CKS16 v Minister for Immigration
[2018] FCCA 3720
•18 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKS16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3720 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of decision of second respondent – whether Tribunal considered or properly dealt with applicant’s claim – whether Tribunal understood and addressed the applicant’s claims and integers of claims – whether Tribunal properly evaluated risk of future harm – applicable principles – need to assess reasonably foreseeable risk of harm Tribunal had a consciousness of the applicant’s claim and engaged in an active intellectual evaluation of that claim – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 414, 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 AUV15 v Minister for Immigration and Border Protection [2018] FCA 812 AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 BOZ15 v Minister for Immigration and Border Protection [2018] FCA 418 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Texts & materials: |
| Applicant: | CKS16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1867 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | Russell Kennedy Lawyers |
| Counsel for the Respondents: | Mr McDermott |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
Pursuant to r 7.01(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the title of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.
The amended application filed on 25 September 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,209.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1867 of 2016
| CKS16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 25 September 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 August 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
Background
The applicant, a Pakistani national aged 36 years, first arrived in Australia on 9 August 2012 as an unauthorised maritime arrival. On 15 January 2013, the applicant applied for a Protection (Class XA) visa. By his application, the applicant identified himself, both by his name, and his tribal name, and stated that he was of Pashtun ethnicity and a Shia Muslim. The application further stated that the applicant had been born in Parachinar, Kurram Agency, where he had lived until 2004 when he had moved to Peshawar until 2012.
The application attached a statutory declaration outlining the applicant’s claims for protection. He claimed that, when he was aged five years, his father had been killed by a rocket attack from Sepah-Sehaba, an anti-Shia group. In contrast with his Protection visa application, he declared that he had left Parachinar in 1999 to go to Peshawar because he was unemployed and had found it difficult to find work. The applicant claimed to fear harm from a Waziristan based Taliban group on the basis of his religion as a Shia Muslim. The applicant’s statutory declaration detailed a series of suicide bombings. He said that he had left Pakistan shortly after being told to close the shop at which he worked on Fridays and following two explosions which had occurred on the same date outside his flat in which he claimed “a lot of people lost their lives”. His declaration claimed that this was the final straw for him and that he did not feel safe even in Peshawar.
On 15 January 2013, the applicant attended an interview with a delegate of the Minister to discuss his visa application and claims for protection. The applicant’s claims were consistent with those throughout his Entry Interview and Protection Visa Statement. The applicant also raised concerns that he could come to the attention of groups such as Lashkar-e Islam if he were to return to Pakistan.
On 24 October 2014, a delegate of the Minister made a decision to refuse the visa application. The delegate found that the applicant was not a person to whom Australia owed protection obligations. The delegate provided a decisional record for that decision. The decisional record which was arranged in a conventional format provided a detailed consideration of the claim to protection:
a)In Part A, Findings, Applicant’s details, at Section 9, Findings of Fact (Credibility), the Delegate found that the applicant’s claims that he was a Shia, a member of the Bangash tribe, and from Kurram Agency to be credible and consistent. It also accepted that the applicant’s surname, Hussain, was a strong indicator of his belonging to the Shia sect of Islam and that his tribal name, Bangash, featured in his passport. The delegate accepted that the Bangash tribe were well known to inhabit the Kurram Agency. The decisional record states:
A predominantly Sunni tribe, those who follow the Shia sect of Islam generally live in the Upper Kurram area of Parachinar while the Sunnis reside in Lower Kurram. Documents provided by the applicant refer to him being from the upper Kurram area, which together with his Shia name further support that he is Shia Bangash. The Shia Bangash are often grouped with the Turi tribe in terms of their tribal identity, and often referred to as the Turi Bangash tribe. (emphasis added)
b)In Part B, Assessment of Protection Obligations under the Refugees Convention, at Section 4, the delegate considered whether the applicant’s fear of persecution was well-founded. The delegate considered country information and concluded that the applicant’s fear of harm was well-founded as a Shia living in the Kurram Agency. By reference to further country information, the delegate also accepted that the Shia Bangash tribe (as opposed to the majority Sunni Bangash), along with Turis were known to have resisted Taliban fighters who attempted to move through their tribal area to gain access to Afghanistan. The delegate identified that the applicant therefore claimed that he would be targeted as a member of the Bangash Turi tribe and recognised as being anti-Taliban. However, the delegate reasoned as follows:
DFAT states that apart from Hazaras, Pakistani Shias are not physically, linguistically or legally distinguishable from Sunni Pakistanis, though can be identified through common Shia names such as Hussain, or tribal names such as Turi. The applicant belongs to the Bangash tribe and the broader Pashtun racial group which encompasses many other Pakistanis, not necessarily anti-Taliban or Shia. DFAT states credible sources have reported that Bangash Shias are less visible than Turis, and their Shia identities are difficult to distinguish. (emphasis added)
The delegate concluded that the applicant’s Bangash ethnicity did not result in the applicant facing a real chance of persecution. The delegate proceeded to examine other aspects of the applicant’s claims finding that he had not been targeted personally, did not face a real chance of being harmed as a failed asylum seeker, or as a returnee from a Western country. The delegate was satisfied that the applicant could safely relocate and was not satisfied that the applicant’s fear was well founded. The delegate concluded that the applicant was not owed protection obligations by Australia under the Refugees Convention. In Part C of the decisional record, the delegate concluded that the applicant was not a person who faced a real risk of suffering significant harm as a result of being removed from Australia to a receiving country.
