CHP16 v Minister for Immigration
[2020] FCCA 367
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHP16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 367 |
| Catchwords: MIGRATION – Protection visa – judicial review – whether jurisdictional error in evaluation whether applicant satisfied the refugee criterion under s 36(2)(a) of the Act by substituting a requirement that he demonstrate he was a specific target for the Taliban above other Turi Shias from the Kurram Agency – evaluation of well-founded fear of persecution – ‘real chance’ test – whether Tribunal failed to apply properly an assessment whether applicant faced a risk of harm in the foreseeable future – assessment of well-founded fear of harm is not relative – objective assessment required – predictive assessment required to be sufficiently forward looking – whether assessment mere speculation – whether conjecture or surmise – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 474, 476 |
| Cases cited: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47 AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48 BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281 CGA15 v Minister for Home Affairs [2019] FCAFC 46 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 Craig v South Australia (1995) 184 CLR 163 CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Tanji v Minister for Immigration [2001] FCA 1100 |
| Other texts cited: Hathaway and Foster, The Law of Refugee Status, 2nd Ed (2014) |
| Applicant: | CHP16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1776 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 4 February 2020 |
| Date of Last Submission: | 4 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Dr A McBeth |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondents: | Mr J Barrington |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 20 December 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1776 of 2016
| CHP16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 20 December 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 18 July 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow, I have concluded that the application should be dismissed. In summary, I have concluded that the Tribunal did not commit jurisdictional error in the evaluation whether the applicant satisfied the refugee criterion under s 36(2)(a) of the Act by substituting the criterion with a requirement that he demonstrate he was a specific target for the Taliban above other Turi Shias from the Kurram Agency. Nor did the Tribunal fail to properly apply an assessment whether the applicant faced a risk of harm in the foreseeable future.
Background
On 9 August 2012, the applicant, who is a male Pakistani citizen and member of the Turi tribe and Shia religion aged 32 years, first came to Australia via Christmas Island as an irregular maritime arrival.
On 19 December 2012, the applicant applied for the visa and provided copies of his identification cards and a statutory declaration dated 12 December 2012 in which he stated that:
a)he was born in Bilyamin village near Alizai in Lower Kurram Agency;
b)his father owned 60 Jeribs of land spread over four areas in Kurram Agency on which he employed 10-15 workers, growing wheat, rice, corn and other vegetables;
c)he led a comfortable life until 2007, when the Taliban became active in the region and occupied his family’s farm;
d)in May 2008, his uncle was beheaded by the Taliban in Sada City;
e)in August 2008, whilst he was attending university in Peshawar, his father moved the rest of his family to Parachinar, but in the course of that journey his 18 year old cousin had been killed;
f)his father, who later moved back to Bilyamin, died of a suspected heart attack;
g)as all of the roads to Kurram Agency were blocked by the Taliban, he was stranded in Peshawar;
h)in July 2010, he abandoned an attempt to return to Kurram Agency when his own bus and a government convoy were attacked;
i)after this incident, he attended student protests at Government House in Peshawar, after which he received various threats.
On 23 October 2013, the applicant attended an interview with a delegate of the Minister. On 29 August 2014, the delegate refused to grant the visa application. The delegate considered the applicant’s claims to protection and concluded that the harm feared was serious, systemic and discriminatory harm. However, the delegate concluded that the harm feared was not well-founded on the basis that the applicant could reasonably relocate within Pakistan to Peshawar, Islamabad, Rawalpindi, or Karachi. The delegate also considered the complementary protection criterion and found that although the harm claimed by the applicant was significant harm, there were not substantial grounds for believing that the applicant would be subject to significant harm as a necessary and foreseeable consequence of him returning to Pakistan. In summary, the delegate was not satisfied that Australia owed protection obligations to the applicant under s 36 of the Act, and refused to grant him a visa.
Tribunal’s decision
On 4 September 2014, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 10 February 2016, the Tribunal invited the applicant to attend a hearing on 9 March 2016 to give evidence and present arguments relating to the issues arising on the decision under review.
On 4 March 2016, the applicant’s migration agent provided the Tribunal with pre-hearing submissions. Attached to the submissions was a statutory declaration affirmed by the applicant on 2 March 2016, in which he provided additional details about why he returned to Peshawar after his convoy had been attacked in July 2010. The applicant further deposed that in either June or July 2009, he was travelling on a bus from Quetta to Peshawar which was attacked and at least one person died, and that due to a fear of Taliban members infiltrating his university there were nights when he left his university accommodation to hide in nearby bushes. These incidents had left the applicant feeling scared at the lack of safety in Pakistan. The migration agent submitted that the applicant was owed protection obligations because he faced persecution from the Taliban due to his Shia religion, Turi ethnicity, his imputed political opinion and his membership of the particular social group “Turi Shias from Kurram Agency”. The submissions also provided country information extracted from the DFAT Thematic Report titled “Shias in Pakistan”, dated April 2015.
On 9 March 2016, the applicant attended the Tribunal hearing with the assistance of his migration agent, a Pashto interpreter and a friend.
On 23 March 2016, the applicant’s migration agent provided the Tribunal with post-hearing submissions upon: (1) the correct test to be applied when assessing the level of risk to the applicant; (2) a proposition that the return of internally displaced persons in Pakistan to an area did not indicate more than a basic, and possibly temporary, improvement in the general security situation; (3) a claim that Shias were not safe anywhere in Pakistan; (4) military operations against the Taliban not being as successful as was claimed and, for as long as the Taliban maintained a strong presence in Pakistan, it would remain unsafe for the applicant to return.
