CJE16 v Minister for Immigration
[2019] FCCA 835
•3 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJE16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 835 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa –– whether the Tribunal made the error identified in CID15 by considering the applicant’s present level of safety in Kurram Agency relative to the previous dangers of that region rather than whether the applicant faced a real chance of serious harm – whether the non-disclosure of a s.438 certificate and the documents it covered resulted in any practical injustice. |
| Legislation: Migration Act 1958, s.438 |
| Cases cited: CID15 v Minister for Immigration and Border Protection [2017] FCA 780 Minister for Immigration v Singh (2016) 244 FCR 305; (2016) 343 ALR 97; (2016) 71 AAR 169; [2016] FCAFC 183 Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 |
| Applicant: | CJE16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1819 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 4 October 2017 |
| Date of last submission: | 10 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 3 April 2019 |
REPRESENTATION
| Counsel for the applicant: | Calum Henderson (pro bono) |
| Solicitors for the applicant: | Carina Ford Immigration Lawyers (pro bono) |
| Counsel for the first respondent: | Christopher Tran |
| Solicitors for the first respondent: | Mills Oakley |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Mills Oakley |
ORDERS
The application filed on 25 August 2016, amended on 18 September 2017 and further amended on 10 October 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1819 of 2016
| CJE16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
This matter was heard on 4 October 2017. The applicant’s second ground concerned a certificate issued under s.438 of the Migration Act 1958 (“the Act”). Judgment in the present matter was reserved pending the High Court’s decision in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3. That decision was handed down on 13 February 2019.
The applicant’s claims
The applicant summarised his claims in paragraph 4 of his written submissions as follows:
In summary, the Applicant's relevant claims included the following:
(a)He was born and, until leaving the country, had lived his whole life in the Turi Qabristan Colony in Parachinar, a city in the Kurram Agency in Pakistan. As such he is a Shia Muslim.
(b)The Taliban (and other related militant Sunni elements, including ISIL/Daesh) have a strong and active presence in this region of Pakistan.
(c)While the Taliban and related groups have an openly violent animosity towards Shia in general, they are particularly hostile toward the Turi tribe and other Shia from Parachinar. This is because the Turi Shia have (along with other tribes) refused to allow these militant sects access to the Afghanistan border, which they seek to cross in order to engage in war with US-led forces.
(d)Prior to his departure, the Applicant was a taxi driver and a delivery driver. His delivery work often involved him carrying goods from villages in the region to Parachinar. For the 3 months immediately before his departure, he worked in a fabric or clothing stall in an open marketplace.
(e)In 2008, the Applicant's uncle, also a driver, was kidnapped by the Taliban. This man was held and tortured for a year before being murdered; his body found dumped on a street. The Taliban did this because Shia drivers in the area are seen as providing support to those opposing the Taliban's activities. Having survived a roadside explosive device attack by the Taliban on a small bus he was driving, the uncle was targeted and abducted.
(f)Following his uncle's abduction and subsequent murder, the Applicant was identified as an enemy of the Taliban. He was threatened many times by people identifying themselves as Taliban. He was told that if he did not leave the area he would be killed. He and his family received many telephone calls from people whom he understood to be the Taliban, in which threats were made that he would be captured, tortured and killed because of the transport services and assistance he has provided to Shias in the area.
(g)On 17 February 2012, he was going to prayer when a suicide bomber detonated a device in the area. Many people were killed and badly injured.
(h)He left Parachinar in April 2012.
(i)He now fears that militant Sunni groups in Pakistan will consider him to be a traitor and spy for having sought asylum in Australia. He understands that these groups have the support of many police (be they corrupt or ideologically aligned) and a vast network of anti-Shia sympathisers providing intelligence. He fears that if he is returned to Pakistan, he will be identified and incarcerated or killed.