On 29 October 2014, the applicant lodged an application with the then Refugee Review Tribunal for a review of the delegate’s decision. The applicant was assisted by the same migration agent in his application.
By letter dated 11 March 2016, the applicant was invited to appear before the Tribunal on 20 April 2016 to give evidence and present arguments relating to the decision under review.
The applicant was also requested to, and did, provide a detailed pre-hearing submission. Relevantly to the present application:
a)in Section 2 of those submissions, The delegate’s findings, it was put that the delegate had made findings that Bangash Shias were less visible than Turi Shias and were difficult to distinguish and it was submitted that the DFAT report upon which the delegate had relied “makes no reference at all to Bangash Shias being less visible that Turis or state that the Shia identities of Bangash are difficult to distinguish.” The applicant’s lawyer submitted that those omissions from the DFAT report were critically important in establishing that the applicant would have a profile as a Shia Muslim of the Bangash tribe from Parachinar, Kurram Agency. As appears below, in the Reasons at [15], the Tribunal clearly recognised that this submission had been made by the applicant.
b)in Section 3 of those submissions, Protection claims, the applicant’s lawyer set out the nature of the applicant’s claims to protection. The submission squarely identified that the applicant feared persecution on account of either cumulatively or separately:
a. His Shia Muslim faith; and/or
b. His Bangash ethnicity; and/or
c. His actual and/or imputed political opinion against the Taliban and/or the TTP and/or other extremist Sunni groups and/or sympathisers on account of, cumulatively or separately;
i. His profile as a Bangash Shia Muslim from Parachinar; and/or
ii. His time spent in Australia as an asylum seeker; and/or
d. His membership of the particular social group, ‘the Bangash tribe’ and/or ‘members of the Bangash tribe from the Kurram Agency and/or Parachinar’ and/or ‘Parachinar Shias.’
c)in Section 4.1 of those submissions, The situation for Shia Muslims in Pakistan, the applicant’s lawyer addressed a more recent DFAT report on Shias in Pakistan dated 15 January 2016. That report stated that Shias were often identifiable by their surnames while Sunnis and Shias both used names such as Hussain, and that tribal names could be used to identify or sectarian affiliation as Hazara, Bangash or Turi and that the accents of Bangash and Turi were easy to distinguish from other groups. It was submitted that the applicant’s passport and National Identity Card used the name Jawad Hussain Bangash, and that regardless of whether the name Hussain was or was not used by both Sunnis and Shias (i.e. regardless of religion), the applicant would be quickly identified as belonging to the Bangash tribe directly from his identity documents;
d)in Section 4.2 of those submissions, The rise of Daesh in Pakistan and the implications for Shia Muslims, the applicant’s lawyer contested DFAT information that there was an absence of credible evidence of an active Islamic State presence in Pakistan and that such claims were rhetorical and aspirational in nature. The submission quoted from an article in which the Director General of the Intelligence Bureau, Aftab Sultan, had made what was described as a ‘rare admission’ that the presence of the militant group Islamic State was growing in Pakistan. On this footing it was submitted that the rise of Daesh posed an ever-greater risk to Shia Muslims. The submission also quoted from a 2015 paper which stated that with the arrival of Islamic State in Pakistan’s jihadist landscape, there had been a spike in the volume of anti-Shia violence. Again, as appears from the Tribunal’s reasons, including at [19], [84]-[85], I consider that the Tribunal clearly understood that this submission had been made to it in seeking a merits review of the issues arising in relation to the delegate’s decision.
