BXY15 v Minister for Immigration
[2018] FCCA 2896
•16 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXY15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2896 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal misconstrued or misapplied s.36(2)(aa) or s.36(2B)(c) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(c) |
| Cases cited: BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150 |
| Applicant: | BXY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2589 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 22 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr Riley |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 19 August 2015.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 20 March 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2589 of 2015
| BXY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 August 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Pakistan, arrived in Australia on 22 July 2012. On 17 August 2012 he participated in an entry interview. He applied for protection in November 2012. His application was accompanied by a written statement of claims. He claimed to fear harm from the Taliban and/or associated groups because of his religion, ethnicity or membership of the particular social group of Pashtun Shias and because of his involvement in anti-Taliban protests.
The Applicant claimed he was a Pashtun Shia Muslim from Parachinar and a member of the Turi tribe. He claimed he had been targeted by Sunni extremists “like” the Taliban and Lashkar-e Jhangvi in Parachinar and elsewhere in Pakistan because of his religion.
The Applicant claimed that the Taliban targeted Pashtun Shias on the road between Peshawar and Parachinar by bombing, kidnapping and/or killing them. He claimed that this had affected his ability to receive a tertiary education. However he claimed that he had started to study at a college in Rawalpindi, but had withdrawn after a month because the Taliban began targeting him after he participated in political protests against them. He claimed that he had to follow and support the Islamic Student Organisation (ISO) as he did not feel safe in Islamabad (where he then moved) and needed their protection. He claimed that as a follower of the ISO he actively participated in many political protests against the Taliban. He claimed that because he had actively participated in so many protests he was afraid of retaliation by the Taliban and had to leave Pakistan.
He also claimed that as a Pashtun Shia he was unable to relocate within Pakistan.
The Applicant was invited to and attended an interview with a delegate of the First Respondent. The delegate recorded that at the interview the Applicant claimed that the reason he had withdrawn from study in Rawalpindi was because he became aware of the abduction and killing of Shia students. He then lived with his uncle in Islamabad and had private tutoring. He claimed that he continued to participate in protests organised by the ISO. He provided a photograph of an April 2011 protest outside Parliament House in Islamabad which had appeared in an online article in April 2011 and which featured him and other protesters.
On 19 March 2014, the delegate refused the application. The delegate accepted that the Applicant was a Pashtun Shia from Parachinar, that Shias in Parachinar were targeted by the Taliban and other extremist groups, and that there was a factual basis to the Applicant’s fear of being subjected to severe forms of sectarian violence in his home area of Parachinar in the Kurram Agency. However the delegate was of the view that it was reasonable to expect the Applicant to relocate to an area in Pakistan outside the Kurram Agency, such as Islamabad, where the likelihood of being persecuted for a claimed reason was remote and insubstantial and to remove the real risk of being significantly harmed.
The Applicant sought review by the Tribunal. His migration agent provided a pre-hearing written submission. The Applicant attended a Tribunal hearing. The only evidence before the court of what occurred in the hearing is the Tribunal’s account in its reasons for decision.
The Tribunal Decision
In its decision, the Tribunal set out the relevant law and summarised the Applicant’s claims and evidence.
The Tribunal stated that in considering the Applicant’s credibility, it had had regard to the fact that there were elements of his evidence at the hearing that contradicted materials provided on his behalf in his agent’s submission. However, while expressed in terms of credibility concerns, the Tribunal in fact accepted the Applicant’s evidence where there were such inconsistencies. Thus, the Tribunal referred to the fact that the Applicant’s agent had claimed that the Applicant had been the “only Shia” at the college he had attended and hence had been particularly marginalised. However the Applicant told the Tribunal that there were other Shia at the college, although that he was the only Parachinar Shia in his class. The Tribunal found that the agent’s submission was “not correct” and did not accept the agent’s claim that the Applicant was marginalised for being “the solitary Shia at his college” or his hostel.
Similarly, the Tribunal identified differences between the Applicant’s evidence about the ISO and his agent’s submission, in particular as to whether he became involved with the ISO when living in Parachinar (as the agent claimed) or thereafter (as the Applicant claimed). The Tribunal did not accept the agent’s claim that the Applicant was a member of the ISO in Parachinar.
The Tribunal also referred to the fact that the Applicant’s oral evidence was that he was a supporter, but never a member, of the ISO, whereas in his agent’s written submission it was claimed he was a member. The Tribunal again accepted the Applicant’s evidence in this respect and found that he was a supporter of the ISO, but never a member of the ISO as had been stated on his behalf by the agent.
However, the Tribunal had regard to what it described as a “significant discrepancy” between the Applicant’s written claim in his November 2012 statement that, after studying for one month, he had to leave his college (in Rawalpindi) because the Taliban had started targeting him and his evidence at the Tribunal hearing that he had never actually been targeted by the Taliban or by anyone else, but that there was the “possibility” he would be harmed because he was a Shia Turi from Parachinar. The Tribunal did not accept that the Applicant had ever been threatened or harmed by the Taliban or any insurgent group in Pakistan. It did not accept that the Applicant left his accommodation or his college because of any threat to his safety.
The Tribunal considered that the Applicant’s oral evidence that he was affected by Ramadan and found it difficult to “find answers” and was confused. It did not accept that any inconsistency in his evidence was for this reason. It was of the view that at the hearing the Applicant had demonstrated that he understood the questions and that he had provided direct responses. It considered that the Applicant was “capable and not affected by his period of fasting”.
In addressing the Applicant’s claims, the Tribunal took into account his acknowledgement at the hearing that he had “not personally ever been threatened or harmed by the Taliban or by any other insurgent group in Pakistan” and had never received any form of threat either personally or via phone call, text or letter and that his claim (and the reason he left his studies and Pakistan) was that he feared the possibility of future harm by the Taliban.
First the Tribunal addressed the Applicant’s claimed fear of harm for reason of his expression of an anti-Taliban political opinion said to arise from the fact he had lived in Islamabad (sic) as a student, his “subsequent” departure from his studies and his involvement in rallies protesting the situation in his home region, including being in the background of a photograph taken at a rally in Islamabad and published in 2011.