The Tribunal’s reasons
The applicant summarised the Tribunal’s reasons for decision in paragraphs 11 to 14 of his written submissions as follows:
11.The essence of the Tribunal's reasoning was that:
(a)the Applicant's profile was not such that he was at higher risk than other Turi Shias from Kurram Agency who had sought asylum in Australia;
(b)Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups, including the Taliban;
(c) Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban;
(d)country information indicated that Shia Muslims were targeted in Kurram Agency, with reports of:
(i) 30 security incidents in 2012 (including 15 bomb attacks); and
(ii) multiple bomb attacks in Parachinar killing around 50 people and injuring over 100 in 2013;
(e)Despite this, the Tribunal said:
There is credible country information that indicates that the situation has improved significantly in the FATA, including Kurram Agency, since this time. [emphasis here and following added][by the applicant]
12.In support of the finding that the situation had “improved”, the Tribunal referred to the following findings of various country information Reports:
(a)“Kurrum Agency remained comparatively quiet ... in 2014”;
(b)“‘general peace’ appeared to have been restored” in the period 22 to 26 April 2014”
(c)people in the area “currently” felt safe in June 2014;
(d)“[2015] marked a significant decline in terrorism-related incidents in the tribal areas of FATA”, noting a 40% decrease in militant violence (but, significantly, “a surge” in militancy related incidents in Kurram Agency throughout the first, third and final quarters of 2015;
(e)“civilian and security forces fatalities in the FATA had recorded a seven year decline” (159 civilian fatalities in 2015 compared to 319 in 2014) and there were “significantly less casualties from both suicide attacks and incidents of explosion”[.]
13. Outside of Kurram Agency and the broader FATA area, the Tribunal relied on several other sources to confirm that “the overall security situation in Pakistan has improved”. It said that:
(a)an Austrian mission in July 2015 had found “an overall improved security situation since its previous mission in 2013”;
(b)a Pakistani report “indicated a 30% decrease in the number of terrorist attacks carried out by nationalist/insurgent and violent sectarian groups in Pakistan in 2014 compared to 2013”; and
(c)a (then) very recent DFAT Thematic Report “also indicates that the security situation in Kurram Agency has improved.”
14.The Tribunal's assessment of this evidence is set out at paragraph [71] of its Decision:
The Tribunal finds ... that overall the country information indicates that the violence from the Taliban and sectarian violence has decreased in the region, particularly from 2014 onwards.
(footnotes omitted)
Ground 1
The first ground of review in the application filed on 25 August 2016, amended on 18 September 2017 and further amended on 10 October 2017 (“the application”) is:
The Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by misapplying the “real chance” test in assessing whether the applicant had a well-founded fear of persecution if returned to Pakistan.
Particulars
a.The applicant made various claims to face a real chance of serious or significant harm in Pakistan at the hand of the Taliban or other militant Sunni groups on the basis of his ethnicity (Pashtun), religion (Shia Muslim), membership of a particular social group (Turi Shia from Parachinar) or actual or imputed (anti-Taliban, anti-ISIS/Daesh) political opinion.
b.The Tribunal found that “[c]ountry information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban”.
c.However, the Tribunal found that the situation in Kurram Agency and Pakistan more generally has:
a.“improved”;
b.had “a level of security restored”
c.become “relatively stable”;
d.seen violence from the Taliban and sectarian violence decrease in the region; and
e.otherwise seen a relative decrease [in] the number of security events from previous periods.
d. Rather than apply an objective assessment of the risk to the Applicant at the time of the Decision, the Tribunal undertook a comparative assessment of the security situation in Pakistan, relative to an earlier time or times.
e.Based on its findings (at least in part), the Tribunal concluded that the appellant did not satisfy the criteria in s 36 of the Migration Act 1958 (Cth).
f. The Tribunal thereby made a jurisdictional error.
g.As explained in cases such as CID15 v Minister for Immigration [2017] FCA 780, the test of whether there is a real chance that an applicant will suffer harm in their country of nationality is not a relative one. It is not determinative whether the risk at one time is less severe than the risk at an earlier time.
Essentially, the applicant argued that the Tribunal in the present case made the same error as the Tribunal whose decision was under review in CID15 v Minister for Immigration and Border Protection [2017] FCA 780. In CID15, Moshinsky J said:
[6]The Tribunal went on to assess whether it would be reasonable in all the circumstances for the appellant to relocate to some other part of Pakistan where there was no appreciable risk of the occurrence of the feared persecution. In considering this issue, the Tribunal referred to a Department of Foreign Affairs and Trade (DFAT) assessment that the security situation in Islamabad (and Lahore) was “relatively free” from violence, and stated that, in many cases, there were options available for members of most ethnic and religious minorities, including Shias, to relocate to areas of “relative safety” elsewhere in Pakistan. The Tribunal concluded on this issue that the appellant could relocate to an urban centre, such as Islamabad or Rawalpindi, where he would not face a real chance of serious harm because of his ethnicity, Shia religious identity or imputed political opinion.
