ISIS’s presence has not been officially established so far and that a security expert described it as a perceived threat. The Tribunal does not accept on the evidence provided by the applicant that ISIS or Daish are getting close to Parachinar or that they will start targeting the people of Parachinar in the reasonably foreseeable future.

3. The Tribunal’s consideration of the Applicant’s claims regarding sectarian violence between Sunni and Shia  Muslims, and generalised violence in  Parachinar and Kurrum Agency, commences at [28] of the Tribunal decision record (CB 283).

4. The Tribunal considered various sources of country information including reports of the FATA Research Centre, Department of Foreign Affairs and Trade (“DFAT”) reports, United Nations High Commissioner for Refugees (“UNHCR”) reports and information on the South Asian Terrorism Portal (“SATP”). The Tribunal specifically noted that it had “carefully considered the independent information provided by the applicant’s adviser in the submission to the Tribunal regarding the situation in Parachinar and Kurram Agency” and identified the sources of the country information provided to it (CB 284 at [29]).

5. The Tribunal set out extracts from a DFAT report on Shias in Pakistani released in April 2015. In that extract (CB 285 at [33]), DFAT stated:

   4.37 Overall, DFAT assesses that there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas. However, the situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services.

   (footnotes omitted)

6. At [36] (CB 286), the Tribunal stated:

   The Tribunal is mindful that while there has been a reported decline in the levels of violence in the Kurram Agency in recent years, DFAT has advised that there continues to be sectarian and terrorist attacks and that the security situation remains volatile due to ongoing insurgency operations by Pakistani security services. DFAT also assessed that there is a high level of generalised violence and a moderate risk of sectarian violence in some areas of FATA. The Tribunal notes according to FATA research Centre’s security report for the first quarter of 2015, violence as a consequence of persistent conflict was observed in all seven agencies of FATA including Kurram Agency and recorded militant activities in the area shows that the agency still faces the menace of terrorism.

7. The Tribunal accepted that there continues to be ongoing generalised and sectarian violence in FATA, including in Upper Kurram Agency, where the Applicant’s village is located. However on the range of sources that were consulted, the Tribunal found that the situation has changed significantly as compared to previous years, and that there has been an improvement as a result of stabilisation in the region (CB 286 at [37]). The Tribunal further stated that, while it appreciated that there will continue to be instability as a result of the authorities’ ongoing struggle with terrorist, militant and sectarian groups, it did not accept on the evidence before it that “the applicant faces a real chance of serious harm as a result of counterinsurgency operations in FATA more generally” (CB 286 at [38]).  In making this finding, it relied on information cited in a report of the UNHCR which reviewed the experience of those who had returned to the region in Upper Kurram (CB 286 at [38]).

8. The Tribunal then made a finding, which the Applicant alleges in his second ground of judicial review discloses jurisdictional error on the part of the Tribunal. This finding is expressed as follows (CB 286-287 at [39]):

   Similarly, the Tribunal accepts DFAT’s assessment that there is a high degree of generalised violence in the FATA, however the Tribunal finds the applicant would not be in a position different from the general population of FATA, that is, that the violence faced by the applicant is the same as that faced by all members of the population. The Tribunal finds that such generalised violence is not harm involving “systematic and discriminatory conduct” towards him but indiscriminate violence which may be faced by all members of the population. Although the Tribunal accepts that there is some level of risk to the applicant in the context of generalised violence, the Tribunal finds that this risk is remote and does not accept that there is a real chance he would be targeted for harm based upon any Convention characteristics, including the applicant’s Shia religion, his Bangash ethnicity or his membership of a particular social group of Turi (or Bangash) Shias.

9. The Tribunal went on to note that it had considered the Applicant’s evidence in the hearing that, three or four days prior to the hearing, there was an attack on army forces on the road to Parachinar, and that bombs explode on the road, killing people, on a daily basis. It noted, however, that at the hearing it had put to the Applicant that DFAT has reported that the main road between Thal and Parachinar is open, is frequently used by civilian cars and that federal security forces maintain armed checkpoints on the road (CB 287 at [40]).