It appears that the Tribunal’s reference to the Applicant having lived in “Islamabad” as a student may be intended to be a reference to Rawalpindi, as this is where the Applicant claimed he had studied. The Tribunal referred to the Applicant’s oral explanation for leaving his Rawalpindi college after only a month. It recorded that he claimed that he had lived in a student hostel in Rawalpindi where there were people of different opinions and backgrounds and that he feared living in the hostel because some people there were targeted. However the Tribunal took into account the fact that, when asked, the Applicant had not identified anyone who had actually been harmed or targeted from his student hostel. It addressed the fact that later in the hearing the Applicant had claimed that he knew a person from his class who had been shot in Rawalpindi. The Tribunal noted that such a claim had been raised in the interview with the delegate, but did not accept that this was a “genuine incident” as, contrary to the Applicant’s claim, there was no record of such an incident in available country information. The Tribunal was also of the view that if the Applicant had been relatively close to such an incident of violence he would have raised it at the time of his visa application.
While the Applicant claimed that there had been a number of recorded incidents, the Tribunal did not accept that this was an accurate description of the situation in Islamabad and Rawalpindi. The Tribunal found that there were no reports of Shia being targeted and harmed at the locations and in the manner described by the Applicant. The Tribunal did not accept that a person the Applicant knew was shot in Rawalpindi as claimed. It was of the view that the Applicant had concocted this element of his claim to provide some explanation for his actions.
The Tribunal considered the Applicant’s claims about why he stopped studying, left the hostel and went to live with his uncle. Insofar as he claimed that this was because the Turi tribe were targeted, the Tribunal found that there was no evidence that members of the Turi tribe, Shias from Parachinar or Shias generally were being abducted, kidnapped or killed by any group at the time the Applicant stopped studying. It found that while the Applicant’s subjective fear of the possibility of harm from the Taliban or any other insurgent group may have contributed to his decision to stop studying, country information did not support the conclusion that he was at risk of harm. The Tribunal found that the Applicant’s claim in this respect was not made out.
The Tribunal had regard to country information about the April 2011 Islamabad protest at which the Applicant was photographed. It did not accept that the Applicant had an enhanced profile arising out of his attending protests and having his photograph taken, given that he had not been approached or threatened by any person in later protests and had not been targeted for harm by any group. Nor did it accept that the Taliban would use its “impressive intelligence network” to identify and find the Applicant in the future. The Tribunal had regard to the fact that while the Applicant had been an attendee at protest rallies and was in a photograph, he had no organisational role or responsibility in relation to the rallies.
The Tribunal also had regard to the fact that there were no reports of Shia or Shia from Parachinar or Pashtun Shia being targeted for harm by the Taliban for attending rallies (including the April 2011 protest), for political activism or for their backgrounds in 2010-2012.
The Tribunal did not accept that the Applicant had a real chance of serious harm or a real risk of significant harm arising from his past political activity of attending protests and being photographed once or that he was forced to change his behaviour for any reason associated with a real chance or a real risk of harm. It did not accept that the Applicant was forced to cease attending rallies because of any threat to him. It was of the view that he determined to stop protesting of his own volition in August 2011. The Tribunal also noted that the Applicant left Pakistan almost a year later from the city in which he had protested without involving himself in any organisation and that he had not claimed that he would involve himself in such protests in the future. The Tribunal did not consider that the Applicant would return to any protests about his home region on return to Pakistan. Having regard to the absence of past targeting and his minor role and activity in rallies, the Tribunal did not accept that the Applicant would be personally targeted by or of concern to the Taliban on return to his home region based on these past activities.
The Tribunal concluded that the Applicant did not face a real chance of serious harm or a real risk of significant harm “for this reason” arising from his involvement in rallies in Islamabad between 2010 and 2011 and any imputed political opinion arising from that activity.
The Tribunal also considered the Applicant’s claim that he would be targeted as a supporter of the ISO. It noted that his evidence was that he was not a member of the ISO, that his involvement had started in late October 2010 (not earlier as his agent had suggested) and that he had no official role or responsibility in the ISO, including at any event he had attended. Given the absence of information that ISO members, let alone supporters, had been targeted for harm and the fact that the Applicant himself had never been threatened in any way because of his involvement with ISO, the Tribunal found that this claim had “no basis in fact”. It concluded that the Applicant did not have a real chance of serious harm arising from his support for the ISO now or in the reasonably foreseeable future and hence that he did not have a well-founded fear of persecution for this reason.
In the absence of evidence that returnees to Pakistan had been targeted for harm because of their residence in Australia, the Tribunal also rejected the Applicant’s claim that he would be targeted or kidnapped or harmed by the authorities because he had been in Australia (an “infidel” country).
As to claims about threats from “other groups”, the Tribunal had regard to a DFAT assessment that there was no evidence indicating that individuals would be subject to discrimination or violence as a result of having spent time in Western countries. It did not accept that any insurgent group would “target” the Applicant for harm or kidnapping because of his residence in Australia and concluded that the Applicant “does not have a real chance of serious harm or a real risk of significant harm for this reason”.
Under the heading “The situation in Parachinar” the Tribunal accepted that the home region of the Applicant (who came from the city of Parachinar in the area of Upper Kurram) was the Kurram Agency. It considered his claim that he would be harmed in that region as a Pashtun and Shia Muslim, a Turi tribe member, a Pashtun Shia from Pakistan, or for reason of an imputed political opinion against the Taliban or membership of “various” particular social groups arising from his background and in that context discussed country information.
The Tribunal acknowledged that the Applicant’s home area had been a violent region in Pakistan, in particular between 2007 and 2012 when there were significant violent acts between Shias, Sunnis and the Taliban. It referred to the most recent (April 2015) DFAT Report on Shia in Pakistan which described the Upper Kurram as “a strategic strip of land” bordering Afghanistan, discussed violence in the area and stated that ongoing counterinsurgency operations had resulted in a “high level of generalised violence”. DFAT was said to have expressed the view that:
Overall, DFAT assesses that there is a high degree of generalised violence in the FATA [Federally Administered Tribal Areas] 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.
In its decision of 19 August 2015 the Tribunal stated that it had also considered country information that was more recent than this April 2015 DFAT Report and the more general April 2015 DFAT Report on Pakistan. The Tribunal observed that there had been no “significant” violent attacks in Parachinar or surrounding areas since July 2013 and that while there had been incidents of violence and people had been killed, there had not been the repeat of significant “targeted” events that were common in the period from 2007 to 2012 and that had caused multiple casualties. It addressed recent information in relation to incidents involving Shia victims and the level of violence against Shia, including Shia from Parachinar and Kurram Agency, and “sectarian violence” in Kurram Agency. In that context, the Tribunal recorded that it had put to the Applicant the view that the country information regarding Parachinar and the Kurram Agency showed that violence in the region had significantly reduced.