On 18 July 2016, the Tribunal affirmed the delegate’s decision to refuse the visa application, providing a statement of its reasons for doing so (Reasons). The Tribunal provided a brief background of the application, set out the relevant legislation and recognised its obligation to pay regard to relevant guidelines and country information: [1]-[10].
The Tribunal then set out the applicant’s claims for protection, his pre-hearing submissions, his evidence and his post-hearing submissions: [11]-[37]. In doing so, the Tribunal identified the country information to which it had made reference, including that which had been relied upon by the applicant in advancing his claims to protection: [17]-[18].
The Tribunal set out its findings, assessed the applicant’s claims and:
a)accepted that the applicant was born in Bilyamin village in Kurram Agency, was a member of the Turi tribe and was of Shia Muslim religion: [41];
b)accepted the applicant’s claims regarding the security situation in Kurram Agency in 2007: [42];
c)accepted the applicant’s claims that he was based in Peshawar between 2006-2011 and, whilst studying at university, that the Taliban had occupied his family’s farmland: [43];
d)accepted the applicant’s claims that in July 2010, the bus on which he was travelling from Quetta to Peshawar had been fired upon and boarded by men whom he suspected were Taliban, and that he then abandoned his journey after a government convoy (travelling in the opposite direction) was attacked by the Taliban: [44];
e)accepted the applicant’s claims that he participated in student protests and that he received subsequent death threats from the Taliban: [45];
f)accepted that his uncle and cousin were killed in generalised incidents of anti-Shia sectarian violence in areas which were either directly under attack, or occupied, by the Taliban: [43], [47].
In particular, the Tribunal considered the claim that the applicant was at greater risk because of his profile as an educated person who was known to the Taliban and had spoken out against them. It found that although he was an educated person, he did not have a profile as a prominent educated or professional person which would make him a specific target apart from other Turi Shias from Kurrum Agency: [46]-[47].
Further, after considering a 2016 DFAT country report on Pakistan and the applicant’s claims individually and cumulatively, it did not accept that his time in Australia would place him at higher risk than other Turi Shias: [48].
The Tribunal considered independent country information about the security situation in Kurrum Agency when assessing whether or not the applicant faced a real chance of serious harm if he were to return to his home village in Kurrum Agency: [49]. In doing so, the Tribunal:
a)considered country information provided by the applicant regarding continuing sectarian violence and attacks throughout Pakistan, and his submission that relocation was not an option: [50]-[52];
b)considered the applicant’s submission that the return of internally displaced persons “cannot be taken to indicate more than a very basic, and possibly temporary, improvement in the general security situation”: [53];
c)accepted country information that Shia Muslims in general risked being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban, and that Shia Muslims from the Kurrum Agency in particular were widely recognised as opposing the Taliban: [54];
d)concluded that there had been a decline in sectarian and generalised violence in Kurrum Agency: [55]-[62];
e)examined the applicant’s submissions regarding the durability of the improved security situation and his concerns that the Pakistan government was not acting to remove the Taliban from Kurrum Agency, but found that it was not supported by country information. It acknowledged that the situation “can change and fluctuate”, but the weight of current country information indicated that:
. . . a level of security has been restored to Kurrum Agency and general peace restored, to the extent that there is not a real chance that the applicant would suffer persecution amounting to serious harm from the Taliban or other anti-Shia extremist groups or associated groups if he returned to Kurrum Agency. [63]
f)accepted that there had been incidents of sectarian violence in the Kurrum Agency and that an IED attack at a clothes market in Parachinar had killed at least 25 people in 2015; but that it would be speculation to regard the incident as marking a definite change and deterioration in the security situation such there was a real chance that any individual Shia Muslim member of the Turi tribe (including the applicant) would be killed or injured in such a terrorist attack in the reasonably foreseeable future: [64];
g)found that on the basis of the evidence before it, the risk to the applicant was remote and did not accept that there was a real chance he would be targeted for harm for reasons of his Shia religion, Turi ethnicity, imputed political opinion, his origins from Parachinar, or his extended presence in Australia, because he was seen as a member of a particular social group comprising Turi Shias from Kurrum Agency, or for other Convention reasons: [65]-[68].
The Tribunal found that the applicant was not a person to whom Australia owed protection obligations or complementary protection and affirmed the decision to refuse to grant the visa: [68]-[76].
Procedural history
On 19 August 2016, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by his solicitor to which he exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.
By a Response filed on 9 September 2016, the Minister opposed the application on the stated basis that it invited the court to impermissibly review the merits of the Tribunal’s decision, and failed to establish any jurisdictional error in the Tribunal’s decision.
On 15 February 2017, orders were made, by consent, listing the matter for final hearing.
On 20 December 2019, the applicant filed an amended application for judicial review by which he deleted the original grounds of review and substituted two new grounds. The applicant also filed an affidavit affirmed by his solicitor which exhibited a copy of a DFAT Thematic Report dated 15 January 2016 entitled “Shias in Pakistan”.
Judicial review
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[5]
[5]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
The amended application for review contained two grounds of review.
Ground 1 – failure to exercise jurisdiction – well-founded fear
Ground 1 of the amended application reads:
The Tribunal constructively failed to conduct the review required by statute, in that it applied the incorrect test for whether the applicant faced a real chance of serious harm.