In addition, the applicant’s lawyers also provided a further statutory declaration which was said to be non-exhaustive but intended to respond to aspects of the delegate’s decision. The declaration stated, in part, that the applicant’s names were easily identifiable as being Shia Muslim and that his identity documents identified him as being of the Bangash tribe which was known to have been opposed to the Taliban and which the applicant relied upon as grounding a fear that he would be a target for the Taliban because he would be immediately known as a Shia Muslim of the Bangash tribe.
The applicant appeared at a Tribunal hearing and was assisted by his representative and a Pashto interpreter. The hearing occupied a period of about three hours.
The applicant’s representative provided the Tribunal with written post-hearing submissions dated 10 May 2016 seeking to provide further information in support of the applicant’s claims for protection. In Section 2 of those submissions, The rise of Daesh in Pakistan and the implications for Shia Muslims, the applicant’s lawyer again addressed this topic, noting that the applicant had given evidence in relation to it during the hearing and that country information had been addressed with the applicant at that hearing. It was submitted that the country information suggested that the influence of Daesh was spreading throughout Pakistan and particularly in the border regions between Afghanistan and Pakistan, including inside the Kurram Agency. The applicant’s lawyers reiterated that the DFAT statement that there was no credible information concerning an active or organised Islamic State presence in Pakistan was unfounded and that the available country information established the contrary, particularly in those border regions.
On 5 August 2016, the Tribunal affirmed the decision of the delegate not to grant to applicant a Protection visa and provided a statement of reasons for its decision (Reasons). Having regard to the grounds of review which are contained in the amended application, it is convenient to address those Reasons below.
Procedural history
On 1 September 2016, the applicant filed an application in this court for judicial review of the Tribunal’s decision.
By affidavit affirmed on 31 August 2016, the applicant annexed a copy of the Tribunal’s decision but otherwise did not adduce any evidence in support of his application.
By a Response filed on 19 September 2016, the Minister sought that the application be dismissed on the grounds that, because broad and unparticularised allegations were made, jurisdictional error could not be made out unless further particularisation was provided.
On 15 February 2017, orders were made, by consent, listing the matter for a Show Cause Hearing. By those orders, the applicant was afforded an opportunity to file any amended application with complete particulars of each ground, any affidavits and written submissions in support of his application. The applicant did not take the opportunity provided by those orders to file any further material.
On 23 May 2017, the applicant engaged legal representatives.
On 26 May 2017, I made orders vacating the Show Cause hearing. By those orders, the applicant was afforded an opportunity to file and serve any amended application by 25 September 2017.
On 25 September 2017, the applicant filed an amended application.
Tribunal decision
Contextually, judicial review was sought on the substantive ground that the Tribunal failed to consider the applicant’s claims to protection by reason of a fear of persecution because he was a Shia Muslim of Bangash ethnicity who had lived in Parachinar, Kurram Agency and that he had a real fear of harm from the emergent rise of Daesh.
No issue was taken with the Tribunal’s summary of the history and background to the application or of its statement of the criteria for the grant of a Protection visa: [1]-[10]. Nor was any issue taken with the Tribunal’s summary of the applicant’s background or the summary of claims as contained in his original statutory declaration: [11]-[12]. The Tribunal noted that the applicant had departed Pakistan legally in April 2012, travelled to Thailand, Malaysia and then Indonesia before arriving in Australia as an unauthorised maritime arrival: [11].
The Tribunal referred in some detail to the content of the applicant’s statutory declarations and pre-hearing submissions, and at [15] expressly recognised that the applicant’s lawyer had commented upon the delegate’s findings, including his having disputed that the applicant would not face a real chance of persecution based upon his Bangash ethnicity. In the same vein, the Tribunal expressly recognised that an element of the claim was based upon a ‘rise’ of Daesh in Pakistan: [19].
The Tribunal recounted the evidence which had been given by the applicant at the hearing, in relation to which no complaint was made in this court: [21]-[36].
