CFC16 v Minister for Immigration
[2018] FCCA 2634
•18 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFC16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2634 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether Tribunal misapplied the “real chance” test – findings of the Tribunal open to it on the evidence before it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65 Migration Regulations 1994 (Cth), Sch.2, cl.866.221 |
| Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387 |
| Applicant: | CFC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1716 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 25 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1716 of 2016
| CFC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By amended application filed 28 May 2018, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) wherein the Tribunal affirmed an earlier decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a protection (Class XA) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant argues the decision of the Tribunal is affected by jurisdictional error. The Applicant seeks orders that the decision be quashed; the decision be remitted to the Tribunal for determination according to law; and that a writ of prohibition issue, prohibiting the First Respondent from acting upon or giving effect to the Tribunal’s decision. The Applicant seeks costs.
The Applicant advances a single ground of judicial review, which is as follows:-
“The Tribunal erred by misunderstanding or misapplying the definition of “refugee” in the Refugees Convention, and therefore the visa criteria in s 36 of the Act.
Particulars
a. The Tribunal found that the applicant was born in Lukham Khel, in the Upper Kurram Agency, in the Federally Administered Tribunal Areas (FATA) of Pakistan. He is a member of the Bangash tribe, and an adherent of the Shia faith.
b. The Tribunal found that there had been sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counter-insurgency campaigns ([39]).
c. The Tribunal found that “Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban” ([44]).
d. The Tribunal found that: the situation in Kurram had “improved” ([44], [49]-[50], [54], [58]); it was “comparatively quiet” ([45]); there had been a “decline” or “decrease” in terrorism-related incidents and militant violence ([47], [48], [52], [56]).
e. The Tribunal found that “the situation can change and fluctuate … and that there is an element of vulnerability in the government security measures”. It considered that one “illustration” of this was a bomb attack in December 2015 in Parachinar which killed at least 25 people and injured over 70 ([53], read with [35]). It found that “there continues to be incidents of sectarian violence in FATA, including in Kurram Agency” ([54]). It found that there is “some level of risk to the applicant” ([55]).
f. However, the Tribunal found that “a level of security has been restored to Kurram Agency” ([53]). It found that, despite the recent terrorist attack in December 2015 “indications are that the security situation has been relatively stable, with the exception of [certain incidents]” ([54]).
g. In this context, the Tribunal found that “it would be premature to conclude that the attack on 13 December 2015 … marks a definite change in the security situation”. “[I]t “would be mere speculation to find on the evidence before [it] that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar … that there is a real chance that any individual Shia Muslim or member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future”.
h. The Tribunal, in so doing, misunderstood or misapplied the definition of “refugee”.”
The First Respondent argues the Tribunal decision is not affected by jurisdictional error. The First Respondent seeks dismissal of the application and costs. The First Respondent submits that the Applicant simply takes issue with the merits of the Tribunal’s assessment of the evidence before it, and the factual findings made by the Tribunal on the basis of that assessment. The First Respondent argues that the Tribunal, when having regard to the whole of the relevant reasoning processes, did understand and apply, correctly, the “real chance” test as set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (‘Chan’).
The Court has before it the evidence as contained in the Court Book filed on 8 February 2017. The Court also has the submissions of the Applicant filed 28 May 2018 and the submissions of the First Respondent filed 12 June 2018.
Background
The Applicant is a citizen of Pakistan of Shia Muslim faith. He arrived in Australia as an unauthorised maritime arrival on 21 July 2012. On 18 December 2012 he applied for the visa. Accompanying that application was a Statutory Declaration declared by the Applicant on 15 December 2012. The Applicant had earlier provided evidence at his entry interview on 7 October 2012. In the visa application, the Applicant claimed that he had lived and worked in the Parachinar province of Kurram Agency in the Federally Administered Tribal Areas in Pakistan, and upon any return to that area in the reasonably foreseeable future, he would face a real chance of serious or significant harm (including death) at the hands of the Taliban and other extremist groups on account of, among other things, his Shia Muslim religion.