Particulars
a) The Tribunal misapplied the real chance test by effectively requiring that the applicant be “a specific target for the Taliban above other Turi Shias from Kurram Agency” in order to satisfy the test.
b) The Tribunal failed to consider that the applicant may face a real chance of serious harm for a Convention reason even if other members of the community faced a similar chance of harm.
The Applicant relied upon the Tribunal’s statement at [47] of the Reasons, in which the Tribunal stated:
. . . the Tribunal concludes that the threat letter and text messages were generic threats intended to intimidate the Turi Shia students living in Peshawar as a whole and that they do not indicate that the applicant has a profile that would make him a specific target above other Turi Shias from Kurram Agency. Based on the totality of the available evidence, considered individually and cumulatively, the Tribunal concludes that the applicant does not have a profile that makes him a specific target for the Taliban above other Turi Shias from Kurram Agency, and that the applicant is not on a Taliban ‘hit list’. (emphasis added)
In substance, the applicant contends that the Reasons at [47] demonstrate the Tribunal misapplied the test for assessing whether the applicant satisfied the definition of ‘refugee’.[6] The applicant accepted that while the Tribunal correctly set out at [6]-[9], the test for a protection visa under s 36(2)(a) of the Act, it had not been correctly applied.
[6] Refugee’s Convention, Article 1A(2); cf now Act, s 5H.
Counsel for the Minister contended it to be uncontroversial that the ‘real chance’ test was to be conducted objectively by reference to the circumstances of the individual applicant, and that the issue raised by Ground 1 was whether the Tribunal correctly applied the refugee criterion by applying the ‘real chance’ test to the applicant’s claims. It was submitted that the impugned statement at [47] must be read in its proper context and that, read fairly, it was clear the Tribunal did not misapply the test posed by s 36(2)(a) whether the applicant faced a real chance of harm for the reasons which he claimed.
It is well established that the Tribunal may fall into jurisdictional error if it asks itself the wrong question.[7] It is also settled that although a Tribunal may identify the applicable legal test, and answer that question which in terms recites the test accurately, the decision may be amenable to judicial review if it can be shown that the test was not in fact so applied. In CGA15 v Minister for Home Affairs, the Full Court held:[8]
The mere fact that a decision-maker expresses his or her ultimate conclusions in terms which reflect the visa criterion (as the Tribunal did in this case) does not definitively show that it applied the correct test. In many cases the substantive part of the decision-maker’s reasons, rather than recitations in the introduction or conclusions, will be a more reliable guide as to whether the Tribunal applied the correct test. It is the reality not the appearance which matters.
See also Minister for Immigration and Ethnic Affairs v Guo Wei Rong.[9]
[7]Craig v South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Dawson, Gaudron and McHugh JJ); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82] (McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing).
[8] [2019] FCAFC 46, [26].
[9](1997) 191 CLR 559, 577 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), 595 (Kirby J), each citing Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, 483 (Gibbs J).
Relatedly, there are cases where the reasons may indicate that jurisdictional error was committed because the decision-maker had wrongly narrowed the question which had to be considered.[10]
[10]See, eg, Tanji v Minister for Immigration and Multicultural Affairs [2001] FCA 1100, [12] (Tamerlin J).
Ground 1 was focussed upon the Tribunal’s conclusion at [47], that “the applicant does not have a profile that would make him a specific target for the Taliban above other Turi Shias from Kurram Agency.”
An evaluation of Ground 1 requires that the matters stated in the Reasons at [47] be read in proper context. Relevantly, the Tribunal:
a)accepted that the applicant had to abandon a trip from Peshawar to his home in Alizai, Kurram Agency, in July 2010 when: (i) a bus on which he had been travelling was fired upon and then boarded by persons he suspected to be members of the Taliban; (ii) a government convoy travelling in the opposite direction had been attacked and 18 people, all Shia, were killed: [44];
b)accepted that, as a student, the applicant had joined protests – mounted by the Shia Turi and Bangash students from the Kurram Agency – conducted at Government House in relation to a failure by government to provide security to enable safe passage on the road from Peshawar and Parachinar: [45];
c)noted country information which confirmed that such protests had been held in April and May, 2011: [45];
d)accepted that some passing Sunnis had made derogatory comments to the assembled student protestors: [45], [47];
e)accepted that when the applicant returned to Peshawar from a major protest at Islamabad, he received letters from the Taliban and text messages, threatening harm: [45], [47];
f)concluded that the letters and texts were generic threats intended to intimidate Turi Shia students as a whole: [47];
g)accepted that those letters and text messages had been received by Turi students at the university (being about 80 in number: [12]), and that those communications were generic in nature: [45], [47];
h)noted that the applicant had lived at the university from 2006 to 2011, and again in 2012, and that the Taliban had not acted on those threats over that period or otherwise specifically targeted him: [47].
The Tribunal noted that such letters had been directed at all Turi students at the applicant’s university in Peshawar and that such text messages (which had been sent to a smaller subset of Turi students, including the applicant), stated that “all the Turi and Shia people would not be safe, no matter where they went in Peshawar or Pakistan in general.”: [47].
The Tribunal considered DFAT country information that acknowledged a low risk of sectarian violence for most Shias in Pakistan and a moderate risk threat of violence for prominent Shias such as high-profile professionals: [47]. Consistently with his evidence, it concluded that the applicant did not have a profile that would make him a specific target for the Taliban above other Turis from the Kurram Agency: [47]. Those reasons may be understood in context as indicating the applicant did not have a profile such as to attract a moderate risk of sectarian violence.