In addition, the Tribunal addressed country information said to be contrary to the submission that the then current military offensive (from June 2014) was making the region more volatile. The Tribunal was of the view that the offensive had led to a significant change in the area. It referred to evidence from a June 2015 article in The Express Tribune that civilian causalities were “in decline” (although the cited information also referred to the 2015 civilian casualty rate as “horrifically high regardless”). The Tribunal also cited a July 2015 Report evaluating the counterinsurgency which stated that in the first three months of 2015 total fatalities in FATA had reduced by about a third. The report described this situation as “comparative” peace and tranquillity, although it also referred to risks from retaliatory attacks and the fact that adjacent Afghan provinces were “militant safe havens”.
The Tribunal acknowledged that there had been insurgent reprisals for the military offensive. It referred to the most prominent of these (a December 2014 attack on the Army Public School & College in Peshawar in which 132 children and 10 staff were killed). It also stated at paragraph 86 that there “does not appear to be any repercussions on the civilian community in the FATA region arising out of this military offensive, given that the levels of violence (sic) has fallen in these areas, with the lowest level of civilian deaths since 2007, if, as stated the trend continues”.
The Tribunal did not accept that there were any “particularly (sic) personal circumstances” of the Applicant that would mean that he would be “singled out” or “targeted” by the Taliban or any insurgent group in his home area, given that it had not accepted that he would be harmed for his involvement in rallies in Rawalpindi and Islamabad, his support for the ISO or for residing in Australia (and the attendant political opinion and membership of particular social group claims said to arise from these past activities).
The Tribunal continued at paragraph 88:
The applicant has claimed that he will be harmed in Parachinar because of his Shia religious background, his Turi Tribe membership and Pashtun ethnicity, imputed anti-Taliban/pro West political opinion and membership of various particular social groups arising out of his coming from Parachinar, being a Turi and a Shia and a Pashtun. The Tribunal therefore has to consider whether the applicant, given these attributes, would face a real chance of serious harm or a real risk of significant harm, for these reasons, now and in the reasonably foreseeable future.
The Tribunal did not accept that the Applicant had been “personally targeted” because he was a Shia, a Turi tribe member, a Pashtun, or as a Pashtun Shia Turi from Parachinar, or because of any attendant anti-Taliban political opinions arising from this background, any imputed pro-Western political opinion or associated membership of particular social groups claimed. It noted that the Applicant had lived in his home region for an extended period of time without being targeted for harm for these reasons prior to 2010. While it accepted that there had been a campaign of violence that targeted Shia Pashtun Turi from Parachinar in the past, the Tribunal stated that the country information “would show” that this was not the present situation in the region. It explained at paragraph 89 that it had considered all the country information “in the context of the applicant’s claims arising from his background”.
At paragraph 90 the Tribunal stated that it did not accept that the Applicant faced a real chance of serious harm or a real risk of significant harm in his home region “for these attributes”. In this context, it continued:
…While noting the April 2015 DFAT guidance, the Tribunal considers that the country information provided in detail demonstrates that the situation in Parachinar, and in Kurram more generally, has witnessed a significant decline in the violence for what is now an extended period of time, two years since the last major incident in this area. The Tribunal accepts that there have been incidents of violence in the area, as detailed in the reports mentioned above. However these incidents are isolated and limited in scale and scope, and there are few causalities in the region for Parachinar Shias, Turi Tribe members, Pashtuns, those attributed with anti-Taliban political opinions or pro-Western opinions, or people belonging to particular social groups that the applicant claims to be a member of. The Tribunal considers at present, the prospect of the applicant being harmed for these reasons is remote and mere speculation, and not one that constitutes a real chance or a real risk of occurring.
The Tribunal then stated (at paragraph 91) that it had considered whether the Applicant has “a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future”. It referred to the submission that there was recurring violence in the Applicant’s home area which would happen again and that the recent military exercise would lead to reprisals. However the Tribunal was of the view that the level of violence in the Applicant’s home region had been declining significantly prior to the June 2014 military offensive in nearby areas, that the situation in the region could be described as “improving” prior to the military action and that since the military action there had not been any increase in the violence in the region, but rather a “notable” decline in violence and, in particular, in the use of suicide. The Tribunal continued:
94. Given that this improvement in the security situation in the applicant’s home region has been ongoing for an extended period, the Tribunal considers that there are grounds to determine that the prospect that the situation in the applicant’s home region will remain peaceful, now and in the reasonably foreseeable future, is quite high.
95. The Tribunal considers on the country information it has read, including that submitted by the applicant’s agent, and the country information included above, that the situation in the Parachinar region has improved to the extent that the chance or risk of the applicant being harmed for the Convention reasons relied upon by the applicant can only be considered to be remote or speculative. The Tribunal does not accept that the applicant will be harmed on return to Parachinar for these reasons.
96. The Tribunal finds that, individually and cumulatively, the applicant does not have a real chance of serious harm arising from his being a Shia, a Turi tribe member, a Pashtun, or as a Pashtun Shia Turi from Parachinar, attendant anti-Taliban political opinions arising from this background, any imputed pro-western political opinion, or associated membership of particular social groups claimed a Shia Pashtun Turi from the Parachinar region, which include the Convention grounds of race, religion imputed political opinion and membership of a particular social groups that arise out of that combination. The Tribunal has not accepted that he will be harmed because of his involvement in protest rallies or as a supporter of the Youth of Parachinar or ISO. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons now or in the reasonably foreseeable future.
97. The Tribunal further finds, based on the consideration of the evidence above, that the applicant does not have a real risk of significant harm, either individually or cumulatively, for these reasons.
The Tribunal then addressed what it described as the Applicant’s “new” claim that he was at risk because of the IS (referred to as Daesh in Pakistan). This claim was said to arise out of “speculation and reports that Daesh is active in Pakistan”. The Tribunal referred to country information about Daesh involvement in Pakistan, but found that this claim appeared to be based on the Applicant’s subjective belief that Daesh had the capacity and willingness to actively “target” him or to attack him when he was with other Shiites. The Tribunal considered that this claim was “far-fetched”. Although it accepted that there were insurgent groups (such as Daesh) in Pakistan with anti-Shia philosophies, it stated that “as determined”, it did not accept that the Applicant faced a real chance of serious harm or a real risk of significant harm from insurgent groups in Pakistan, be they Taliban, Lashkar-e Jhangvi or groups of people identified as Daesh in Pakistan.