10. The Tribunal noted the following claims of the Applicant at the hearing (CB 287 at [41]):

    The applicant also claimed that the Taliban have surrounded them so they are not safe at all. He claimed while there may be peace for 10-20 days suddenly they will attack or start insurgency daily. Following the hearing, the Tribunal received several articles including an article from the Tribune dated 18 February 2015, Terror in Islamabad: Gun and suicide attack leaves 3 dead, reporting on a suicide bombing in Lahore; an article purportedly from the Global Research Centre dated 3 February 2015, Terrorist Killings directed against Pakistan Shia Population which reported an explosion inside a central Imambargah Shia mosque in Shikarpur district in Sindh province and discussed the history of extremism in Pakistan; an article from ABC news dated 30 January 2015 reporting on the same bomb blast in Shikarpur; and an article purportedly from The Washington Post dated 15 January 2014, Sectarian killings soar in Pakistan, raising fears of regional spillover which discussed the violence against Shias and other minorities which had spread to the major cities and was increasingly targeting the country’s professional classes and reported that Pakistan’s death toll from sectarian violence was the highest in 2013, since the South Asia Terrorism Portal started tracking the statistics in 1989. The Tribunal has considered this information, which it notes does not specifically refer to the situation in FATA or to the applicant’s home area in Upper Kurram and therefore places more weight on the evidence discussed above, regarding the improved security situation in FATA since 2014 and stabilisation of the area over a protracted period of time as a result of counter-insurgency operations in the region, resulting in the return of IDP’s to Upper Kurram.

11. The Tribunal concluded that (CB 288 at [43]):

    The Tribunal finds that the overall country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards, and when this is considered together with the applicant’s profile as an ordinary Bangash/Turi Shia and the fact that the applicant’s family have remained in the area over the last seven or so years without experiencing any serious harm, the Tribunal finds the chance of the applicant facing serious harm from the Taliban either for reasons of his Shia religion, his Bangash ethnicity or membership of a particular social group of Turi Shias or Shias from Kurram Agency or otherwise persecuted in the context of sectarian attacks in remote. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm for this reason.

12. With respect to the Applicant’s claims to fear significant harm pursuant to the complementary protection provisions because of sectarian, militant and generalised violence, the Tribunal said (CB 289 at [52]):

    While the Tribunal accepts that there may continue to be some sectarian, militant and generalised violence in the FATA generally, based upon all the country information before it, the Tribunal does not accept that the applicant faces a real risk of significant harm because of sectarian, militant or generalised violence including in his home area in Upper Kurram…

Judicial Review

Ground one

1. Ground one of this judicial review application is as follows:

   1. The Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing to lawfully consider (including by giving proper, genuine and realistic consideration to the merits of) a claim made by the applicant or, alternatively, critical evidence provided by the applicant in support of a claim.

   Particulars

   a. The applicant made a claim to fear harm from ISIS, or ISIL or Daish (however named) in his home area of Pakistan.

   b. The applicant provided various items of country information in support of that claim. Relevantly, the earlier items of country information (dated 9 November 2014) referred to an expert, Dr Ejaz Hussain (Dr Hussain), stating that “Pakistan faces a perceived threat from IS but it can mature into a real threat if they succeed in aligning themselves with the splinter groups of mainstream militant groups, including the TPP”. Relevantly, the later items of country information (dated 31 January and 3 February 2015) stated that the Jundallah, a “splinter ground of Tehreek-e-Taliban (TPP)” had “forged an alliance with its sister group ISIL after meeting a three-man delegation representing the group led by al Zubair al Kuwait”.

   c. The Tribunal purported to dismiss the applicant’s claims to fear harm from ISIS on the basis of Dr Hussain’s statement that IS “can mature into a real threat if they succeed in aligning themselves with the splinter groups of mainstream militant groups, including the TPP”.

   d. However, the Tribunal failed to consider, or even refer to, the later country information that suggested that the only condition identified by Dr Hussain for ISIS “maturing into a real threat” had now been satisfied.

   e. The Tribunal thereby made a jurisdictional error.

   (emphasis in original)

2. The Applicant submits that it is well-established that the Tribunal will make a jurisdictional error if it fails to consider significant evidence provided by an Applicant in support of a claim. Reliance is placed on the decision in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (“SZRKT”) where at [111], Robertson J observed that there is “no clear distinction in each case between claims and evidence”. His Honour explained that, while “the distinction between claims and evidence provides a tool of analysis”, it is “not the discrimen itself”. Rather, “[t]he fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”.