In addition, the Tribunal did not accept that the applicant was placed at greater risk than other Turis for having resided in Australia. Nor did it accept that he was at a greater risk of harm from other Turi Shias from Kurram Agency because of his education, his activities in joining protests, for having lived in Australia or otherwise: [48].
Finally, having made those findings, the Tribunal proceeded to examine country information at [49]-[67] in determining whether he faced a real chance of serious harm. It found that he did not: [68].
The applicant submitted that in assessing the risk of harm, based on the accepted evidence that he had received threatening letters and text messages from the Taliban, the Tribunal erred in introducing a comparative element into the test; that is, whether the applicant was at greater risk of harm than other people who were Turi Shias from Kurram Agency. It was submitted that the assessment of the ‘real chance’ test pursuant to the Refugees Convention was to be conducted by reference to the circumstances of the individual applicant and that the test was whether the applicant had a genuine subjective fear of persecution for a Convention reason, and if so, whether that fear of persecution was objectively well-founded, in the sense that there was a real (more than remote or far-fetched) chance that the persecution may occur, even if that chance was less than 50 per cent.[11]
[11]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 389, 398, 407, 429.
The applicant further submitted that the test was not a relative one, but required an objective assessment as described above.[12] In CGA15 v Minister for Home Affairs,[13] Murphy, Mortimer and O’Callaghan JJ held:
The test of whether there is a real chance that an applicant for protection will suffer harm in a place is not a relative one, and it is not determinative whether the risk in one place is less severe than another place. It is plain that the mere fact that a person might be safer in place B than place A does not entail that the person does not face a real chance of persecution in place B. For example, if place A is very unsafe and place B is relatively safer it might still be the case that a person faces a real chance of serious harm in place B. What matters is the actual level of risk in any particular place: see CID15 at [35]. We respectfully agree with the approach taken by Moshinsky J.
While this analysis was concerned with the relative risk of harm in more than one location, in this case, the applicant sought to apply the concept as denying the relevance of the relative harm that might be suffered by persons of the same ethnicity in the assessment of well-founded fear.
[12]CID15 v Minister for Immigration and Border Protection [2017] FCA 780, [35] (Moshinsky J).
[13] [2019] FCAFC 46, [23].
Shortly afterward, in AKH16 v Minister for Immigration and Border Protection[14] and AON15 v Minister for Immigration and Border Protection,[15] a Full Court considered two appeals, each raising for consideration whether the same Tribunal had correctly applied nuanced aspects[16] of settled principles upon the criteria for a protection visa. The then applicable definition of ‘refugee’ in the Refugees Convention, as incorporated into s 36(2) of the Act, turned upon whether a person had a ‘well-founded’ fear of persecution based upon designated grounds. Middleton and Mortimer JJ (Besanko J agreeing generally), identified that the content of the expression ‘well-founded’ had been considered by the High Court in Chan v Minister for Immigration and Ethnic Affairs[17] and Minister for Immigration and Ethnic Affairs v Guo Wei Rong.[18] In Chan, Mason CJ agreed with McHugh J that a fear of persecution was well-founded if there was a ‘real chance’ the applicant would be persecuted.[19] Chan was important as recognising that a fear of persecution could be well-founded if the applicant was shown to have a real or substantial (as distinct from remote or insubstantial) chance and, accordingly, that a fear could be well-founded, notwithstanding there was a less than 50% chance of persecution occurring. The High Court confirmed that the expression ‘well-founded’ had both a subjective and objective content.
[14] [2019] FCAFC 47.
[15] [2019] FCAFC 48.
[16] See, eg, AON15, [2019] FCAFC 48, [31], [52] (Middleton and Mortimer JJ).
[17] (1989) 169 CLR 379.
[18] (1997) 191 CLR 559.
[19](1989) 169 CLR 379, 389; see also at 396-398(Dawson J), 406-407 (Toohey J), 415 (Gaudron J), 429 (McHugh J).
In AKH16[20] and AON15,[21] Middleton and Mortimer JJ observed that, by contrast, in Guo, the High Court emphasised that the Convention definition of refugee contained no reference to a ‘real chance’ of persecution and reiterated that the use of that phrase was to invite error.[22] The Court’s warning that the substitution of a ‘real chance’ test for the expression ‘well-founded’ when assessing a fear of persecution’ was perhaps notable inasmuch that each of Dawson, Toohey, Gaudron and McHugh JJ were members of the Court in each of Chan and Guo.
[20] [2019] FCAFC 47, [39].
[21] [2019] FCAFC 47, [41].
[22]Guo (1989) 191 CLR 559, (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); cf AKH16, [2019] FCAFC 47, [39]; AON15, [2019] FCAFC 48, [41].