On 22 October 2013, the Applicant attended an interview with the delegate. He was assisted by an interpreter in the Pashto and English Languages.
By decision of 16 June 2014, the delegate accepted that the Applicant was a Shia Muslim from Parachinar, Kurram Agency; that he was a member of the Bangash tribe; that there were security issues in Kurram Agency; and that the Applicant owned and managed a tailoring shop in Parachinar from 2004 until his departure from Pakistan on 4 April 2012. His departure followed an explosion near his shop in February 2012, which damaged his shop and killed approximately 40 people. The delegate however, refused to grant the Applicant the visa, finding the Applicant did not meet the criteria under s.36 of the Act and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate accepted that there was a real chance the Applicant would be seriously harmed for a Convention reason if he were to return to Kurram Agency, but found that the Applicant could reasonably relocate to an urban centre within Pakistan, where he would not face a real chance of persecution.
The Tribunal hearing
On 18 June 2014, the Applicant applied to the Refugee Review Tribunal (as it then was) for review of the delegate’s decision.
On 16 December 2015 the Applicant was invited to attend a hearing before the Tribunal on 21 January 2016.
On 18 January 2016, the Applicant’s representative lodged with the Tribunal pre-hearing written submissions and a further statutory declaration of the Applicant dated 13 January 2016. The submission responded to the decision of the delegate, in particular it was submitted that internal relocation was “neither relevant nor reasonable in [the Applicant’s] circumstances”. The submission also referred to country information from the Department of Foreign Affairs and Trade (‘DFAT’), specifically the ‘DFAT Thematic report- Shias in Pakistan’ published in April 2015 (‘the 2015 DFAT Report’).
The 2015 DFAT Report, included information, relevantly, to the following effect (as summarised by the Applicant):-
“(a) “There is a conflict in Kurram, which can be traced to the 1980s. “There has been a history of violence between Shias and Sunnis in Kurram particularly since 2007.” There is “a high level of generalised violence” in the area.
(b) In 2013 a “truce” (the “Murree Agreement”) was made between the Shia Turi and mostly Sunni Bangash communities in Kurram Agency. That “truce” was still in place. This has resulted in an “improved” security situation”.
(c) Furthermore, more than 3,700 families formerly displaced from Kurram Agency had returned to their places of origin in 2014, including to Parachinar and some of the surrounding villages in Upper Kurram. However, other families have remained outside of the area from which they were displaced.
(d) Despite the truce and the evidence that some IDPs had returned to the area,“[o]verall”, DFAT assessed that “there is a high degree of generalised violence in the FATA and a moderate risk of sectarian violence in some areas”. The situation in FATA remained “volatile”.
…”
The Applicant’s submission (referred to in paragraph 11 above) noted the reference to the “improved situation” in Kurram Agency. In this context, the Applicant’s representative submitted that the situation nevertheless remained violent and volatile. The submission referred to a bomb blast in Parachinar in December 2015, wherein people were killed or wounded, a matter also referred to by the Applicant in his statutory declaration dated 13 January 2016.
On 21 January 2016 the Applicant attended a hearing before the Tribunal. The Applicant was represented by his registered migration agent and assisted by an interpreter in the Pashto and English languages.
On 9 February 2016, the Applicant’s representative lodged a further, post hearing submission, with the Tribunal. That submission referred, amongst other things, to a more recent DFAT report published in January 2016, which the Tribunal discussed with the Applicant at the hearing and sought comment in relation to, before additionally providing the Applicant’s representative with a copy of such report. The submission noted that the mere fact that internally displaced persons had returned to their home area did not indicate that the area was safe, and that continued fighting in Federally Administered Tribunal Areas meant significantly fewer people had returned than the authorities had planned to occur. The submission also addressed further the discussion at the hearing between the Tribunal and the Applicant as to a bomb explosion in a mosque in the Phase 5 area of Peshawar where the Applicant’s brother lives and operates a business.