The Tribunal continued at paragraphs 100 to 101:
100. The Tribunal has considered the issue of risk to the population in the home region generally. The applicant has provided a warning to Australians not to travel to certain locations in Pakistan. The applicant is not an Australian citizen or permanent resident. The applicant is a Pakistani citizen. There is nothing that would lead to the applicant being singled out by any party seeking to cause harm or violence in the applicant’s home region. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
101. This consideration of generalised risk further demonstrates that the applicant does not face a level of risk personally in his home region than (sic) the population generally in his area. As determined above, the Tribunal considers that the risk of harm in the applicant’s home region is significantly diminished, to the point that the Tribunal does not consider that there is a real risk of significant harm for the applicant or the population generally.
The Tribunal concluded that it was not satisfied that the Applicant met the Refugees Convention criterion or the complementary protection criterion. It affirmed the decision under review.
These Proceedings
The Applicant sought review of the Tribunal decision by application filed on 21 September 2015. He now relies on an amended application which contains two grounds.
Section 36(2)(aa) issue
The first ground is as follows:
1. The Tribunal misconstrued or misapplied s 36(2)(aa) of the Act.
Particulars
a. The applicant claimed to be unable to return to his home location in Kurram Agency, Pakistan, because he would be targeted because of his race, religion, membership of particular social groups and imputed political opinion: Tribunal’s Decision at [23].
b. The applicant also claimed to be entitled to complementary protection: submission of 30 June 2015 at [84]-[96].
c. The Tribunal rejected the applicant’s claims to be entitled to protection as a result of his being a refugee on the basis that none of the applicant’s race, religion, memberships of particular social groups or imputed political opinion gave rise a well-founded fear of persecution: Tribunal’s Decision at [96].
d. In the next paragraph, in dealing with the applicant’s complementary protection claim, the Tribunal stated only that: “The Tribunal further finds, based on the consideration of the evidence above, that the applicant does not have a real risk of significant harm, either individually or cumulatively, for these reasons”: Tribunal Decision at [97].
e. In reasoning as set out in the preceding particular, the Tribunal erred as the complementary protection regime did not require the applicant to establish that he faced a real risk of significant harm on the basis of a Convention ground.
The Applicant pointed to the fact that the Tribunal considered a range of country information in its August 2015 decision, including the DFAT April 2015 report on Shia in Pakistan which stated that ongoing counterinsurgency operations against militants in the FATA “have resulted in a high level of generalised violence”. The “overall” DFAT assessment was that there is a “high degree of generalised violence” in the FATA and a “moderate risk of sectarian violence” in some areas and that “the situation in the FATA remains volatile due to ongoing counterinsurgency operations by the Pakistani security services” (emphasis added).
It was acknowledged that the “more recent” June 2015 article in The Express Tribune to which the Tribunal referred, had stated that the ongoing military offensive had been followed by a decline in civilian casualties from terrorist activities, such that “if trends hold steady” this would mean that 2015 had the lowest number of civilian deaths since 2007. However the Applicant pointed out that this article nonetheless described the number of deaths in 2015 as “horrifically high regardless”.
Further, the Applicant referred to the fact that while the cited July 2015 article suggested that the military offensive had been a success to some extent and described a pro rata reduction in fatalities in FATA in the first three months of 2015, nonetheless there were 411 fatalities in that period and the article also referred to weaknesses and future risks associated with this operation, including from the “militant safe havens” in Afghanistan adjacent to the Applicant’s home region.
The Applicant pointed out that the information he provided to the Tribunal included the DFAT “Smart Traveller” website July 2015 report which referred generally to a high threat of kidnapping, particularly in regions including FATA, and included strong advice not to travel to FATA (and other regions) due to the extremely dangerous security environment and the ongoing counterinsurgency operation in FATA. However it was suggested that in its reasons the Tribunal had considered aspects of country information that specifically focused on “sectarian” violence (in particular against Shias) in the Kurram Agency or FATA.
The Applicant suggested that the Tribunal’s view (at paragraph 86 of its reasons) that there did not appear to be any “repercussions” on the civilian community in the FATA region arising out of the military offensive “given that the levels of violence (sic) has fallen in these areas, with the lowest level of civilian deaths since 2007, if, as stated the trend continues” appeared to reflect its acceptance of the position outlined in the cited Express Tribune article. However it was suggested that the Tribunal had “neglected” to refer to the view expressed in that article that the number of civilian deaths in 2015 was nevertheless an “horrifically high” number.
The Applicant contended that while he claimed to fear harm from generalised violence in his home region (and the material before the Tribunal also raised such a claim), in considering whether he faced a real chance of serious harm or a real risk of significant harm from recurring violence in his home area the Tribunal had limited its findings (in paragraph 95 of its reasons (set out at [36] above)) to the chance or risk of future harm from recurring violence “for the Convention reasons relied upon by the applicant”.
Counsel for the Applicant submitted that in circumstances where the country information cited by the Tribunal suggested there was a significant risk of generalised violence in the Applicant’s home region (that is, violence that was not targeted at any person for a Refugees Convention reason), including evidence that, despite a decline in civilian deaths following a military offensive, the level of civilian deaths was still “horrifically high”, the Tribunal had made the error of limiting its assessment of whether the Applicant faced a real risk of significant harm in his home area from such generalised violence to whether there was a chance or risk of the Applicant being harmed for the Convention reasons relied upon. It was submitted that the Tribunal’s inquiry for the purposes of the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) could not be confined to a consideration of whether the Applicant faced a real risk of significant harm from generalised violence in the Parachinar region for a Refugees Convention reason he had advanced.
It was acknowledged that in paragraph 96 of its reasons the Tribunal had set out a conclusory finding rejecting the Applicant’s Refugees Convention based claims generally, finding that he did not have a real chance of serious harm or a well-founded fear of persecution “for these reasons”. This was said to be clearly a reference to the specified attributes and Refugees Convention grounds listed in that paragraph (as set out at [36] above).
It was pointed out that when, in the next paragraph (paragraph 97), the Tribunal made a conclusionary finding in relation to the complementary protection criterion: “The Tribunal further finds, based on the consideration of the evidence above, that the applicant does not have a real risk of significant harm, either individually or cumulatively, for these reasons”, it confined its conclusion to a finding that the Applicant did not have a real risk of significant harm for these reasons (emphasis added). The Applicant submitted that this confined the assessment to a consideration of the risk of significant harm for the Convention reasons to which the Tribunal had just referred in paragraph 96 and the specific personal attributes of the Applicant said to raise “attendant” Convention reasons. In other words, it was submitted that this brief, generally expressed conclusion, did not address the risk of significant harm to the Applicant from generalised violence that lacked a Convention nexus.