The Tribunal also addressed the applicant’s post-hearing submission, in which the Tribunal recognised that further information had been provided respecting the presence and activities of Daesh in Pakistan and that the applicant’s lawyer had made a submission that country information established a growing presence of Daesh in Pakistan, particularly in the border towns between Pakistan and Afghanistan: [41].
The Tribunal accepted the applicant’s identity was as claimed: [47].
The Tribunal undertook a detailed analysis and consideration of the applicant’s claims: [48]-[91]. It accepted that the applicant’s father had been killed and his sister seriously injured (in separate incidents) but found that those events had not been the result of a specific targeting or that this served to elevate the applicant’s risk profile. It also accepted that a convoy in which the applicant had been travelling en route to Parachinar had been attacked but noted that the applicant had not been the subject of any specific targeting in this incident. It also accepted that the applicant’s employer had been threatened for opening his shop on Fridays and that the applicant had witnessed two bombing incidents.
The Tribunal further accepted that there was sectarian violence in the Kurram Agency, particularly since 2007, but did not accept that the applicant had a profile that placed him at a higher risk than other Bangash Shias from that Agency. It found the applicant was not a prominent Shia: [50], [68], [70].
The Tribunal concluded that upon an individual and cumulative assessment of the applicant’s claims as a Bangash Shia (Muslim) from Parachinar in the Kurram Agency, it was not satisfied that the applicant had “a well-founded fear of persecution for (the) reason of his Shia Muslim faith, his Bangash ethnicity, his actual or imputed political opinion against Sunni extremist groups and their sympathisers as a Bangash Shia Muslim from Parachinar, his time spent in Australia as an asylum seeker and his membership of a particular social group comprising the Bangash tribe from Parachinar/Kurram Agency or Parachinar Shias, or for any other Convention reason if returned to Pakistan . . .”
The Tribunal was not satisfied that the applicant was owed protection obligations under the Conventional and Protocol relating to the Status of Refugees 1951, as amended (Refugees Convention) or that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia and, as such, was not owed complementary protection: [92]-[100].
Consideration
Being a privative clause decision[1], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]
[1] Section 474(2).
[2]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Sub-s 476(2).
The amended application contains two grounds of review.
Ground 1 – Bangesh ethnicity and tribal membership
Ground 1 reads:
The Tribunal failed to consider:
(a) the Applicant’s fear of persecution on the basis that he was of Bangash ethnicity;
(b) the Applicant’s fear of persecution on the basis that he was a member of the particular social groups comprised of ‘the Bangash tribe’ and/or ‘members of the Bangash tribe from the Kurram Agency and/or Parachinar’ and/or ‘Parachinar Shias’.
The applicant submitted that claims had been made ‘to fear of harm at the hands of extremist groups in Pakistan including for reasons of his Bangash tribal identity, categorised variously as his ethnicity or his membership of particular social groups.”[4] It was submitted that while the Tribunal had recorded the claim, it had not been expressly addressed by the Tribunal. To that end, it was submitted, correctly, that mere advertence to a claim, without any analysis, may not be sufficient: MZYPW v Minister for Immigration and Citizenship.[5]
[4] Applicant’s submission, [9].
[5][2012] FCAFC 99, [19] (Flick and Jagot JJ); see also Islam v Cash [2015] FCA 815 (Flick J); BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 (Perram, Perry and O’Callaghan JJ); Maioha v Minister for Immigration and Border Protection [2018] FCA 1016 (Perry J); AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 (Bromberg J).
The applicant relied upon the matters contained in his pre-hearing submission as containing an explicit free-standing claim to fear of persecution, based upon his Bangash tribal identity, and divorced from his Shia religion.[6] In doing so, the applicant expressly accepted that his particular submission was based upon and largely addressed to his composite profile; namely, as a Bangash Shia Muslim. Reliance was placed upon the submissions made concerning the applicant’s national identity card and passport which listed his name as Bangash and upon country information. It was also put that, in contrast with the Reasons, the delegate’s decisional record had given consideration to a claim to a risk of harm on this basis.
[6] Applicant’s submission, [13]-[14].
The applicant acknowledged that his submission that the Bangash tribe was known to be opposed to the Taliban had been recorded but contended that nowhere had that submission been resolved. It was submitted that the Tribunal’s statements respecting this issue were merely conclusory and did not sufficiently engage with the issue.[7]
[7]cf AUV15 v Minister or Immigration and Border Protection [2018] FCA 1951, [22]. (O’Callaghan J).