In AKH16[23] and AON15,[24] Middleton and Mortimer JJ further observed that despite the caution in Guo, the ‘real chance’ test was still commonly employed, both in Tribunals and Courts, and could lead to difficulty. Their Honours noted that the adjectival qualification in the expression ‘well-founded’ emphasised “the requisite sufficiency of the objective basis for a person’s fear; namely, a level which justifies another contracting State being required to offer surrogate protection to that person.”[25] The plurality also contrasted the content of the expression ‘well-founded’ in other jurisdictions as variously employing the language of “possibility”; “reasonable possibility”; “a reasonable degree of likelihood” or “a real and substantial risk of persecution”, and; “serious possibility”. Middleton and Mortimer JJ also cautioned of the too ready adoption of “remote” stating “it would not be correct to use ‘remoteness’ as suggesting that to be well-founded, the harm feared by a person must be of an immediate or direct nature.”[26] Their Honours accepted that the assessment required speculation about the future:
At all times the decision-maker must look to the individual applicant’s circumstances to determine whether that applicant, in the circumstances to which she or he will return to her or his country of nationality, has a well-founded fear of persecution. Further, in considering whether the fear is well-founded, the Court must consider the totality of the circumstances. We do not think these matters are controversial . . .
[23] [2019] FCAFC 47, [40].
[24] [2019] FCAFC 48, [42].
[25] See, eg, AON15, [2019] FCAFC 48, [45]
[26] See, eg, AON15, [2019] FCAFC 48, [44-[48]]
While Ground 1 and the applicant’s submissions were framed in terms of a ‘real chance’ test, I understood it to have been employed, in a short-hand way, to mean a ‘well-founded’ fear of persecution.
In the present case, the Tribunal was required to assess whether there was a ‘real chance’ that the applicant would face persecution for a Convention reason – which, in this case, could be one or more of his Turi ethnicity, Shia religion, actual or imputed anti-Taliban political opinion or membership of the particular social group of “Turi Shias from Kurram Agency”. It was submitted that the question of whether others with some or all of those characteristics would also face a real chance of serious harm was not relevant to the Tribunal’s assessment and that, to be entitled to protection, there was no requirement for an applicant to be a specific individual target of harm, or that he be at a higher risk of harm than others with similar characteristics in the same area. The applicant submitted that by importing a comparative element into its assessment, the Tribunal had applied an erroneous standard to the real chance test and had thereby asked the wrong question and fallen into jurisdictional error. The applicable principles were recently summarised in CGA15:
The question as to whether the Tribunal's reasons disclose a misunderstanding or misapplication of the “real chance” test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). The Court’s focus must be whether having regard to the Tribunal’s reasons in this case it is more probable than not that the Tribunal misunderstood or misapplied the test. The appellant has the onus to show jurisdictional error: Minister for Immigration and Border Protection v SZMTA[2019] HCA 3 at [4] and [41] (SZMTA) (Bell, Gageler and Keane JJ).
In oral argument, counsel for the applicant retreated from a submission that it was irrelevant for the Tribunal to have considered the position from the perspective of the nature of the threat faced by Turi Shias; but submitted that the question posed by s 36(2)(a) was whether the specific individual faced a real chance of harm, not whether he faced no different level of harm from others like him. For that reason, the applicant criticised the statement at [47] which described the risk in terms of whether the applicant’s profile was such as to make him a specific target for the Taliban above other Turi Shias from the Kurram Agency. The applicant complained that for the Tribunal to have imported a requirement to assess whether the risk faced by the applicant was above that faced by other Turi Shias from the Kurram Agency, would have, in effect, ‘raised the bar’ in a way not authorised by s 36(2)(a) of the Act. It was said that the reasoning at [48] served to provide two examples illustrating that the Tribunal had erroneously applied the test in this way.
I do not accept that the Tribunal failed to apply the test posed by s 36(2)(a) in the manner suggested by the applicant. When those reasons are read in the context of the matters addressed in the Reasons at [44]-[48], I do not agree that the Tribunal grafted a requirement onto the applicable criterion in a way which lifted the bar posed by that test. Instead, the Tribunal properly identified a claim by the applicant that he faced a real chance of harm by reason that he was a Turi Shia with the profile of an educated person who had attended protests as described.
Read fairly, the Reasons confirm that the Tribunal gave proper consideration to his claims and accepted a great many of them. In doing so, the Tribunal examined the nature of the applicant’s profile as an educated person, weighing it against DFAT information which supplied a basis for concluding that, as he did not have a profile as a prominent Shia or a high-profile professional (and had not spoken out against the Taliban), he faced the low risk of sectarian violence which applied to most Shias across Pakistan. It did not accept that he faced the moderate threat of violence which prominent Shias or high profile professionals might face. It considered the letters and texts, concluding that the communications which had been promulgated across his university (including to him, amongst a cohort of some 80 Turi Shias), were generic in nature and were not specifically targeted at him. It also rejected a submission that the fact of the applicant having spent time in Australia would place him at particular risk.
The Reasons at [49]-[65] confirm that the application of the ‘real chance’ test by the Tribunal to the applicant’s claims was not assessed relative to other Turi Shias from Kurram Agency[27] and that, as the consideration of the question proceeded beyond the matters addressed at [44]-[48], there was no misapplication of the refugee criterion contained in s 36(2)(a) of the Act. The Tribunal’s consideration of country information at [49]-[67] was clearly directed to an assessment of whether the applicant faced a well-founded fear of harm for a convention reason.
[27]AON15 [2019] FCAFC 48, [72]-[77] (Middleton and Mortimer JJ).
In AON15,[28] Middleton and Mortimer JJ held that there was no jurisdictional error in the manner in which a Tribunal had reasoned along the way in forming a view about the risks which an applicant faced in circumstances where it had made a finding of exposure to generalised violence but that the applicant had not faced a personal exposure to being targeted for persecution.