3. As correctly submitted by the Applicant, this analysis of Robertson J in SZRKT was approved by the Full Court of the Federal Court in Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431 (“MZYTS”) at [28]. The Applicant submits that in MZYTS, the Full Court also emphasised the significance of a failure by the Tribunal to consider the most recent country information provided by an Applicant in support of his or her claims to fear harm. Thus, at [35], the Full Court noted that the “central part of the predictive or speculative task”, which is reposed in the Tribunal in determining a claim to satisfy the criteria for a protection visa, “can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there”. In that context, the Full Court noted (MZYTS at [36]) that:

   … to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.

4. The Applicant further relies on the Full Court’s statement in MZYTS that, a Tribunal could not “lawfully undertake” its statutory task (MZYTS at [38]):

   … without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in [the relevant country] for him if he were to be returned there.

   The obligation on the Tribunal on review is to “evaluat[e] … all of the pertinent material put forward by the visa applicant in support of the specific claim … including the most recent material” (MZYTS at [38]).

5. In MZYTS, the Tribunal’s error was demonstrable from the fact that the Tribunal’s reasons “suggest[ed] no consciousness of the contents of post-hearing materials (as opposed to their existence)” although the effect of those materials appeared to support the Applicant’s claims (at [41]). The absence of any evaluation of that material “can only signify a constructive failure to exercise jurisdiction” (at [44]). The Applicant notes that the Full Court expressly rejected the Minister’s argument that the Tribunal must simply have “preferred” different information (at [50]):

   We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

1. In this case, the Applicant submits that the Tribunal failed to consider, in any real or active way, the latest country information provided by the Applicant with respect to ISIS: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [63], although the Applicant concedes that this decision concerned the Tribunal’s requirement to satisfy itself with respect to Regulations specified in the Migration Regulations 1994 (Cth), and not its obligations to consider an Applicant’s claims for protection under the Act.

2. The basis upon which the Applicant submits the Tribunal failed to engage in an active, intellectual consideration of relevant and crucial information, is articulated as follows.

3. The Applicant argues, correctly, that it is self-evident from the Tribunal’s decision record that the Tribunal was aware of the country information which the Applicant relied on for the purpose of his claim to fear persecution from ISIS in his home region. This country information was contained in the post-hearing submissions provided by the Applicant’s representative on his behalf.

4. The Applicant submits that the country information relevant to the Applicant’s claim was contained in four reports.

5. The first report identified by the Applicant is dated 9 November 2014 (CB 250). It refers to a “secret information report”, dated 31 October 2014, which states that “IS has claimed to have recruited a massive 10 to 12,000 followers from the Hangu and Kurram Agency tribal areas”, and that ISIS “plans to target members of the minority Shia community” (CB 251).

6. The first report also notes that ISIS presence “has not been officially established so far”. The Applicant notes that the report then cites a “security expert”, Dr Ejaz Hussain (“Dr Hussain”), as saying that “Pakistan faces a perceived threat from the IS but it can mature into a real threat if they succeed in aligning themselves with the splinter groups of mainstream militant groups, including the TTP” (CB 252). The Applicant submits that, on a plain reading of this report, the expert opinion of Dr Hussain is that, the only condition required for ISIS to emerge from a perceived threat to a real threat, is the formation of a alliance with splinter groups, including the TTP.   

7. The Applicant notes that, at [42] of the Tribunal’s decision record (extracted in full at [8] above), it is evident that the Tribunal is referring to the first report. The Tribunal refers to aspects of the first report, which indicate that ISIS is approaching militant groups to join in targeting, amongst other things, the Shia community in Pakistan. However, the Tribunal notes that ISIS’s presence has not been established to date, and that a security expert (clearly a reference to Dr Hussain) described ISIS as a “perceived threat”. This is, of course, a correct summation of the first report. However, as the Applicant points out, no reference is made by the Tribunal to Dr Hussain’s opinion regarding the basis upon which ISIS “can mature into a real threat”.

8. The second report that the Applicant referred to, which was also dated 9 November 2014, was consistent with the first report (CB 257). It stated that the provincial government of Balochistan has “conveyed a confidential report to the federal government and law enforcement agencies warning of increased footprints of militant organisation Islamic State (IS), also known by the Arabic acronym Daish, in Pakistan”. As Counsel for the Applicant concedes, the second report merely confirms the existence of the “secret report” referred to in the first report.