…
[10]For the reasons that follow, in my respectful opinion, the primary judge erred in her construction of the Tribunal’s reasons. In my view, on the true construction of the reasons, the Tribunal was comparing the safety of different areas within Pakistan. Putting the matter simply, the Tribunal’s finding was to the effect that certain urban areas were safer than Kurram Agency, rather than that they were safe. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative rather than an objective approach in applying the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.
…
[20] …
(f)The Tribunal then provided its reasoning and conclusion on the relocation issue at [48]–[51] as follows:
48.The Tribunal acknowledges that Islamabad and Rawalpindi – for example – are not entirely immune from security incidents, including sectarian violence. Nonetheless, the Tribunal notes that DFAT’s assessment [is] that the security situation in Islamabad (and Lahore) is relatively free from politically-motivated, terrorist and sectarian violence.
49.As discussed, DFAT reports that Pakistan has struggled with security threats from terrorist, militant and sectarian groups but it is a diverse country and the security situation varies greatly over time and from place to place, with urban centres tending to be more secure than rural areas. It assesses that in many cases there are options available for members of most ethnic and religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan. It has said that large urban centres such as Islamabad are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a higher level of state protection.
50.In summary, the Tribunal has considered carefully the question of whether the applicant’s fear of Convention related harm is well founded in respect of the entire territory of Pakistan, taking into account the applicant’s oral and written evidence and the representative submissions in this respect. In light of the country information and in particular DFAT’s advice, the Tribunal does not accept the contention that all Shia are at risk of serious harm from the Taliban or other Sunni militant groups throughout the entire territory of Pakistan for that reason alone. The Tribunal accepts DFAT’s advice, as discussed with the applicant at the hearing, that the internal relocation of Shia to avoid sectarian violence occurs with relative frequency, the security situation varies greatly from region to region, and relocation to a large urban centre that is home to mixed sectarian communities may offer a safe [haven] within the territory of Pakistan to a person who would have a well-founded fear of being persecuted for a Convention reason in their home area.
51. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons advanced by the applicant (or his representative) within the entirety of Pakistan now or in the reasonably foreseeable future. The Tribunal finds that the applicant is in a position to relocate to an urban centre such as Islamabad or Rawalpindi, a location where he would not face a real chance of serious harm because of his Shia, Bangash, Pashtun and Parachinar background, or his imputed political opinion.
(Footnote omitted.)
…
[40]As noted above, the basis upon which the primary judge concluded that the Tribunal had not made a jurisdictional error was that the Tribunal was not, when using phrasing including “relatively”, comparing the safety of urban centres with Kurram Agency or other areas, but was expressing a view about the urban areas being relatively safe as opposed to being absolutely safe. In my respectful opinion, this is not a correct construction of the Tribunal’s reasons. My reasons are as follows.
…
[45]Fourthly, it is important to have regard to the earlier finding of the Tribunal, at [23], that “[c]ountry information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban”. This finding was made in relation to Pakistan generally, not just Kurram Agency. In light of this finding, it is improbable that the Tribunal’s findings at [48]–[49] were to the effect that the urban areas were safe; it is much more likely that the Tribunal merely found that they were safer than other areas.
[46]Fifthly, to read the Tribunal’s reasons at [42], [48], [49] and [52] in this way is consistent with the principles described by the High Court in Wu Shan Liang. This is not a matter of looseness of language or unhappy phrasing. The Tribunal’s use of relative words throughout [42], [48], [49] and [52] indicates, as a matter of substance, the nature of the findings that it made.