The Tribunal decision
By decision of 14 July 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the Applicant the visa. The Tribunal found the Applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, nor the alternative criterion in s.36(2)(aa) of the Act. The Tribunal concluded, as set out in paragraph 62 of the Statement of Decision and Reasons (‘the Decision Record’) the following:-
“For the reasons set out above, the Tribunal has not accepted there is a real chance that the applicant will face serious harm from the Taliban or other Sunni extremists in Kurram Agency for reasons of his Shia religion, Bangash ethnicity, imputed political opinion of opposition to the TTP [Tehrik-i-Taliban Pakistan, a terrorist group] and/or other extremist groups (because of his Shia religion, Bangash ethnicity and origins from Parachinar), and/or his membership of a particular social group comprising Bangash Shias from Kurram Agency if returned to Pakistan now or in the reasonably foreseeable future. Having regard to the findings of fact set out above, the Tribunal has also found that the risk of the [sic] harm to the applicant in the context of generalised violence in the FATA, and in relation to clashes between military and security forces is remote and not real. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Taliban or other Sunni extremists, government forces or anyone else as part of the generalised or sectarian violence or for any other reason as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan for these reasons.”
As evidenced in the Decision Record, the Tribunal accepted that:-
a)the Applicant was Pashtun, a Shia Muslim, and a member of the Bangash tribe;
b)the Applicant’s home region in Pakistan was Kurram Agency;
c)there had been sectarian and generalised violence in Kurram Agency since 2007 and that:-
“… on the basis of the independent information before it that the most sustained conflict in Kurram Agency since 2007 has been the violence between the Shia Turi tribe, their Shia allies and some Shia Bangash clans on the one hand and Sunni extremist groups from both Afghanistan and Pakistan on the other hand. Insurgent groups have sought to use a corridor between Pakistan and Afghanistan that passes through the Upper Kurram Agency and the majority Shia population in this area, particularly centred on Parachinar and surrounding districts, denied them this route. This subsequently resulted in violent clashes beginning in April 2007 and led to the road between Peshawar and Parachinar being closed between 2007 and 2011, causing acute shortages of essential items in Parachinar, according to observers like the Human Rights Commission of Pakistan. The violence in the area from 2007 due to the fighting and targeted attacks against Shias resulted in hundreds of deaths and large-scale displacements from Kurram Agency. The Tribunal notes the independent country information indicates that the TTP effectively cut Parachinar off from the rest of Pakistan from 2008 to 2011, with the closing of the main highway linking Parachinar to the rest of the country, thereby seriously affecting the livelihoods of those living in the Kurram Agency, and Shia populations in upper Kurram Agency in particular” ;[1]
d)the Applicant had owned and operated a tailoring business in the Punjabi Bazaar in Parachinar in Kurram Agency;
e)after the security situation deteriorated in 2007:-
“… the Taliban threw hand grenades in the Punjabi road at the end of Punjabi Bazaar and that while [the Applicant’s] shop was not damaged five people were killed as a consequence, and that there was sporadic fighting in the mountains around [the Applicant’s] village (Lukhman Khel) and this situation continued for a number of years. The applicant’s claims that roads and shops were closed, leading to food shortages, are also supported by the country information.”[2]
f)in February 2012, there was a bomb blast, for which the Taliban claimed responsibility, about 100 metres from the Applicant’s business premises and a number of people (approximately 40) were killed. The Applicant decided to leave because he felt it was not safe in Parachinar city; and
g)it was plausible that, as the Applicant claimed, there had been another bomb blast in Parachinar on the day of his departure from Parachinar, and that blast had destroyed a coach and injured 13-14 people.
[1] Decision Record dated 14 July 2016, paragraph 35.
[2] Ibid 36.