This was said to amount to a jurisdictional error, given that the complementary protection criterion in s.36(2)(aa) of the Act does not require that there be a Refugees Convention reason for any risk of harm faced by an applicant. It was contended that there was no other way the Tribunal’s reference to the phrase “for these reasons” in paragraph 97 could be read.
In support of the submission that the Tribunal had proceeded in this manner, the Applicant also drew attention to the fact that (as discussed above) at various points in its findings the Tribunal had incorporated references to Refugees Convention reasons, including when considering whether there was a real risk of significant harm.
In particular, it was submitted that the references in paragraphs 88 and 90 of the Tribunal reasons to harm “for these reasons”, were reflective of this approach and supported the contention that the Tribunal had embarked on and answered its s.36(2)(aa) enquiry by erroneously looking for a Refugees Convention reason for any risk of significant harm that the Applicant might face.
The Applicant acknowledged that, as the First Respondent pointed out, in the concluding part of its reasons the Tribunal referred generally to having determined that it did not accept that the Applicant faced a real risk of significant harm (in paragraphs 99 and 101). However it was submitted that in making each of those findings the Tribunal had incorporated its earlier reasoning to explain the basis for the findings. It was submitted that as such further statements merely relied upon and incorporated the Tribunal’s earlier erroneous reasoning they were equally flawed and did not overcome the approach taken in paragraphs 95 and 97 of the Tribunal reasons.
The First Respondent accepted that the Applicant claimed to fear harm from generalised or recurring violence in his home area. However, it was submitted that the Applicant’s contention that when referring to “for these reasons” in paragraph 97 the Tribunal had required that he be at a real risk of significant harm for one of the Refugees Convention reasons was not a fair reading of the Tribunal decision and was contrary to the approach suggested in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272.
It was contended that the “real chance” and “real risk” tests were “the same” (having regard to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246]) and that as the Tribunal stated at paragraph 41 the “real risk” test imposes “the same standard” as the “real chance test”.
The First Respondent pointed out that in making findings that the Applicant did not have a well-founded fear of serious harm or a real risk of significant harm because he had attended rallies in 2010 and 2011; because he had been in Australia; as a Pashtun Shia Turi from Parachinar; as well as from “recurring violence” in his home area (which was said to be addressed at paragraphs 91 to 95); the Tribunal had explicitly addressed a real chance of serious harm and a real risk of significant harm together. It was said to be abundantly clear, however, that the Tribunal was considering the level of risk of harm that the Applicant faced for each reason claimed, rather than whether the harm he claimed to fear would be inflicted for a Refugees Convention reason.
It was submitted that, seen in context, the Tribunal’s conclusions at paragraphs 96 to 97 were, similarly, dealing with the claimed risks of harm to the Applicant and were not limited to forms of harm that might be inflicted for a Convention reason. The First Respondent submitted that this was not a case in which any of the Applicant’s refugee claims were found to have failed because the harm inflicted was not for a Refugees Convention reason (cf SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32]) and that this supported the proposition that, on a fair reading, the preferable inference was that the Tribunal had not misconstrued s.36(2)(aa) as claimed.
Insofar as this ground amounted to a contention that the Tribunal did not address the Applicant’s claim to fear harm as a result of generalised violence, the First Respondent submitted that, on a fair reading, it was clear that the Tribunal had addressed the risk of generalised violence in paragraphs 91 to 95 for the purposes of both the Refugees Convention criterion and the complementary protection criterion in considering the real chance of serious harm or real risk of significant harm, notwithstanding its reference in paragraph 95 to “for the Convention reasons relied upon by the applicant”.
It was suggested that nothing turned on the Tribunal’s reference to Convention reasons, as this simply reflected the way the Applicant put his case. It was also contended that while the Applicant’s claimed fear of generalised violence was not referred to explicitly in paragraph 96 it had already been dealt with (at paragraphs 91 to 95) and hence was encompassed by the general complementary protection finding in paragraph 97 which (it was suggested) was not addressing only Convention-related reasons in the reference to “for these reasons”.
The First Respondent also suggested that the concluding sentence in paragraph 101 of the Tribunal’s reasons was a reference to what the Tribunal had previously said at paragraphs 91 to 95 about the risk of harm from recurring violence in the Applicant’s home area and to the finding at paragraph 97 which was said to amount to a finding that the Applicant did not have a real risk of significant harm in his home area for any reason.
Consideration
In his initial statutory declaration the Applicant claimed to fear harm or mistreatment by the Taliban and/or associated groups by reason of his religion as a Shia Muslim, his membership of the particular social group of Pashtun Shias; and/or because he had actively protested against the Taliban rule.
The delegate identified Refugees Convention grounds of race, religion and political opinion and accepted that there was a factual basis for the Applicant’s fear of being subjected (as a Turi Shia) to severe forms of sectarian violence in Parachinar. However the delegate found that the Applicant could reasonably relocate to an area in Pakistan, such as Islamabad, where sectarian violence was sporadic. In considering the complementary protection criterion the delegate referred generally to the Applicant’s claim to fear being tortured and killed by the Taliban and other Sunni extremists groups in Pakistan, but again found that relocation to an area in Pakistan where sectarian violence was sporadic was reasonable and would remove the real risk of significant harm.
In pre-hearing written submissions to the Tribunal of June 2015 the Applicant’s agent addressed both the Refugees Convention and complementary protection criteria. These submissions addressed country information about terrorist attacks and kidnapping as well as political and sectarian violence, albeit focusing primarily (and unsurprisingly given the delegate’s findings) on the reasonableness of relocation to another part of Pakistan outside the Applicant’s home area. It was also submitted, without elaboration, that s.36(2B) of the Act did not apply to the Applicant.
It is apparent from the Tribunal reasons, that in addition to his original claims, the Applicant also claimed to fear harm from IS (Daesh).
It is not disputed by the parties that the Applicant also made claims to fear harm from generalised violence in his home area, that is, claims that were not confined to a fear of harm for a Convention reason and which raised the question of whether he met the complementary protection criterion. In other words, the Applicant’s claims were not limited to a claim to fear harm for a Convention reason or because of a personal attribute that could be expressed in such terms. Nor was the country information cited by the Tribunal so limited.
In its reasons for decision the Tribunal referred to the tests for both the Refugees Convention criterion and the complementary protection criterion.