Resolution
By s 414(1), a Tribunal is obliged, in imperative terms, to conduct the review of a valid application for review of a Part 7-Reviewable decision. In this context, it was common ground that a failure by a Tribunal to consider or properly deal with a clearly articulated claim or argument may constitute a constructive failure to exercise the jurisdiction conferred by s 414: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2);[8] Dranichnikov v Minister for Immigration and Multicultural Affairs;[9] CPE15 v Minister for Immigration and Border Protection;[10] BOZ15 v Minister for Immigration and Border Protection;[11] EVA17 v Minister for Immigration and Border Protection.[12]
[8] (2004) 144 FCR 1, [55] (Black CJ, French and Selway JJ).
[9] [2003] HCA 26, [24] (Gummow and Callinan JJ, Hayne J agreeing).
[10] [2017] FCA 591, [33]-[39] (Mortimer J).
[11] [2018] FCA 418, [9]-[13] (Allsop CJ).
[12] [2018] FCAFC 214, [36] (Perry, Derrington and Wheelahan JJ).
I accept that the applicant sought to engage protection obligations on the basis of his Bangash ethnicity and that this issue was squarely raised by the applicant. I also consider that it was squarely considered by the Tribunal. Structurally, the Tribunal’s analysis of the matters arising in relation to the merits review of the delegate’s refusal of the Protection visa application: (a) commenced with the identification of the applicant’s background, [11]; (b) provided an overall summary of the claims contained in the applicant’s two statutory declaration, [12], [14]; (c) examined the applicant’s pre-hearing and post-hearing submissions [13]-[20], [37]-[44] which focussed in part, relevantly, upon the issue of the applicant’s Bangash ethnicity; (d) considered the applicant’s evidence, [21]-[36] which again focussed in part upon the threat posed by ISIS and the Taliban and available country information [32]-[36].
A feature of the Tribunal’s consideration of the applicant’s evidence at [21]-[36] is that, while the nature of the ISIS and Taliban hostilities were discussed, otherwise the applicant did not appear to have given evidence at the hearing which directly or distinctly addressed the question of his Bangash ethnicity and tribal membership. Another feature of the Tribunal’s reasoning was that it accepted that the applicant was born and had grown up in Parachinar, Kurram Agency, in the Federally Administered Tribal Areas of Pakistan (FATA). It expressly accepted that he was a member of the Bangash tribe and was of the Shia Muslim religion: [47]-[48].
Having considered the content of the Protection visa application, the applicant’s statutory declarations, the evidence referred to in the Reasons together with the pre and post hearing submissions, I consider it is clear that the application for a merits review of the delegate’s decision and an assessment of whether the applicant claims to fear persecution were well-founded, proceeded on the basis of the applicant’s Shia Muslim faith, his Bangash ethnicity, his actual or imputed political opinion against extremist Sunni groups and their sympathisers as a Bangash Shia Muslim from Parachinar, his time spent in Australia as an asylum seeker and his membership of a particular social group comprising the Bangash tribe, members of the Bangash tribe from Parachinar/Kurrum Agency or the Parachinar Shias. The Tribunal stated that it had considered each of those matters separately and cumulatively: [57]. Upon my consideration of the matters in the Protection visa application, the applicant’s statutory declarations, the evidence referred to in the Reasons together with his pre and post hearing submissions, I also consider that the merits review of the delegate’s decision was evaluated by the Tribunal having regard to each of those matters.
Criteria for the grant of a Protection visa are contained in s 36 including that the applicant for a protection visa is a refugee.[13] For the purposes of the application of the Act and regulations, a person is a refugee if, relevantly, he or she is outside of his or her country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.[14]
[13] Par 36(2)(a).
[14] Section 5H(1)(a).
The existence of a well-founded fear of persecution may be established where a person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.[15] If one of those criteria is established and the other criteria in s 5J(1)(b)-(c) are made out, the applicant will generally satisfy the statutory definition of refugee provided by s 5H and so will meet the criterion for the grant of a Protection visa provided by par 36(2)(a).
[15] Par 5J(1)(a).