9. The third report, which was dated 31 January 2015, described the “latest attack on Shias in Pakistan” and stated that (CB 264):

   Jundullah [sic], the Takfiri terror group (which does not accept Shias as Muslim), which supports the ISIL, is associated with Tehrik-i-Taliban Pakistan (which itself, at the end of 2014, attacked a school in Peshawar, killing hundreds of children), and has carried out a number of terror attacks in Iran, claimed responsibility for the attack on a Shia mosque located in Shikarpur, Sindh.

10. The fourth report, which was dated 3 February 2015, refers to an attack on a central Imambargah Shia mosque in Shikarpur, as follows (CB 260):

    The Takfiri group Jundallah, a splinter group of Tehreek-e-Taliban Pakistan (TTP) has claimed responsibility for the carnage.

    ‘Our target was the Shia mosque … They are our enemies,’ said Jundallah spokesman Fahad Marwat.

    Intimately affiliated with the ISIL in carrying out their brutalities including beheading and blinding their victims, Jundallah forged an alliance with its sister group ISIL after meeting a three-man delegation representing the group led by al Zubair al Kuwaiti.

    ‘They (Islamic State) are our brothers, whatever plan they have we will support them,’ Jundallah spokesperson Fahad Marwat said.

11. The Applicant submits that these later two articles contain probative evidence that an alliance between ISIS and Jundallah, a splinter ground of the TPP, had been formed. Given the opinion of Dr Hussain that this was a condition which can have the effect of changing a perceived threat into a real threat that, amongst other things, Shia Muslims would be targeted, it was therefore evidence with which the Tribunal was obliged to actively engage in deciding whether it was satisfied that there was a real chance, or real risk, that the Applicant would be targeted and suffer persecution or significant harm as a Shia Muslim, from ISIS in Parachinar.

12. The Minister accepts that the Tribunal’s review function requires it to consider all of the integers of the claims expressly put by the Applicant, as well as those which “squarely” arise on the material put by the Applicant before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at [55] to [58]. The Minister contends, however, that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an Applicant in its written reasons WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“WAEE” ) at [45] and [46] .

13. The Minister correctly submits that the first step is to identify the claim or integer of claim made by the Applicant in support of his application for a protection visa. The Minister argues that the claim made by the Applicant was that ISIS is getting close to Parachinar, and has threatened the people of Parachinar.

14. In the post-hearing submission, the Minister notes that the Applicant’s migration agent failed to provide any summary of the country information and its relevance to the Applicant’s claims. This is correct; the migration agent simply attached various sources of country information. In any event, the Minister submits that, even when regard is had to the totality of the country information, the decision of the Tribunal discloses that it had considered the country information provided, and that the ultimate conclusion was open to it in the context of the evidence before it. The Minister submits that the Tribunal’s conclusion that ISIS did not pose a threat in the Applicant’s home town of Parachinar, was open to it for the following reasons ([22]-[23] of the Minister’s written submissions):

    (a)     the first and second reports suggested that ISIS had recruited followers from the Hangu and Kurram Agency tribal areas but had not as yet emerged as a real, as distinct from a perceived, threat.  The reports did acknowledge that maturation to a real threat could occur if ISIS was able to align itself with splinter groups of mainstream militant groups;

    (b)     the third and fourth reports suggested that a splinter group of Tehreek-e-Taliban, which supported ISIL, had perpetrated an attack against a Shia mosque, located in the Shikarpur district of the Sindhu province of Pakistan.

    23. However, contrary to what is suggested by the applicant, none of the material before the Tribunal, considered independently or as a whole, suggested in relation to the applicant’s home area of Parachinar, that ISIS (through the agency of a splinter group or in its own right) had perpetrated attacks against the Shia population (or directed at the population more generally), had evolved in status from a perceived to a genuine and immediate (or at least reasonably foreseeable) threat or, as claimed by the applicant was getting close to Parachinar or would start targeting the people of Parachinar in the reasonably foreseeable future.