[28] AON15, supra [2019] FCAFC 48, [71]-[75]; cf [6]-[7] (Besanko J).
An attempt was made to distinguish the facts of AON15 from the present case on the basis that the decision-maker there was there concerned to assess the risk of harm to an applicant being caught up in generalised or indiscriminate violence (the Tribunal having found that the violence was not directed specifically at the applicant by any group or individual[29]). It was emphasised that it had been in the context of a finding of exposure to generalised violence, and not a personal exposure to being targeted that the Full Court had held there was no jurisdictional error in the manner in which the Tribunal had reasoned along the way in forming a view about the risks which he faced.[30] It was said that in this case, the applicant was within a sub-set of Turis who faced harm because he was one amongst a group of 80 students who had received, not merely the letters containing threats, but the text messages also. While this was admittedly a subset of those students who had also received letters containing threats, the Tribunal concluded that the threats were generic and not targeted at the applicant. It was noted that the applicant had not been targeted during the whole of his stay at the university hostel: [47]. Each of those findings was open.
[29] See AON15, supra [2019] FCAFC 48, [66].
[30] AON15, supra [2019] FCAFC 48, [71]-[75]; cf [6]-[7] (Besanko J).
Counsel for the Minister conceded for the purposes of argument that, had the Tribunal reasoned in terms at [47] that the applicant did not face a real chance of harm above other Turi Shias, this would have entailed jurisdictional error. In making that concession, attention was drawn to Hathaway and Foster, The Law of Refugee Status[31] who explained that there was no legal basis for a ‘particularised evidence rule’ whereby it is said that a claimant must be able to show that he or she has been singled out for persecution of a kind that differs from those suffering widespread turmoil. Hathaway and Foster demonstrate the need to assess whether the applicant’s particular circumstances support the conclusion of a well-founded fear of persecution within the context of generalised risk.
[31] Hathaway and Foster, The Law of Refugee Status, 2nd Ed (2014), [2.9] at pp.175-176.
Two categories were identified as falling within such a supposed rule. First, the learned authors explained in detail that while refugee law was concerned only with protection from persecution tied to one or more of the Convention grounds, it is necessary to examine the circumstances of the individual claimant and not to allow this requirement to be confused by “some erroneous notion that refugee status must be based on a completely personalized set of facts.”[32] Secondly, Hathaway and Foster considered an alternative basis on which this rule might be invoked as upon a mistaken extrapolation of a principle that persons at risk of generalised, indiscriminate forms of harm are not refugees.[33] As to this second category, the learned authors explained that while the victims of wide-spread disaster do not ordinarily qualify for refugee status, it was not because of the widespread nature of the impact of such events; rather, it was because of the non-discriminatory nature of the exposure to harm:
Because refugee law is concerned only with protection tied to a claimant’s race, religion, nationality, membership of a particular social group, or political opinion, those impacted by natural calamities, weak economies, civil unrest, and even generalised failure to adhere to basic standards of human rights are not by that fact alone entitled to refugee status.
That having been said, refugee law does extend protection even in those situations where there is some element of risk based on one of the five enumerated forms of civil or political status. If the harm is both sufficiently serious and impacts persons by reason of their civil or political status, then a claim to Convention refugee status is made out, however many people are similarly affected.[34]
[32] Ibid, [2.9] at pp.175.
[33] Ibid, [2.9] at pp.175.
[34] Ibid, [2.9] at pp.175.
The application of those principles were considered in AON15.[35] While the Full Court accepted the need to consider whether generalised violence meant that a claimant faced a real chance of harm,[36] and that reasoning which failed to recognise the need to assess his or her particular circumstances in the context of a generalised risk would be erroneous, it held that the challenge failed to pay sufficient attention to the entirety of the decision-maker’s reasoning. The plurality discerned no error in the Tribunal’s analysis in making factual findings on the material before it about the nature of the risk faced by the appellant; finding that the level of risk if returned to the Upper Kurram Agency region – albeit the same as others – was at a remote level. Their Honours held that this entailed no misunderstanding of the concept of well-founded fear. Besanko J agreed generally.
[35] [2019] FCAFC 48.
[36] AON15, supra [2019] FCAFC 48, [6] (Besanko J), [74] (Middleton and Mortimer JJ).
Contrastingly, on the facts of the present case the Tribunal had reasoned that the applicant did not have a profile that made him a specific target for the Taliban above other Turi Shias from the Kurram Agency. This finding was open on the evidence. But the reasoning did not stop there. Having reached that conclusion, the Tribunal proceeded to evaluate country information in particular detail before finally reaching the conclusion at [68] that the applicant did not face a ‘real chance’ of harm.
I do not accept that the description of the applicant’s profile as making him a specific target over and above those of other Turis from the Kurram Agency indicates that the test was misapplied. I accept that the impugned finding at [47] was not the expression of a conclusion upon whether the applicant faced a ‘real chance’ of harm but was a step along the way to the formation of a view about the nature of risks faced by the applicant.[37] So much is apparent from the fact that the Tribunal proceeded at [49]-[67] to examine a raft of country information before concluding at [68] that the applicant did not face such a risk. I am not persuaded that the Tribunal assessed the risk of harm that the applicant may face on a relative, rather than an objective, basis.
[37]See AON15, supra [2019] FCAFC 48, [75] (Middleton and Mortimer JJ).
Ground 1 is rejected.