[47]Sixthly, it is not to the point that [50] of the Tribunal’s reasons is not expressed in relative terms. The conclusions in [50] depend on the findings in [48] and [49]. This is made clear by the references in [50] to DFAT’s advice, being the same advice relied upon in [48] and [49]. Thus, if the reasoning in [48] and [49] is flawed, so too are the conclusions in [50]. I note for completeness that, at the end of [50], the Tribunal stated that relocation to a large urban centre “may” offer a safe haven. The conditional way in which that conclusion was expressed is consistent with the adoption of a relative rather than an objective approach.
…
[50]I also consider, for essentially the same reasons, that the Tribunal’s approach amounted to a jurisdictional error. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative, rather than an objective, approach in applying the ‘real chance’ test in the context of the internal relocation issue. This is demonstrated by the aspects of [42], [48], [49] and [52] of the Tribunal’s reasons discussed above. It is true that the Tribunal correctly stated the ‘real chance’ test at the beginning of its consideration of the relocation issue (at [38]) and expressed its conclusion (at [51]) in terms of the ‘real chance’ test. But this does not overcome the difficulty that its findings on the issue (at [48]–[49]) were merely relative findings rather than findings that would sustain the conclusion at [51]. As explained above, the conclusions in [50] depend on the findings in [48] and [49]. In these circumstances, and notwithstanding that the Tribunal correctly applied the ‘real chance’ test elsewhere in its reasons, I consider that it misapplied the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.
The Minister accepted that the Tribunal would have fallen into error if it had considered that the real chance test was relative, for example, by considering that the question to be answered was whether the chance of harm in a particular place was less than it had been in the past or less than it was in another place. However, the Minister argued that the Tribunal in the present case did not make the error identified in CID15.
The Minister noted that, in the present case, as the applicant acknowledged, the Tribunal set out the correct test at the beginning and end of its reasons for decision. The relevant passages from the Tribunal’s reasons for decision are as follows:
58.Given these findings, the Tribunal has considered independent country information about the security situation in Kurram Agency in assessing whether or not the applicant faces a real chance of serious harm for reasons of his Turi ethnicity, Shia religion, membership of a particular social group comprising Turis from Parachinar, and/or imputed political opinion of opposition to the Taliban (and its ideals) and other militant Sunni groups (due to his status as a Turi Shia; his association with his uncle; his work as a driver servicing local Shias; and his being associated with Western values), if he were to return to his home village in Kurram Agency now or in the reasonably foreseeable future.
…
68.… Taking into account the most recent DFAT assessment, as well as credible and independent country information from other sources as discussed, the Tribunal is of the view that the weight of the country information indicates that a level of security has been restored to Kurram 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 Kurram Agency. …
Nevertheless, the applicant argued that the Tribunal’s reasoning in the intervening paragraphs did not reflect the application of the correct test or support the conclusion in paragraph 68 of the Tribunal’s reasons for decision.
The applicant particularly noted the following passages in the Tribunal’s reasons for decision, where it expressed conclusions in relative terms:
59.The Tribunal accepts that country information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni extremist groups including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban. Reports indicate that in the first quarter of 2012 Shias continued to be targeted in Kurram Agency, with 30 security incidents in Kurram including 15 bomb attacks. In July 2013 multiple bomb blasts in Parachinar were reported to have killed around 50 people and injured over 100. However, as discussed with the applicant at the hearing, there is credible country information that indicates that the situation has improved significantly in the FATA, including Kurram Agency, since this time. This includes the following information.