15. The Minister further argues that the reliance by the Applicant on MZYTS is misplaced for the reason that, in that case, the Tribunal had failed to engage at all with crucial country information provided

    
    

    post-hearing. Further, the Minister argues that it is evident when regard is had both to paragraphs [41] and [42] of the Tribunal’s decision record in these proceedings, that the Tribunal did consider the country information said to bear on the Applicant’s claim regarding the threat from ISIS. The Minister’s arguments in written submissions on this point are set out in full below (at [25]):

    (a)     at [42] – the Tribunal found that it did “not accept on the evidence provided by the applicant that ISIS or Daish are getting close to Parachinar or that they will start targeting the people of Parachinar in the reasonably foreseeable future” – which permits an inference that the Tribunal in making this finding had considered all of the material provided by the applicant on 14 July 2015, including the third report and the fourth report;    

    (b)     at [41] – the Tribunal referred to having received “several articles” after the hearing (this being a reference to the material provided to the Tribunal on 14 July 2015) and referred specifically to, and demonstrated a familiarity with, the content of the fourth report, which as noted above at [22(b)] reported on the same act of violence against a Shia mosque as identified in the third report; and

    (c) also at [41] – noted (correctly) in relation to the fourth report (and other articles identified by the Tribunal in that paragraph), that such information did “not specifically refer to the situation in FATA or to the applicant’s home area in Upper Kurram” and as such, the Tribunal chose to place “more weight on the evidence….regarding the improved security situation in FATA since 2014 and stabilisation of the area over a protracted period of time…”.

    (footnotes omitted, emphasis in original)

Consideration

1. I am satisfied that the Applicant’s claim made during the course of the Tribunal hearing was that, ISIS was getting close to his home town of Parachinar, and had threatened the people of Parachinar. This was identified by the Tribunal in its decision record (CB 287 at [42]).

2. It is also clear that the Tribunal understood that the country information provided by the Applicant’s migration agent, on his behalf, in a

   
   

   post-hearing submission, was provided to support this claim. I am further satisfied that the Tribunal considered one source of country information, which is dated 9 November 2014 (extracts from which are at [27]-[28] above). The Tribunal noted the recruitment by ISIS of large numbers of followers, including from the Kurram Agency tribal group, and the approaches by ISIS to various splinter groups of militant groups to form alliances. It noted the intention of ISIS to target members of the minority Shia community. It is evident from the reasoning of the Tribunal that it gave weight to, or at least regarded the opinion of the security expert (Dr Hussain), that the threat was a “perceived threat”, as relevant and significant.

3. Whilst it is clear that it is not necessary for a Tribunal to refer to every piece of evidence and every contention made by an Applicant in its decision record, this is not so where the evidence or contention which, if accepted, might have led the Tribunal to make a different finding of fact, and ultimately find that the Applicant had a well-founded fear of persecution for a Convention reason (WAEE at [46]).

4. In my opinion, the evidence contained in the country information (dated 3 February 2015, referred to as the fourth report) might well have formed the basis for the Tribunal to conclude that the perceived threat had matured into a real threat, and was evidence which the Tribunal was obliged to expressly consider in its reasoning. The Tribunal regarded the opinion of Dr Hussain in its reasoning as relevant and significant. It could not be said that the Tribunal did not accept Dr Hussain’s further opinion regarding the circumstances in which this perceived threat may become a real threat. I agree with the Applicant that there was relevant and probative evidence that was contained in the most recent country information (dated 3 February 2015); namely, that an alliance had been formed between ISIS and a splinter group of the militant group. Further, the evidence was that the establishment of this alliance post-dated the opinion of the security expert (Dr Hussain).

5. I do not accept the Minister’s submission that the fact that the country information concerned the general situation in Pakistan provided no support for the Applicant’s claim about ISIS threatening the people of Parachinar. Such a submission overlooks the fact that the population in Parachinar is dominated by Shia Muslims and the country information, recorded by the Tribunal, was that ISIS intended to target the Shia community. This is not to suggest that, had the Tribunal actively considered the evidence, it would have reached, or could only have reached the conclusion that the perceived threat had matured into a real threat by ISIS. Nor is it suggested that the Tribunal would have concluded that ISIS had or would start targeting the people of Parachinar in the reasonably foreseeable future. This was obviously a matter for the Tribunal to decide. However, in my opinion, it was probative evidence relevant to the Tribunal’s decision-making function on review, which was clearly overlooked. The Tribunal’s reasoning discloses that it had regard to the country information regarding the threat of ISIS to the Shia community. To observe, in its reasoning, that a security expert opined that the threat was a perceived threat, and then to completely ignore evidence that might well have warranted a conclusion it had turned into a real threat, in my view, discloses that the Tribunal failed to give active, real and intelligent consideration to the most recent country information before it.