The Tribunal gave careful consideration to the extensive independent country information before it, together with the submissions and evidence of the Applicant (as set out in the Decision Record) about the security situation in Kurram Agency. The Tribunal did so in order to assess, “whether or not the Applicant faces a real chance of serious harm for reasons of his Shia religion, Bangash ethnicity, imputed political opinion of opposition to the TTP and/or other extremist groups (because of his Shia religion, Bangash ethnicity and origins from Parachinar), and/or because he is seen to be a member of a particular social group comprising Bangash Shias from Kurram Agency, if he were to return to his home village in Kurram Agency now or in the reasonably foreseeable future.”[3]
[3] Ibid 40.
The Tribunal accepted that country information indicated that Shia Muslims “in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban”.[4] The Tribunal found however that there was credible country information that there had been a sustained improvement in the security situation in Kurram Agency since a truce in 2013, and that a level of security had been restored to Kurram Agency.[5] The Tribunal noted the United Nations High Commissioner for Refugees advice from reports in 2014 which concluded that general peace had been restored in Upper and Lower Kurram Agency.
[4] Ibid 44.
[5] Ibid 53.
In particular, the Tribunal referred to and relied upon the country information as contained in the DFAT report on Shias in Pakistan, dated 15 January 2016. Importantly, in respect of this judicial review application, the Tribunal set out the evidence on which it engaged in its “substantive reasoning processes”[6] in paragraph 50 of the Decision Record as follows:-
[6] SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387, 30.
“The most recent DFAT report on Shias in Pakistan, dated 15 January 2016, also indicates that the security situation in Kurram Agency has improved, commenting that:
·According to the FATA Research Centre (‘FRC’), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015.
·The 2013 ‘peace accord’ between Shia Turis and Sunni Bangash remains in place.
·DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015.
·Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.
·More than 3,700 families returned to their places of origin in 2014, including Parachinar and surrounding villages in upper Kurram. This represents approximately 25 per cent of those formerly displaced - most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October – November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDPs) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.
·According to the SATP, there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight.
·FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.
·DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb.
·DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.
The Tribunal went on to note that:-
“Significantly, this report records a change from the previous report of April 2015 in DFAT’s assessment of both the risk of sectarian violence in the FATA (from moderate to low) and the level of generalised violence in the FATA (from high to variable throughout the FATA but low in Kurram Agency).”[7]
[7] Decision Record dated 14 July 2016, paragraph 51.
The contents of paragraphs 20 and 21 above are important because those contents show that the Tribunal understood that the “real chance” test was an objective one, not a relative one, and that it was for the Tribunal to determine “the actual level of risk in any particular place”.[8] To assist in that determination, the Tribunal considered the most recent DFAT country information which referred to a low risk of sectarian and generalised violence in Kurram Agency. The Tribunal adopted that objective assessment when considering the whole of the Tribunal’s reasoning processes, in its objective, and not relative, approach.
[8] SZVJE & Ors v Minister for Immigration & Anor [2016] FCCA 594, 20.
Additionally, in the context of the Applicant’s single ground of review, the Tribunal went on to find, at paragraphs 54 to 56 inclusive of the Decision Record, the following:-
“54. The Tribunal accepts that, as indicated by the applicant, there continues to be incidents of sectarian violence in FATA, including in Kurram Agency where the applicant’s home village of Lukhman Khel is located. The IED attack in a clothes market in Parachinar on 13 December 2015 in which at least 25 people were killed and over 70 injured, as highlighted by the applicant and his representative, is evidence of this. Nonetheless, the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable, with the exception of incidents like those referred to in the reports by the FATA Research Centre. In this context the Tribunal considers it would be premature to conclude that the attack on 13 December 2015, the first such attack in Parachinar for almost two and a half year, marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before it concerning the security situation in and around Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is not more than a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future.