60.The FATA Research Centre (FRC) said in its Annual Security Report 2014 that the Kurram Agency remained comparatively quiet among the seven tribal agencies in 2014 and that a total of two incidents, one bomb blast and one target killing, were recorded during the reporting period, killing three people and injuring one. …
…
62.More recently, in its Annual Security Report 2015 the FRC stated that the year marked a significant decline in terrorism-related incidents in the tribal areas of FATA. According to that report, militancy and counter militancy incidents were recorded from all the seven agencies of FATA in 2015, and the year remained turbulent with armed conflict between non state militant actors and law enforcement and security agents remaining at its peak. However, the report also noted that militant violence declined by 40% compared to 2014. It is also reported that out of the total casualties in FATA in 2015, almost 65% were militants. From a security point of view, the FRC reported that the most turbulent area during the outgoing quarter (of 2015) in FATA remained North Waziristan and Khyber Agencies where military operations against local militants is ongoing. …
63.In its 2015 ‘FATA Assessment’ report the South Asia Terrorism Portal (SATP) reported that civilian and security forces fatalities in FATA had recorded a seven year decline, while overall fatalities had been higher due to the increase in terrorist fatalities under the ongoing military operations in North Waziristan Agency and Khyber Agency. It reported that total fatalities through 2014 stood at 2,863, including 2,510 terrorists, 194 security forces personnel and 159 civilians; as compared to 1,716, including 1,199 terrorists, 319 civilians and 198 security forces personnel in 2013. While SATP noted the number of major incidents (each involving three or more fatalities) in FATA increased by 48.87 per cent in 2014 compared to the previous year, this was said to be principally due to the government’s counter-insurgency operations with the overwhelming number of fatalities occurring among groups registered as terrorists rather than civilians or security forces personnel. SATP reported that other parameters of violence such as suicide attacks, explosions and sectarian attacks remained low throughout 2014 with significantly less casualties from both suicide attacks and incidents of explosion. SATP recorded that sectarian violence in the region also registered a steep decline.
64.Other sources confirm that the overall security situation in Pakistan has improved. For example, the UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation reports that the Austrian fact Finding Mission to Pakistan undertaken in July 2015 found an overall improved security situation since its previous mission in 2013. The 2014 report of the Pakistani Institute for Peace Studies (PIPS), indicated a 30% decrease in the number of terrorist attacks carried out by militant, nationalist/insurgent and violent sectarian groups in Pakistan in 2014 compared to 2013.
65.The most recent DFAT report on Shias in Pakistan, dated 15 January 2016, a copy of which was provided to the applicant’s representative at her request, also indicates that the security situation in Kurram Agency has improved. …
66.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).
67.At the hearing the Tribunal discussed with the applicant the indications in such country information that there has been a significant decline in sectarian and generalised violence in Kurram Agency. He commented that some of the returnees were bad Shias who supported the Taliban and therefore the peace would not last. He referred to incidents in Peshawar and Lahore as well as a report that an attempt was made to kidnap in Islamabad an elderly Shia man from Kurram Agency. He also commented on reports that Daesh pamphlets had been distributed in Parachinar threatening that Parachinar would be attacked, and that there had been a recent incident where an explosive device had been found and disarmed in a market in Parachinar. The applicant’s representative referred to comments in the FRC Annual Report for 2015 that indicated that there had been a surge in incidents in 2015.
(emphases added) (footnotes omitted)
On the other hand, the Minister noted other passages in the Tribunal’s reasons for decision which he said supported the Tribunal’s conclusions. In particular, the Minister noted the following:
60.… A UNHCR report on a protection cluster mission to Kurram in April 2014 likewise concluded that it was evident that general peace had been restored in Upper and Lower Kurram. Furthermore, a UNHCR report from June 2014, which detailed a review of those who had returned to a region in the Upper Kurram area, stated:
2)General situation and security in areas of return
All key informants in the five villages showed satisfaction over the security situation in the area and they shared that they feel safe and secure currently in area of return. …
…
61.The Tribunal finds the UNHCR advice cited above indicates that the returnees were genuinely satisfied with the security situation in the area and felt safe and that UNHCR had concluded that general peace had been restored in Upper and Lower Kurram.
…
65.The most recent DFAT report on Shias in Pakistan, dated 15 January 2016, … also indicates that the security situation in Kurram Agency has improved. The report indicates 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.
…
68.… The Tribunal has therefore given weight to the relevant DFAT reports as well as other credible sources. The Tribunal considers that the totality of these sources provides an accurate picture of the security situation and overall level of casualties. The Tribunal acknowledges that the situation can change and fluctuate, as indicated in the FRC’s annual security report for 2015 cited above for example, and that there is an element of vulnerability in the government security measures, as illustrated by the December 2015 IED attack in Parachinar. Taking into account the most recent DFAT assessment, as well as credible and independent country information from other sources as discussed, the Tribunal is of the view that the weight of the country information indicates that a level of security has been restored to Kurram 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 Kurram Agency.