Caution is required in the evaluation of whether a Tribunal has dealt with a claim comprehensively and given proper, genuine and realistic consideration to the claim as it was made: BZD17 v Minister for Immigration and Border Protection.[16] There was force in the Minister’s submission that the applicant’s express reference to his Bangash tribal identity was employed so as to specify, and as a means of engagement with, the available criteria of the Refugees Convention rather than to identify a particular free-standing basis upon which the applicant held a fear of persecution. The applicant’s reliance on his Bangash identity provided the basis on which he sought to engage with the criteria in s 5J(1)(a) – race, nationality or membership of a particular social group. It was upon this basis that the applicant then expanded upon – or particularised – his claim to have a well-founded fear of persecution.
[16] [2018] FCAFC 94, [38] (Perram, Perry and O’Callaghan JJ) and cases cited.
In relation to the submission that the delegate had, but the Tribunal had not, given distinct consideration to the applicant’s membership of the Bangash tribe, the delegates consideration of the subject Bangash tribe, was assessed in the context of Section 4 of the decisional record, Is the fear well-founded? In that section of the decisional record, the delegate had dedicated two discrete paragraphs to this topic under this heading. The applicant complained that in contrast to the approach taken by the delegate, the Tribunal had not separately considered the risk to the applicant on the basis of his Bangash tribal identity.
The structure of the delegate’s decisional record was composed under the main heading of Is the fear well-founded? and the sub-heading, Evidence and Reasons. Under that sub-heading, the topic, Bangash tribal identity, was addressed by the delegate. When the matter proceeded by way of merits review before the Tribunal, the claims made were, in my opinion, as set out at [40] above. The Tribunal did consider each aspect of those claims, including his Bangash tribal identity. It expressly accepted that identity and examined the country information which bore upon it. The consideration which was given to that issue was not merely conclusory or in any way fleeting or cursory.
I do not accept that the applicant’s claim based on his Bangash tribal identity was not considered by the Tribunal. It clearly was. If I am wrong in that conclusion, I consider that the Tribunal dealt comprehensively with the issue of the applicant’s Bangash ethnicity.
It does not follow that if the Reasons failed to deal with a distinct claim to protection on the basis of Bangesh ethnicity in the manner suggested by the applicant that the claim was considered inadequately. In AVU15 v Minister for Immigration and Border Protection,[17] Bromberg J held that:
. . . it may be the case that inadequate reasons reflect an inadequate recording of what was considered rather than establish that the claim was inadequately considered. All of the circumstances need to be taken into account.
As the authorities illustrate, in some cases, the Tribunal’s consideration of a claim or integer of a claim will be subsumed in a finding or greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[18] The court should not too readily infer that a claim or integer had not been considered in cases where, as here, the Tribunal’s reasons are otherwise comprehensive and the issue has been identified. Here the issue of Bangash ethnicity was accepted.
[17] [2017] FCA 608, [12]. See also the analysis at [13]-[22].
[18] (2003) 236 FCR 593, [47] (French, Sackville and Hely JJ).
I do not accept that the Tribunal had merely recorded but not resolved the claim that the Bangash tribe was known to be opposed to the Taliban. The Reasons demonstrate that this fact was accepted by the Tribunal.
When the Reasons are examined it is plain that the Tribunal did understand, consider in detail and address adequately that integer of the applicant’s claim, being his Bangash ethnicity. It expressly recognised that the applicant’s Bangash ethnicity was recorded in his passport and national identity papers.
In my opinion there was not mere advertence to the applicant’s claim. The Tribunal well understood and dealt with that aspect of the applicant’s claim based upon his identity as a member of the Bangash tribe: [15]-[16], [48], [52], [57], [60]-[70]. The Tribunal’s analysis demonstrates active engagement with the applicant’s pre-hearing submission made in relation to this issue, including the challenge made to the delegate’s finding that the Bangash tribe were ‘less visible’ and that the applicant was a ‘Bangash Shia Muslim from Parachinar.’[19]
[19] See pre-hearing submission at Sections 2-3.
The Tribunal set out the applicant’s statutory declarations at [12] and [14] and addressed the matters contained in those declarations in a way which undermine the submission that the issue had been merely adverted to and not considered or merely dealt with in a conclusory manner.[20]
[20] See eg, Reasons, [71]-[72], [92].