55. The Tribunal accepts DFAT’s assessment regarding the risk of generalised violence in the FATA and accepts that there is some level of risk to the applicant in the context of generalised violence. However, the Tribunal finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm for reasons of his Shia religion, Bangash ethnicity, imputed political opinion of opposition to the TTP and/or other extremist groups (because of his Shia religion, Bangash ethnicity and origins from Parachinar), and/or because he is seen to be a member of a particular social group comprising Bangash Shias from Kurram Agency, or any other Convention reasons.
56. The Tribunal accepts that there continues to be clashes between militants and the security forces and occasional incidents in which civilians have been killed or injured. The Tribunal finds, however, that overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards. For reasons set out above, whilst the Tribunal accepts that the applicant is a Shia from Lukhman Khel, near Parachinar, and is of the Bangash tribe and Pashtun ethnicity, it does not accept that he has been specifically targeted or harmed by the Taliban or other Sunni extremists in the past, nor have any of his family members despite some of his family members remaining in the area. For these reasons when combined, the Tribunal finds remote the chance the applicant would be seriously harmed by the Taliban, other Sunni extremist groups, former Sunni neighbours or anyone else for reasons of his Shia religion, Bangash ethnicity, imputed political opinion of opposition to the TTP and/or other extremist groups (because of his Shia religion, Bangash ethnicity and origins from Parachinar), and/or because he is seen to be a member of a particular social group comprising Bangash Shias from Kurram Agency, on return to Kurram Agency. The Tribunal therefore finds that the applicant does not face a real chance of serious harm for a Convention reason on return to Kurram Agency now or in the reasonably foreseeable future.”
Whilst the Tribunal accepted there had been sectarian and generalised violence in Kurram Agency since 2007, based on the Applicant’s evidence and with no claim in this regard being made by the Applicant, the Tribunal nevertheless found that the Applicant had “not specifically been threatened or harmed in the past in Kurram Agency or specifically targeted by the Taliban, or any other extremist group because he is Shia, or for any other reason”.[9]
[9] Ibid 39.
The Tribunal also noted that, whilst the Applicant claimed his brother “was lucky” to avoid a bomb blast at a Shia mosque in Peshawar, the Applicant’s family members had not been directly threatened or specifically targeted by the Taliban or other militant groups in the past.
Consideration
The Applicant submitted the Tribunal erred by misunderstanding or misapplying the definition of “refugee” in Article 1A of the Refugees Convention, and therefore the visa criterion. At the time of the Tribunal decision, the term ‘refugee’ was not defined in the Act. Rather, s.36(2)(a) of the Act provided that a criterion for the grant of a protection visa was that the visa Applicant was:-
“A non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol…”
The Refugees Convention provides “protection obligations” are owed to “refugees”. Under Article 1A of the Refugees Convention, the term “refugee” shall apply to any person who:-
…
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling, to avail himself or herself of the protection of that country.”
In Chan (1989) 169 CLR 379 the High Court held that there is a well-founded fear of persecution if there is “real chance” of persecution. A “real chance” is a chance that is not “remote” or “insubstantial” or “far-fetched”. A real chance of persecution may exist even if there is less than a 50% chance of it occurring.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ further considered the “real chance” test and cautioned against its use as a substitute for the language used in the definition of the term “refugee” in the Convention. The Court stated, in relation thereto, the following:-
“Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.
No doubt in most, perhaps all, cases ..., the application of the real chance test, properly understood as the clarification of the phrase "well-founded", leads to the same result as a direct application of that phrase. Wu Shan Liang is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. In the present case, for example, Einfeld J thought that the “real chance” test invited speculation and that the Tribunal had erred because it “has shunned speculation”. If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context and his Honour's conclusions concerning the Tribunal's reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well−founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.
…
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability − high or low − of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”[10]
[10] Ibid 572, 574-575.
The Court bears in mind in its assessment of the reasons for decision of the Tribunal, that it is not appropriate for the Court to construe the reasons for the Tribunal’s decision minutely and finely with a mind keenly attuned to the perception of error. Rather, those reasons should be read fairly and as a whole.[11]
[11] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272, 291.