(emphases added) (footnotes omitted)
In my view, the Tribunal in the present case did not make the type of error identified in CID15. It is true that much of the Tribunal’s reasoning referred to improvements in the security situation in Kurram Agency relative to the previous situation. However, those references were necessary, in view of the extensive country information which indicated that the security situation in Kurram Agency had previously been very bad.
In general, the Tribunal was entitled to prefer some country information to other country information, but was required to have proper regard to the more recent country information. In the present case, the more recent country information showed that there had been an improvement in the general security situation in Kurram Agency, and that some of those who had returned to that area when questioned by the UNHCR reported that they were satisfied with the security situation and felt safe and secure in the area. This, in conjunction with the DFAT report dated 15 January 2016, was enough to support the Tribunal’s finding at paragraph 68 of its reasons for decision that:
… Taking into account the most recent DFAT assessment, as well as credible and independent country information from other sources as discussed, the Tribunal is of the view that the weight of the country information indicates that a level of security has been restored to Kurram 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 Kurram Agency. …
The reference in that paragraph to a level of security conveys that Kurram Agency is not absolutely secure. Similarly, the reference to general peace conveys that generally, or usually, Kurram Agency is now peaceful, but accepts that it is not always peaceful.
However, those findings are not inconsistent with the subsequent finding that the applicant did not face a real chance of serious harm. That is because the real chance test does not require that safety be guaranteed. Rather, the real chance test required a consideration of whether there was a realistic possibility of an applicant facing serious harm.
The Tribunal considered that question and decided that there was not a real chance of the applicant facing serious harm. That conclusion was open to the Tribunal, in view of its findings, particularly that the UNHCR had reported that people who had returned to Kurram Agency felt safe and secure.
Reasonable minds may have differed on the result, but it is not for this court to undertake merits review. This ground is not made out.
Ground 2
The second ground of review in the application is:
The Tribunal constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by:
a.failing to follow a procedure accordingly to law; and
b.denying the Applicant procedural fairness,
when it:
c.failed to put certain material (Material) purportedly covered by an invalid s.438 certificate (Certificate) to the Applicant for comment; and/or
d.failed to:
i.give the Applicant notice that the Certificate had been issued; and
ii. give the Applicant notice that the Tribunal had decided not to disclose certain material; and
iii. provide the Applicant with an opportunity to make submissions on the exercise of [the] Tribunal’s discretionary powers under s.438(3).
Particulars
a.The Certificate dated 22 September 2014 purportedly issued under s.438(1)(a) of the Migration Act 1958 by a delegate of the First Respondent does not indicate a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that information should not be disclosed.
b.At no time before about 3 February 2017 was the Applicant notified or otherwise made aware of the existence of the Certificate or the Material it purports to cover.
The Minister filed a supplementary court book on 3 February 2017 which contained a s.438 certificate and the documents covered by it. The existence of the certificate and the documents it covered were not disclosed to the applicant until the Minister filed the supplementary court book on 3 February 2017. That was long after the Tribunal made its decision. In accordance with Minister for Immigration v Singh (2016) 244 FCR 305; (2016) 343 ALR 97; (2016) 71 AAR 169; [2016] FCAFC 183, the supplementary court book was placed in a sealed envelope.
Following the High Court’s judgment being handed down in SZMTA, my chambers asked the parties if they wished to file any further written submissions in relation to the issue of the s.438 certificate. Both the applicant and the Minister indicated that they did not wish to file any further written submissions.
I have examined the s.438 certificate and the documents it covers. Basically, the documents indicate that the applicant’s identity card was examined by a forensic document examiner and was found to be genuine. The Tribunal’s reasons for decision show in paragraph 47 that the Tribunal accepted the applicant’s identity as claimed, based in part on his genuine identity card. There was no practical injustice in the Tribunal not disclosing the s.438 certificate and the documents it covers. Consequently, this ground is not made out.
Conclusion
As neither of the applicant’s grounds has been made out, the application will be dismissed with costs.
In this matter, the applicant was represented pro bono by Carina Ford Immigration Lawyers and, at the final hearing of the matter, the applicant was represented pro bono by Mr Calum Henderson of Counsel. The court extends its gratitude to the applicant’s solicitor and counsel for acting pro bono in this matter and assisting the court.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 3 April 2019
1
4
0