The Tribunal well understood the claims that: (a) the Bangash tribe was opposed to the Taliban; (b) the applicant would be identified as Bangash, and; (c) being so identifiable, he would be at risk of harm from the Taliban. The country information addressing this issue was included in [71]-[83] and the Tribunal’s analysis of it proceeded expressly upon the basis that it took account of the applicant’s ‘Bangash ethnicity’ and his status as a ‘Bangash Shia Muslim from Parachinar’: [71]. The Tribunal accepted the risk posed to such persons but considered there was credible country information supporting a conclusion that the situation had improved significantly since 2014, including in the Kurram Agency: [72]. It made a finding that general peace had been restored to the Upper and Lower Kurram: [74], [77]-[83]. From my examination of the Reasons, when the Tribunal analysed the risk posed to the applicant on the basis of his Bangash ethnicity it expressly accepted that Bangash Shia Muslims faced sectarian violence from the Taliban and Daesh. In my view, the direct product of acceptance of that part of the applicant’s claims meant that the further evaluative tasks to be undertaken by the Tribunal were an objective assessment of the level of that risk as now existed and a predictive assessment of that risk in the future. As a result, the need to deal separately with the issue of the Bangash tribe in the manner that the delegate’s decisional record had done was otiose.
I consider that this aspect of the applicant’s claim was properly considered. I do not consider that error is disclosed in the manner in which the Tribunal considered the applicant’s Bangash ethnicity.
Ground 1 is rejected.
Ground 2 – fear of Daesh
Ground 2 reads:
The Tribunal failed to consider:
(a) the Applicant’s fear of; or
(b) whether the Applicant faced a ‘real chance’ of;
harm arising from Daesh.
Particulars
The Applicant’s fear of Daesh was expressed as that non-state actor being a then-new and emerging threat, and the harm that it could pose in the future; it was not expressed as a fear based on harm that Daesh had caused in the past. However, the Tribunal dismissed this claim at [85] by reference only to the general occurrence of non-Daesh harm in the past, even though Daesh was framed as a new threat.
The gravamen of the applicant’s submission on Ground 2 was that the Reasons disclosed an absence of consciousness in the Tribunal of the need to undertake a forward-looking assessment of the nature of the threat posed by Daesh.[21] This supposed failure was said to demonstrate a failure in the Tribunal to properly understand the true nature of the claim made respecting the threat posed by the rise of Daesh in Pakistan and, in turn, so led to a failure to properly deal with it. It was common ground that if the Tribunal had not properly understood the nature of the applicant’s claim it could not have properly considered it and so would have constructively failed to exercise jurisdiction.
[21] Applicant’s submission, [18].
The applicant submitted correctly that the reasons and decision of a Tribunal may be such that it is possible to infer a failure to consider a claim, relying for that purpose on the Full Court’s analysis in Minister for Immigration and Border Protection v MZYTS.[22]
[22] (2013) 230 FCR 431.
It was submitted that the applicant had made submissions at both a pre-hearing, hearing and post-hearing stage addressing the rise of Daesh, including that this had implications for Shia Muslims and that the presence of Daesh was spreading and growing with a consequential rise in a risk of persecution. Thus it was submitted that, properly understood, the applicant’s claim was that this risk was likely to increase in the future as the influence of Daesh expanded. It was emphasised that this claim was inherently forward-looking and so could not be answered solely by reference to past conditions as a predictor of future conditions.[23] Contrastingly, the applicant pointed to past conditions in support of this Ground, referring to the website statement containing the rare admission that the presence of Islamic State was growing in Pakistan and was more prominent than ever before. In doing so, the applicant drew attention to these references in both his pre-hearing and post-hearing submissions which I have addressed above.
[23] Applicant’s submission, [22], [26].
The applicant then addressed the Tribunal’s reasons at [84]-[85] that are extensive and which I have examined in detail. However, I do not consider that the resolution of this application is enhanced by the reproduction of that reasoning as block text and which I address below.
The applicant submitted that the Reasons disclosed that most prominent in the Tribunal’s consideration of the matter was that there had not yet been an attack by Daesh in Parachinar and that this served, it was said, to support a conclusion that the Tribunal had failed to consider the applicant’s claim that Daesh posed a new and emergent threat and, again, that this was not answerable by reference to past conditions in the region.
Resolution
The applicant correctly submitted that submissions had been made to the Tribunal concerning the rise of Daesh in Pakistan and that the risk posed by that emerging risk would increase with the passage of time.