6. The Minister’s argument at [23] of his written submissions (extracted at [36] above) is an argument which, in reality, invites the Court to intrude into a merits review.

7. I do not find the Minister’s reliance on the Tribunal’s reasoning at [41] of its decision record to support the argument that the Tribunal in fact considered (presumably, actively and intelligently) all of the evidence in relation to the Applicant’s claim to fear threats from ISIS in his home town of Parachinar, convincing. It is evident that the Tribunal was specifically addressing itself at [41] of the Tribunal decision record to the Applicant's claim to fear persecution from the Taliban. Secondly, the articles or country information the Tribunal identifies at [41] of the decision record does not include the fourth and critical report dated 3 February 2015 which is titled, “Terrorist Killings Directed against Pakistan’s Shia Population”. Thirdly, the Minister relies on [41] of the decision record for the proposition that the Tribunal had already dealt with the country information and found that it did not relate to the circumstances in the Applicant’s region. The Minister also relies on [41] of the decision record for the proposition that the Tribunal had decided that the country information did not assist the Applicant’s claims in considering whether to fear threats from ISIS in his home town, Parachinar. In my view, this is misconceived because the Tribunal’s finding that this information does not specifically address the situation in FATA is clearly made in the context of the Tribunal’s consideration of sectarian violence, based on its analysis of various sources of country information (see extracts at [9]-[16] above).

8. I find, for the reasons set out above, that the Tribunal failed to give real and active consideration to evidence that was critical to the Applicant’s claim that ISIS would target the people (Shia Muslims) of Parachinar, and for that reason he feared persecution of significant harm. Consequently, I find that the Tribunal failed to perform its statutory function on review and thereby engaged in jurisdictional error.

9. An issue arose during the course of the hearing, when Counsel for the Applicant raised, during the reply submission, new arguments about the scope and effect of s.424 of the Act on the Tribunal’s review obligations. Section 424 of the Act relevantly provides:

   (1)  In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2)  Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

10. As noted earlier, given that this issue was raised by the Applicant without prior notice to the First Respondent, Orders were made for both the Applicant and First Respondent to file written submissions. From the submissions, the dispute between the parties is the extent to which this section obliges the Tribunal to have regard to that information in making its decision, in the sense that a failure to do so gives rise to jurisdictional error. Given my decision in relation to ground one, I have found an unnecessary to deal with this argument.

Ground Two

1. Ground two of the Applicant's grounds of judicial review is as follows:

   2. The Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing to lawfully consider (including by giving proper, genuine and realistic consideration to the merits of) a claim made by the applicant or, alternatively, critical evidence provided by the applicant in support of a claim. Alternatively, the Tribunal made a jurisdictional error by misdirecting itself at law as to the operation of the deeming provision in s 36(2B)(c) of the Act.

   Particulars

   a. The applicant claimed to fear farm from violence in the applicant’s home area.

   b. The Tribunal accepted that there was a high degree of generalised violence in the Federally Administrated Tribal Areas (which encompassed the applicant’s home area).

   c. However, the Tribunal was not satisfied that the applicant satisfied the criteria for a protection visa because “generalised violence is not harm involving ‘systemic and discriminatory conduct’ towards him but indiscriminate violence which may be faced by all members of the population”.

   d. That conclusion involved two independent errors.

   e. First, the Tribunal ignored or misunderstood the fact that a “discriminatory” element might be supplied by the Pakistani authorities selectively failing to protect Shias from generalized violence. The applicant provided country [sic] to this effect. The Tribunal erred by failing to consider this claim or significant evidence, by misdirecting itself at law, or otherwise by constructively failing to exercise its jurisdiction in this respect.

   f. Secondly, the absence of any “discriminatory” element was irrelevant to the question of whether the applicant satisfied the alternative “complementary protection” criterion in s 36(2)(aa) of the Act. And, insofar as the Tribunal purported to invoke the operation of the deeming provision in s 36(2B)(c), the Tribunal erred because that section is only engaged where there is evidence that supports a finding that all members of “the country” (and not a particular city or province) face the same risk.