Ground 2 – failure to exercise jurisdiction – predictive assessment
Ground 2 of the amended application reads:
The Tribunal constructively failed to conduct the review required by statute in failing to assess the risk of harm in the foreseeable future.
Particulars
a) The Tribunal assessed the level of risk in the applicant’s home area of Kurram Agency as at the date of the Tribunal decision.
b) The Tribunal declined to determine whether a terrorist attack in the area in December 2015 constituted a deterioration in the security situation on the ground that “it would be mere speculation” to do so.
c)The Tribunal’s failure to consider the foreseeable future beyond the immediate term constituted jurisdictional error.
The Tribunal found at [64]:
The Tribunal accepts that there continue to be incidents of sectarian violence in FATA, including Kurram Agency where the applicant’s home village of Bilyamin 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 is evidence of this.
It then observed that there had been a significant and sustained improvement in the security situation in the Kurram Agency since 2013-2014. A little later in [64] the Tribunal stated:
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 Turi tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.
In substance, the applicant contended that the Tribunal’s reasoning in that passage was unduly narrow.
Again, the parties were in agreement as to the applicable legal principles.
In applying the ‘real chance’ test, a Tribunal must assess the risk of harm into the future.[38] The decision-maker must assess whether there is a ‘real chance’ that the applicant will suffer serious harm in the foreseeable future after the person is removed to the receiving country.[39] The test for whether a person has a well-founded fear of persecution is forward-looking. It was common ground that past events may be relevant to determining future risk, but that they were not determinative.[40]
[38]AKH16 [2019] FCAFC 47, [48] (Middleton and Mortimer JJ). See also, Minister for Immigration and Ethnic Affairs v Guo Wei Rong(1997) 191 CLR 559, 571-572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
[39]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [47] (Brennan CJ, Toohey, McHugh and Gummow JJ)
[40]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
Thus, the assessment of the real chance of harm necessarily involves speculation about the likelihood of the feared events occurring in the future.[41] In AKH16 v Minister for Immigration and Border Protection[42] Middleton and Mortimer JJ held that “the assessment of whether a person fears persecution on return to her or his country of nationality, must involve speculation about the future, and an assessment of the period of time to look into the future.” Their Honours’ reasoning may be understood as emphasising the fundamental distinction between the imperative requirement to engage in the predictive task of assessing whether, objectively, the visa applicant has a well-founded fear of persecution, from simply engaging in conjecture or surmise.
[41]CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134, [23] (and the authorities there referred to) (Tracey, Mortimer and Moshinsky JJ).
[42] [2019] FCAFC 47, [48].
As to the period of time into the future that is to be assessed, in CPE15 v Minister for Immigration and Border Protection Mortimer J held:[43]
. . . the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is “foreseeable” or “reasonably foreseeable”.
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience.
Those principles were endorsed in AKH16 and AON15.
[43] [2017] FCA 591, [59]-[60].
Upon those principles, the applicant submitted that a narrow focus on past and present harm without adequate consideration of the risk of harm into the foreseeable future would give rise to jurisdictional error for failure to perform a core function of review, being a predictive task when assessing the question of relocation.[44]
[44] The applicant cited BXN16 v Minister for Immigration [2019] FCCA 2820, [70].
In the present case, the Tribunal considered country information as to the security situation in Kurram Agency and the broader Federally Administered Tribal Areas (FATA) over the period 2012-2015.[45] The most recent information before the Tribunal was the DFAT Thematic Report on Shias in Pakistan, dated 15 January 2016. That report assessed as low, the risk of sectarian violence and generalised violence in Kurram Agency.[46] However, the Tribunal acknowledged that a security situation could fluctuate and noted that a December 2015 terrorist attack in Parachinar illustrated “an element of vulnerability in the government security measures.”[47]
[45] Reasons, [50]-[63].
[46] DFAT Thematic Report on Shias in Pakistan, dated 15 January 2016, [4.36].
[47] Reasons, [63]; DFAT Thematic Report on Shias in Pakistan, dated 15 January 2016, [4.33].
The Tribunal then made the further finding at [64] which is set out above.
The applicant complained that despite the acknowledgement in [64] that there had been incidents of sectarian violence in FATA, including in the Kurram Agency, the Tribunal had relied on the assessment of levels of risk as at the January 2016 DFAT report when finding at [65] that the applicant did not face a ‘real chance’ of serious harm. It was submitted that, when pressed to consider the fluctuating nature of security and violence in the relevant area of Pakistan in assessing the risk of harm in the foreseeable future, the Tribunal declined to do so on the ground that this would be a matter of mere speculation.
The applicant submitted that the Tribunal’s reasoning in that passage was unduly narrow in two respects.
First, it was said that the Tribunal’s enquiry was whether, up to the date of the decision, there had been a deterioration in the security situation. When invited to consider whether the terrorist attack of December 2015 indicated a reason to find that the security situation into the future was uncertain and fluctuating, such that the applicant might face a greater risk of harm into the future, at [64] the Tribunal declined to do so on the ground that it would be mere speculation. It was submitted that in so doing, the Tribunal abdicated a core aspect of its review function. It was said that it had focused on a narrow period of time, being the time immediately prior to the most recent DFAT report that was before the Tribunal and that in doing so, the Tribunal failed to direct its attention to the predictive, forward-looking task required of it. It was correctly submitted that the use of the verbal formulation “foreseeable future” in the Tribunal’s conclusion would not cure error if the assessment actually conducted was not in fact sufficiently forward-looking.[48]
[48] CGA15 v Minister for Immigration [2019] FCAFC 46, [26].