In considering the Applicant’s claim to fear future harm based on his past activities and his residence in Australia the Tribunal expressed its views by reference to whether the Applicant would be “targeted” by the Taliban for past activities. The Applicant also claimed that he would be targeted as a supporter of the ISO. The Tribunal’s finding in this respect referred only to the Refugees Convention criterion (at paragraph 57). However the Tribunal also found that the claim that the Applicant would be “targeted for harm” as a supporter of the ISO had “no basis in fact”.
As the First Respondent submitted, I accept that in the early part of its reasons the Tribunal dealt with the Applicant’s claims to have a real chance of serious harm or a real risk of significant harm based on his past activities in language which reflected the manner in which the Applicant had presented those claims.
The Tribunal also stated that it had considered country information about the situation in the Applicant’s home region of Parachinar, in light of the Applicant’s claims to fear harm “because of” being a Pashtun and Shia Muslim, a Turi tribe member, a Pashtun Shia from Pakistan, an imputed political opinion against the Taliban arising from this background and membership of various particular social groups arising from this background. As discussed above, the cited information also referred to generalised violence, although the Tribunal’s discussion focused on sectarian violence and “targeted” attacks, in particular incidents involving Shia, including Shia from Parachinar and the Kurram Agency. While the Tribunal did express the view that violence in the region had significantly reduced, in this context the Tribunal did not accept that there were “any particularly (sic) personal circumstances” of the Applicant that would mean that he would be “singled out or targeted” by the Taliban or any insurgent group. It went on to state (at paragraph 88) that it had to consider whether, given the Applicant’s listed “attributes”, he would face a real chance of serious harm or a real risk of significant harm “for these reasons”.
The Tribunal reiterated that it did not accept that the Applicant had been “personally targeted” in the past because of any of his listed attributes or the “attendant” Refugees Convention reasons upon which he relied. The Tribunal also found (at paragraph 90) that it did “not accept that the applicant does face a real chance of serious harm or a real risk of significant harm in his home region for these attributes”; and that “the prospect of the applicant being harmed for these reasons is remote and mere speculation, and not one that constitutes a real chance or a real risk of occurring” (emphasis added) having regard to the current situation in his home region.
I accept that in this part of its reasons the Tribunal was referring to the particular “attributes” of the Applicant which he claimed exposed him not only to a real chance of serious harm in Parachinar for a Convention reason but also to a real risk of significant harm. The Tribunal focused on whether the Applicant would, in effect, be “targeted” for his attributes. As the Applicant submitted, this part of the Tribunal findings did not address the risk of harm to the Applicant from generalised violence.
Relevantly, in paragraphs 91 to 95 of its reasons the Tribunal turned to consider the prospect of recurring violence in the Applicant’s home area. It is not in dispute between the parties that this part of the Tribunal reasons was intended to address the prospect of harm to the Applicant from future generalised violence based on the current and future situation in Parachinar and in Kurram Agency generally, but there is no indication in the reasons that this part of the decision was not also addressing the chance or risk of future harm for the reasons or personal attributes claimed by the Applicant.
The Tribunal began its consideration of this aspect of the Applicant’s claims by stating generally, without reference to any reasons for the feared harm (at paragraph 91):
The Tribunal has considered whether the applicant has a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. It has been submitted that there is recurring violence in the area, it will happen again, and that the recent military exercise, when completed, would lead to acts of reprisal in the region.
The Tribunal was of the view that there had been a “notable” decline in violence, although it did not address the qualifications in that respect in the cited country information and appeared to equate “comparative” peace with peace, in stating that there were “grounds to determine that the prospect that the situation in the applicant’s home region will remain peaceful, now and in the reasonably foreseeable future, is quite high” (emphasis added).
In any event, what is critical for present purposes is that at paragraph 95 the Tribunal made only a limited finding in relation to this aspect of the Applicant’s claims as follows:
The Tribunal considers on the country information it has read, including that submitted by the applicant’s agent, and the county information included above, that the situation in the Parachinar region has improved to the extent that the chance or risk of the applicant being harmed for the Convention reasons relied upon by the applicant can only be considered to be remote or speculative. The Tribunal does not accept that that (sic) applicant will be harmed on return to Parachinar for these reasons.
(emphasis added)
In other words, in the conclusionary paragraph in relation to its consideration of the Applicant’s claimed fear of harm from future recurring or generalised violence in his home area, the Tribunal expressly, and incorrectly, limited its consideration to “the chance or risk” of the Applicant being harmed “for the Convention reasons relied upon”. This finding did not address the complementary protection claim based on generalised violence that was not for a Convention reason or for reason of a personal attribute of the Applicant giving rise to an attendant Convention reason. The express limitation to a consideration of harm for “the Convention reasons relied upon by the applicant” is not consistent with the interpretation contended for by the First Respondent. Insofar as “for these reasons” may be a broader concept, seen in this context it must be a reference to the reasons (that is, the attributes of the Applicant and Convention reasons) expressly addressed in paragraph 90.
In paragraph 96 the Tribunal made a general conclusion considering the Applicant’s attributes and the “attendant” Refugees Convention grounds. It addressed those claims “individually and cumulatively”.
The Tribunal’s conclusion at paragraph 97 in relation to complementary protection was as follows:
The Tribunal further finds, based on the consideration of the evidence above, that the applicant does not have a real risk of significant harm, either individually or cumulatively, for these reasons.
This was also a conclusionary finding, intended to consider previous findings individually and cumulatively. Hence it must be seen in light of the Tribunal’s earlier findings. I have borne in mind that it is well-established that there is no jurisdictional error merely because a Tribunal refers to previous findings in considering the complementary protection criterion (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774). To the extent that there is a factual foundation common to both the Refugees Convention and complementary protection claims if the Tribunal does not accept the factual foundation then jurisdictional error is not made out if the Tribunal simply refers to its earlier reasons in addressing s.36(2)(aa) claims (see SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121; (2015) 232 FCR 452 at [35]-[36]).
However that is not what occurred in relation to the Applicant’s claimed fear of a real risk of significant harm from future generalised violence. While the Tribunal discussed the level of violence in the Applicant’s home region, its conclusion in relation to the risk of harm to the Applicant from generalised violence was in paragraph 95 and was expressly limited to harm for the Convention reasons relied on by the Applicant.
Insofar as paragraph 97 is intended to be a “catch all” conclusion in relation to the complementary protection criterion, this would suffice in relation to the bases for harm addressed in paragraph 96 of the Tribunal’s reasons. However paragraphs 95 to 97 did not address the claim based on a risk of harm to the Applicant from generalised (that is, non-targeted) violence in his home area.