2. Counsel for the Applicant submitted that ground two is concerned with the Applicant’s claim to fear harm from generalised violence. Counsel for the Applicant submitted that, although the overwhelming focus of the Applicant’s claims and submissions were on his fear regarding sectarian violence, it is evident from the written submissions, including the country information provided to the Tribunal, that the Applicant  also made a claim to fear generalised violence. The Applicant identifies country information provided to the Tribunal (at CB 220, 221, 227 and 228) as evidence in support of his claim to fear generalised violence.

1. The Applicant’s arguments can be summarised as follows:

   a)the Tribunal erred when, having accepted there is a high degree of generalised violence in FATA, it held that this did not amount to harm involving systematic and discriminatory violence affecting all members of the population;

   b)it cannot be said that the generalised violence is not systematic and discriminatory, in circumstances where the state fails to protect all citizens from the violence. The Applicant claims that in relation to the generalised violence, the State fails to take action to protect its citizens who are Shia Muslims;

   c)the exclusion of generalised violence which is not systematic and discriminatory applies only in relation to claims of persecution on Convention grounds, and has no relevance to the consideration by the Tribunal of claims made under the complementary protection provisions of the Act. It is evident from the Tribunal’s reasoning at [52] of the Tribunal decision record that the Tribunal did not understand or make this distinction, and simply applied its reasoning under sub-s.36(2)(aa) of the Act; and

   d)the Tribunal’s finding at [39] of its decision record, that the risk to the Applicant in the context of generalised violence is remote, is irreconcilable with country information from DFAT (which the Tribunal accepted) that there was a high degree of generalised violence in FATA. The Applicant argues that this contradiction can be said to either amount to irrational reasoning or a misconstruction or misapplication of the “real chance test”.

2. The issue that must be determined, prior to considering the Applicant’s arguments, is whether in fact the Applicant made claim to fear harm from generalised violence. There can be no doubt that, in its survey of country information, the Tribunal identified the different findings, particularly from DFAT reports regarding sectarian and generalised violence in the Applicant’s home area of FATA.

3. However, the susceptibility of any findings made by the Tribunal about generalised violence and its effect on the Applicant, to jurisdictional error, can only arise where the Applicant expressly, or arising from the material before the Tribunal, made a claim to fear harm from generalised violence.

4. I am not satisfied that the Applicant made such a claim. There was no express claim made by the Applicant. The Applicant’s submissions rely on the fact that such a claim arose squarely from the written submissions, including the country information provided to the Tribunal by the migration agent on his behalf.

5. Before setting out extracts of country information, under the heading “Claims and Submission”, the Applicant’s written submission commences as follows (CB 227):

   … The following very recent report indicates that religious violence in Pakistan has continued to escalate. It is clear from the report that members of the Shia Muslim community in Pakistan cannot rely on the protection from the Pakistani authorities who are both unable and unwilling to provide protection to religious minorities.

6. The Applicant argues that the reference to Shia Muslims not being able to rely on protection from the State should not be read as being confined to protection against religious attacks. The Applicant notes that, following an extract of that report, “[t]he report continues on to clearly indicate that the Pakistan authorities stood by as attacks occurred on Shia religious ceremonies and places of worship” (CB 228).

7. I reject the Applicant’s submission that the reference to the inability of Shia Muslims to rely on the State to protect them from attacks is to be read as including a claim that the attacks are due to generalised violence. When one has regard to the country information which follows this submission (CB 229-241), it is clear that the country information deals with sectarian violence. Indeed, in reference to an article dated 18 February 2012 from the Daily News Pakistan, the submission states that, “[t]he following article signifies that authorities attempted to implement certain measures to curb sectarian violence has proved to be ineffective in light of very recent mass killings of many Shias”  (CB 235).

8. As I have found that the Applicant did not make a claim to fear harm because of generalised violence, it follows that I reject all arguments made by the Applicant support of ground two. Accordingly, I find no jurisdictional error arises because of ground two.

Conclusion

1. For the reasons set out in this judgment, I make Orders issuing a writ of certiorari quashing the Second Respondent’s decision and requiring the Second Respondent to determine the matter according to law. Orders will also be made that the First Respondent pay the Applicant’s costs of this judicial review.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 2 February 2017