Secondly, it was said that the Tribunal applied an unduly narrow approach in that it focused only on whether the applicant might be harmed by a repeat of the December 2015 terrorist attack. It was submitted that in the context of assessing the risk from sectarian or generalised violence in Kurram Agency being the focus of [50]-[67] of the Reasons, the recent terrorist attack assumed a greater significance. The applicant submitted that the issue was not only whether the applicant might be injured by a repeat attack, but whether the fact of the attack was an indicator that there might be an increased risk of sectarian or generalised violence into the future.
It was submitted that the failure of the Tribunal to consider that issue amounted to a failure properly to complete its assessment of the risk of harm in the reasonably foreseeable future, and therefore a failure to complete the review required of it by statute.
Counsel for the Minister submitted that the way in which Ground 2 had been framed mischaracterised the Tribunal’s reasoning.
The Tribunal considered that the indications from country information were that the security situation was relatively stable and considered it would be premature to conclude the 13 December 2015 attack – the first attack for almost two and a half years – marked a definite change in the security situation. The Tribunal then cited Minister for Immigration and Ethnic Affairs v Guo Wei Rong,[49] as holding that conjecture or surmise played no part in the determination whether a fear was well-founded, and that a fear of persecution was not well-founded if it was mere speculation. It then made the finding at [64] which is set out above.
[49](1997) 191 CLR 559, 572 (per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
The Tribunal’s reference to Guo indicates that it was conscious of the applicable legal principle and that a distinction was to be drawn between “making a finding as to whether or not an event might or might not occur in the future” and that “conjecture or surmise has no part to play in determining whether a fear is well-founded.”[50] As was held in Guo, no criticism can be made of the use of the term ‘speculation’ when used in the former sense, but it is erroneous when the term is used in the sense of allowing for an evaluation of whether there is a well-founded fear of persecution on the basis of mere conjecture or surmise.
[50] GUO, supra (1997) 191 CLR 559, 572.
More recently, in BMG17 v Minister for Immigration and Border Protection,[51] O’Bryan J stated:
. . . in assessing the risk of harm for the purposes of the refugee and complementary protection criteria, the use of the word “speculation” can be problematic. As observed by the High Court in Guo, the ordinary dictionary meaning of the word “speculation” is conjecture or surmise. Adopting that meaning of the word, the statutory task of assessing a person’s application for a protection visa under s 36 of the Act requires more than speculation: the refugee criterion requires the applicant to show a well-founded fear of persecution and the complementary protection criterion requires the applicant to show a real risk of significant harm. Neither are established by speculation, in the ordinary meaning of that word. However, the word speculation is sometimes used in a broader sense to mean predicting future events. That is the sense in which the word was used by the Full Court in CSO15 and AKH16, referred to above. As observed by the High Court in Guo, there is no error in using the word in that sense provided the applicable statutory test is then applied.
[51] [2019] FCA 1281, [25].
In my view, the Tribunal plainly understood the need to assess whether the applicant faced a ‘real chance’ of serious harm into the reasonably foreseeable future: see, eg, [49], [63], [64], [66]-[68]. In doing so, the Tribunal acknowledged that the situation could ‘change and fluctuate’ and that there was ‘an element of vulnerability in the government security measures. In acknowledging that circumstance, the December 2015 attack in Parachinar was used to illustrate the fact: [63]. However, on the basis of country information, the Tribunal concluded that there had been “a significant and sustained improvement in the security situation in the Kurram Agency since 2013/14”: [64].
Having considered those matters, the Tribunal found that it would be ‘mere speculation’ to find that the December 2015 attack marked a definite change in the security situation. As counsel for the Minister correctly submitted, the phrase ‘mere speculation’ in this context has been held by a Full Court so as only to ‘emphasise the guesswork that the Tribunal thought was necessary to assume a change for the worse in the security situation, which it was not prepared to undertake’.[52]
[52] AKH16, supra [2019] FCAFC 47, [60] (Middleton and Mortimer JJ).
In this case, the Tribunal’s use of the expression ‘mere speculation’ does not indicate that it had abdicated a core aspect of its review function. It reflected an understanding of the distinction between those cases where a Tribunal properly considers whether or not an event might occur in the future, from those in which the decision-maker has simply engaged in conjecture or surmise in the consideration of the predictive task of deciding whether the fear of harm is well-founded. I agree that the expression was simply used to convey the conclusion that the Tribunal did not consider that there was any proper basis for concluding from the fact of the December 2015 attack that there had been a definite change in the security situation in Kurram Agency.[53] This finding led the Tribunal to conclude there was not a real chance that any individual Turi Shia would be killed or injured in such a terrorist attack ‘in the reasonably foreseeable future’.[54] I consider that this reasoning demonstrates that the Tribunal conducted the predictive task which was required of it. This was sufficiently forward looking. Nor did the Tribunal limit its consideration of the ‘real chance’ test to whether the applicant might be harmed by a repeat of the December 2015 attack. To the contrary, it accepted that there was ‘some level of risk’ to the applicant in the context of generalised violence, but found that the risk was remote[55] now or in the reasonably foreseeable future: [66]-[67].
[53]BMG17 v Minister for Immigration and Border Protection [2019] FCA 1281, [30].
[54] CB 214 [64].
[55] CB 214 [65].
Ground 2 is rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 27 February 2020
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