The Court is also guided by the decision of Justice Mansfield in SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387 at paragraph 30, wherein his Honour stated:-
“I incline to the view that greater emphasis should be placed upon the substantive part of the Tribunal’s reasoning, than upon its introductory reasoning (which is a common feature of so many Tribunal decisions) or its concluding views or its summary of its conclusions. The substantive reasoning processes are likely to be more indicative of the Tribunal’s actual reasoning processes. It is important also to have regard to the whole of the relevant reasoning processes. Selection of one or a few infelicitous expressions to demonstrate legal error would be unfair to the Tribunal, and would fall into the error which the High Court explained in Wu Shan Liang.”
The Applicant submitted the Tribunal misapplied or misunderstood the “real chance” test, and identified three ways in which this allegedly occurred:-
a)whether or not the situation in Kurram had “improved” was not determinative of the Applicant’s claim. The “real chance” test is an absolute one, not a relative one. The Tribunal must consider whether there is more than a remote or far-fetched chance of the Applicant being harmed in a particular place (the Applicant’s home area) at a particular time (the reasonably foreseeable future). Just as it is not determinative whether the risk in that place is less than it was at an earlier point in time. Yet the Tribunal’s reasons betray a reliance on evidence indicating that the situation had “improved” as justifying a conclusion that there was no “real chance” of the Applicant being affected by violence in the area;
b)the Tribunal’s statement that it was “premature to conclude” that the recent attack “marks a definite change” reflects a mistaken understanding that it was incumbent on the Applicant to prove that the foreseeable future was “definitely” going to be different and worse than a particular period of the past (2013 to 2015) which had been relatively calm;
c)the Applicant submitted the Tribunal conflated the notion of targeting with the notion of probability of experiencing harm by finding that it would be mere speculation to find that there was a real chance “any individual Shia Muslim member of the Bangash tribe” might be harmed in a terrorist attack in the future.
The Court does not accept any of those arguments. The Court considers the Tribunal relied upon and gave considerable weight to country information, which found a lowering of generalised and sectarian violence in Kurram Agency such that the “weight of the evidence” indicated a sustained improvement in the Kurram Agency resulting in the risk of both forms of violence in the Kurram Agency being low. Having regard to all the evidence before it, the Tribunal then concluded that the risk to the Applicant was “remote” with there being no “real chance” of persecution. The Tribunal not only set out the correct legal test at the outset of its reasons, but proceeded to apply it on a beneficial construction of the Decision Record.
The Court finds the Tribunal’s Decision Record does not disclose a misunderstanding or misapplication of the definition of “refugee”. It was open to the Tribunal on the evidence before it, which included the recent DFAT report upon which the Tribunal placed considerable weight, to find that it was not satisfied that the Applicant’s fear of harm was well-founded. Rather, the chance of serious harm to the Applicant now or in the reasonably foreseeable future, was remote. The Tribunal made that finding on its assessment of the evidence before it and after taking all relevant considerations into account, including the bombing in a market in Parachinar in December 2015. The Tribunal however placed greater weight on the overall peaceful situation in Kurram Agency over a period of two and a half years and DFAT’s assessment in absolute terms, of low level risk.
As submitted by the First Respondent, contrary to what is now asserted by the Applicant, the Tribunal did not impose any requisite standard of proof on the Applicant in respect of the possibility of harm in the future. Rather, the Tribunal simply did not accept that, having regard to all of the country information before it, that possibility was anything other than remote. That was a finding of fact that was open to the Tribunal on the evidence before it. In particular, the Tribunal did not require the Applicant to establish some “definite” departure from what the Applicant describes as a period of “relative quiet” or “relative calm” in Kurram Agency from 2013 to 2015.
The Decision Record does not disclose any jurisdictional error.
The application is dismissed and costs shall be awarded.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 18 September 2018
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