Nor is this a case in which paragraphs 91 to 95 can be read as containing factual findings that are sufficient to dispose of this aspect of the Applicant’s claims. Rather, consistent with the approach it took in paragraph 90, the Tribunal related its view of country information to the Applicant’s claims to fear harm for particular reasons. Despite the Tribunal’s optimism (in paragraphs 92 to 94) about an improvement in the security situation in the Applicant’s home area, to the extent there is a finding in paragraph 95 about the Applicant’s claimed fear of harm, it is expressly limited to whether there is a chance or risk of the Applicant being harmed for the Convention reasons relied upon. This may reflect the Tribunal’s focus on the risk of sectarian violence. It is notable that in paragraph 95 the Tribunal made a finding based on the “extent” of the improvement in the situation in Parachinar. This might well relate to the “moderate risk of sectarian violence” identified by DFAT. In any event, given the limitation to harm for Convention reasons, this finding did not address the risk of significant harm to the Applicant from “generalised violence”.
The fact that the Tribunal did not otherwise find that any of the Applicant’s Refugees Convention claims failed because the harm inflicted was not for a Convention reason does not alter the fact that its express finding in relation to the risk of harm from recurrent violence in the Applicant’s home region was expressly confined to harm for the Convention reasons relied upon.
In these circumstances and having regard to the country information about a significant degree of generalised violence and an “horrifically high” number of civilian deaths, the generally expressed conclusory paragraph 97 does not adequately address the Applicant’s complementary protection claim to fear harm from generalised violence (that is, violence not targeted for a Convention reason) in his home area.
As the Applicant submitted, the Tribunal could not answer the s.36(2)(aa) question by considering only whether he faced a real risk of significant harm for any of the Refugees Convention reasons he advanced.
Further, paragraphs 99 to 101 of the Tribunal decision do not overcome this error. These paragraphs appear in the part of the Tribunal decision headed “IS/DAESH threat”. Paragraph 99 is clearly limited to the IS/Daesh threat. It refers expressly to the Applicant’s fear of Daesh as an anti-Shia insurgent group and describes that fear as far-fetched. It incorporates the earlier findings “as determined” that the Tribunal did not accept that the Applicant faced a real chance of serious harm or a real risk of significant harm from insurgent groups. Insofar as this relates to the findings at paragraphs 95 to 97, it incorporates and does not overcome the earlier error.
It appears that paragraphs 100 to 101 of the Tribunal reasons are intended to address s.36(2B)(c) of the Act. As discussed in relation to ground 2, these paragraphs reveal a misconstruction and misapplication of s.36(2B)(c) of the Act. In any event, both paragraphs also refer back to and incorporate the Tribunal’s earlier findings. Paragraph 100 focuses on the earlier finding that there is nothing that would lead to the Applicant being singled out by any party seeking to cause harm in his home region. This does not address the generalised violence claim.
Further, even if the last sentence of paragraph 101 can, as the First Respondent suggested, be seen as a reference to the Tribunal’s earlier consideration of the Applicant’s fear of generalised violence (rather than simply as part of the misapplication s.36(2B)(c)), it also incorporates by reference the Tribunal’s earlier erroneous approach in limiting its consideration to the chance or risk of harm “for the Convention reasons relied upon by the applicant”.
Ground 1 is made out. The matter should be remitted to the Tribunal for redetermination according to law.
Ground 2
Ground 2 is as follows:
The Tribunal misconstrued or misapplied s 36(2B)(c) of the Act.
Particulars
a. The Tribunal considered that s 36(2B)(c) had application in the applicant’s case on the basis that there was “nothing that would lead to the applicant being singled out by any party seeking to cause harm or violence in the applicant’s home region”: Tribunal Decision’s (sic) at [100].
b. The Tribunal’s holding that the applicant would not be singled out by any party seeking to cause harm or violence in the applicant’s home region did not provide any basis for the operation of s 36(2B)(c). The subsection is naot (sic) engaged in relation to risks that exist in an applicant’s home region, as opposed to risks faced by the population of the applicant’s country generally.
The Applicant submitted that the Tribunal misconstrued or misapplied s.36(2B)(c) of the Act by considering that it had application in relation to his case.
Section 36(2B) contains exceptions relevant to the complementary protection criterion in s.36(2)(aa) of the Act. It specifies when there is taken not to be a real risk that a non-citizen will suffer significant harm in a country, as follows:
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Tribunal discussed this provision at paragraphs 100 to 101 of its reasons as follows:
100. The Tribunal has considered the issue of risk to the population in the home region generally. The applicant has provided a warning to Australians not to travel to certain locations in Pakistan. The applicant is not an Australian citizen or permanent resident. The applicant is a Pakistani citizen. There is nothing that would lead to the applicant being singled out by any party seeking to cause harm or violence in the applicant’s home region. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
101. This consideration of generalised risk further demonstrates that the applicant does not face a level of risk personally in his home region than (sic) the population generally in his area. As determined above, the Tribunal considers that the risk of harm in the applicant’s home region is significantly diminished, to the point that the Tribunal dos not consider that there is a real risk of significant harm for the applicant or the population generally.
(emphasis added in Applicant’s submissions)
As the parties accepted, the exception in s.36(2B)(c) applies only where a real risk that is faced by a non-citizen is a risk that is faced by “the population of the country generally”.
The Applicant submitted that the Tribunal erred in considering that s.36(2B)(c) applied on the basis that there was nothing to lead to him being “singled out” by any party seeking to cause harm or violence in his “home region” (in paragraph 100) and in confining its application of this provision to the population in the Applicant’s home region, rather than considering the population in Pakistan generally.
The Applicant referred to SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11] per Rares J referring to a risk faced “by the population of the country generally” and to BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150 at [30] and [32] in which Buchanan J confirmed that s.36(2B)(c) applied only where the risk in question affected the “general population” of the country in question. Buchanan J also suggested that s.36(2B)(c) should only be discussed in circumstances where otherwise the requirements of s.36(2)(aa) would be met (see BBK15 at [29]).
The Applicant submitted that while the first sentence in paragraph 101 of the Tribunal decision was somewhat opaque, it nonetheless reflected the Tribunal’s conclusion in relation to s.36(2B)(c) in referring to a level of risk in the Applicant’s “home region” and the population generally “in his area”. It was suggested that the Tribunal had addressed risks of harm to the Applicant or the population generally “in the applicant’s home region” and then reached a conclusion in terms which reflected its incorrect application of s.36(2B)(c) of the Act. It was pointed out that if the Tribunal had considered that there was no real risk of significant harm to the Applicant, there would have been no cause for it to refer to s.36(2B)(c) of the Act.
It was contended that that the Tribunal’s error in misconstruing and misapplying s.36(2B)(c) of the Act in paragraph 100 was not overcome by the final sentence of paragraph 101 which reflected the conclusion reached by the Tribunal based on its misconstruction of s.36(2B)(c) as confined to the Applicant’s home area.
The Applicant submitted that this error was a jurisdictional error and also that this was not a case in which it would be appropriate to exercise the discretion to refrain from granting relief on the basis that an error of the kind asserted could not have affected the Tribunal’s decision. Given the lack of clarity in paragraph 101 it was submitted that the court could not be so satisfied (see Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 at 477 and Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69; (2017) 251 FCR 143 at [123]-[126], but now see the approach taken in Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 92 ALJR 798 at [10]-[11]).
In written submissions the First Respondent pointed to the concluding sentence in paragraph 101. It was submitted that, read fairly and in context, this must be a reference to the Tribunal’s previous conclusion (at paragraphs 91 to 95) which was said to be a conclusion that the Applicant did not face a real chance of serious harm or a real risk of significant harm in his home region because of the security situation there.
On the basis that the Tribunal had found that the Applicant did not face a real risk of significant harm in his area, the First Respondent submitted that the criterion in s.36(2)(aa) could not be satisfied, regardless of s.36(2B)(c) (BBK15 at [29]). It was pointed out that s.36(2B)(c) was only engaged when there was a real risk of harm faced by an applicant that was a risk shared by the general population (see BBK15 at [30]). In these circumstances it was contended that, having regard to the Tribunal’s earlier findings, its references to s.36(2B)(c) “were irrelevant to its reasoning”.
Counsel for the Minister accepted that it was incorrect for the Tribunal to have referred in the first sentence of paragraph 101 to the risk facing the population generally in the Applicant’s “area” instead of in the country of Pakistan. However it was contended that when paragraphs 100 and 101 were read together, ultimately nothing turned on the reference to s.36(2B)(c) and what may be a misunderstanding by the Tribunal as to what s.36(2B)(c) required.
It was suggested that the Tribunal could not actually be applying s.36(2B)(c) because it had already found that the Applicant and the population generally in the Kurram Agency did not face a real risk of significant harm. On this basis the First Respondent submitted that the issue of s.36(2B)(c) did not properly arise in this case.
It was acknowledged that paragraph 101 could be read as an application of s.36(2B)(c) of the Act, but submitted that this would seem unnecessary if there was in fact no real risk of significant harm and that what the Tribunal ultimately stated in the second sentence was by reference to its earlier finding that there was not a real risk of significant harm for the Applicant, so that the first sentence of paragraph 101 was immaterial.
Hence it was submitted that any error by the Tribunal in relation to s.36(2B)(c) did not affect its exercise of power and so no jurisdictional error occurred (see, for example, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22], [45] and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [120]-[122]). In the alternative, the First Respondent submitted that any such error was immaterial as it could not have affected the outcome of the Tribunal’s decision, so that relief should be declined in the exercise of the court’s discretion. Reference was made to Jankovic; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [27]-[29] and Shrestha [FCAFC] at [12]-[17], [41]-[48], [121]-[127] (but now see Shrestha [HCA]).
Consideration
In SZSPT Rares J expressed the view (at [11]) that:
In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.
(emphasis added in Applicant’s submissions)
In BBK15, Buchanan J rejected a contention that for s.36(2B)(c) to apply the Tribunal had to be satisfied that the real risk of harm in question was “faced by the population of the country generally” and that it was not faced by the visa applicant personally, stating at [29], [30] and [32]:
29. I do not accept that construction. If the Tribunal was satisfied that there was a real risk of harm faced by the population generally which was not faced by a visa applicant personally then s 36(2)(aa) would not be engaged at all. There would be no need to refer to s 36(2B)(c).
30. In my view, s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense (see also SZSPT… [2014] FCA 1245 at [11]). A risk shared with the general population is taken not to be a “real risk of harm” for the purpose of s 36(2)(aa).
…
32. I also reject the appellant’s contention that s 36(2B)(c) only applies if a risk is faced by all members of the population of a country. In my view, the Tribunal was correct to understand that a reference to “the population of the country generally” is a reference to the commonly understood concept of the general population – i.e. there need not be a risk faced by all members of the population or by each citizen of a country for s 36(2B)(c) to apply.
If s.36(2)(aa) (which sets out the complementary protection criterion) is not engaged, there is no reason to refer to s.36(2B)(c) of the Act, as it is one of the circumstances in which “there is taken not to be a real risk that a non-citizen will suffer significant harm in a country”.
However in this case the Tribunal considered s.36(2B)(c) of the Act. In so doing it incorrectly confined the provision to risks in the Applicant’s home region. As the First Respondent conceded in submissions, the Tribunal misconstrued s.36(2B)(c) of the Act. Reading paragraphs 100 and 101 of the Tribunal reasons together, it is clear that the Tribunal incorrectly understood that s.36(2B)(c) would apply to risks that existed in the Applicant’s home region (which it had found at paragraph 61 was the Kurram Agency), instead of risks faced by the population of Pakistan generally in the sense explained by Buchanan J in BBK15 at [30] and [32]. This was an error of law.
In my view it is apparent that the Tribunal also misapplied s.36(2B)(c) in paragraph 101, notwithstanding a degree of opacity, perhaps reflecting the misconstruction.
The Tribunal erroneously relied on s.36(2B)(c) to support a conclusion that the Applicant did not meet the complementary protection criterion because of recurrent or generalised violence in his home area. However, this was an alternative to and has to be read in light of the findings (as the Tribunal stated “determined above”) in the conclusion in paragraph 95 of its reasons (which, as discussed above, was limited to harm for the Convention reasons relied on by the Applicant) and in paragraph 97 (which was limited to harm for the reasons previously discussed by the Tribunal). I have found that that aspect of the Tribunal’s decision was affected by jurisdictional error.
In these circumstances I am not persuaded that in the context of this particular decision the Tribunal’s misconstruction and misapplication of s.36(2B)(c) could not have affected its exercise of power. In any event, even if the Tribunal’s error in this respect was not such as to amount to jurisdictional error (and see generally the recent High Court decisions in Shrestha and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780) the jurisdictional error identified in ground 1 is established and on this basis the matter should be remitted to the Tribunal for redetermination according to law.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 16 October 2018
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