As with Ground 1, the manner in which the applicant’s submission on Ground 2 was framed also rested upon a constructive failure to exercise jurisdiction. It was put that the Tribunal had not demonstrated a consciousness of the forward-looking nature of the threat posed by Daesh with the result, it was said, that the Tribunal had not properly understood the claim and so, had constructively failed to deal with it.
It was common ground that the Tribunal was required to deal with each of the claims which had been made by the applicant.
In MZYTS,[24] Kenny, Griffiths and Mortimer JJ stated at [34]:
Critically to the determination of the issues raised in this appeal, lawful determination of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well-founded.
[24] (2013) 230 FCR 431, [34].
In my view, the Tribunal did have a correct understanding of the applicant’s claim, including that he feared persecution as a result of an emerging rise in the presence of Daesh. The Tribunal’s reasons also provide a basis upon which to conclude that it correctly understood how it was to be determined whether that fear was objectively well-founded. The Reasons at [19] confirm that the Tribunal identified the submission. The Tribunal clearly took account of the applicant’s evidence and submissions respecting this issue also: [13]-[20], [32], [35], [37]-[44].
As the Applicant submitted, the Full Court’s holding in MZYTS rested upon a conclusion that the Tribunal had erroneously relied upon outdated country information in circumstances where more recent information had been available to it. This failure provided support for an inference that the Tribunal had failed to bring either a consciousness or active consideration to the subject claim that there was an increased risk of generally politicised violence due to the announcement of forthcoming elections and a breakdown in governmental authority.[25] As the Minister submitted, in MZYTS there had been an abject failure in not referring at all to a post-hearing submission.[26] The Full Court’s analysis in MZYTS may be seen as resting upon a broader principle that a Tribunal is obliged to consider all available information and not merely that which had been before a delegate.
[25] (2013) 230 FCR 431, [39].
[26] MZYTS, supra at [50].
In contrast with MZYTS, the present case is not one in which it was said that the Tribunal had failed to have regard to more current information respecting the emerging presence of Daesh and the risk that it posed. The present claim is distinguishable from MZYTS. The basis for the inference that was made in MZYTS – new information which had not been considered – is not present in this case. Nor can it be said that the Tribunal failed to consider the applicant’s post-hearing submission.
The Reasons at [84] confirm that the Tribunal: (a) began by stating that it had considered the applicant’s submission concerning the presence of Daesh in Pakistan; (b) recognised the applicant’s direct challenge made to the DFAT statement that there was no credible information as to the presence of Daesh in Pakistan; (c) referred expressly to the applicant’s pre-hearing and post-hearing submissions on this subject; and (d) identified each of the eight articles and reports that had been relied upon concerning the rise of Daesh including the: (i) Express Tribune, 2016; (ii) Jamestown Foundation, 2016; (iii) Terrorism Portal; (iv) Newsweek Pakistan, 2016; (v) a report of an independent analyst, Hasan Askari; (vi) Shiite News, 2016 as to the position in the Kurram Agency; (vi) the dropping of pamphlets in 2014; (vii) Dawn Newspaper, 2014; and (viii) The Times, 2016.
The Reasons at [85] also confirm that the Tribunal had then: (a) given careful consideration to the applicant’s submissions respecting the rise of Daesh as a basis on which he feared persecution; (b) accepted there were reports of persons pledging allegiance to Islamic State and of militant activity being attributed to Islamic State; (c) noted the statement by the commentator, Hasan Askari, that Islamic State was just providing a new platform for existing extremists who had grown disenchanted with their old groups; (d) accepted that anti-Shia militants operated across Pakistan including the Kurram Agency; (e) weighed the country information supplied and obtained relating to the level of anti-Shia violence; (f) found that the security situation in Pakistan had improved significantly since early 2014, including in the Kurram Agency; (g) found that there had not been attacks in Parachinar; (h) found that there had been a 44% decrease in such incidents in the period between the last quarter of 2015 and the first quarter of 2016; and (i) concluded that the applicant did not face a real chance of serious harm from Daesh or its sympathisers should he return to Pakistan.
The Tribunal also acknowledged the changing and fluctuating nature of the threat posed by Daesh at [86]-[87]. It also accepted that, despite a generalised decline in militant and counter-militant incidents in the FATA region since 2014, there continued to be some incidents of sectarian violence. Those matters were recognised and accepted.
The manner of the Tribunal’s analysis at [84]-[87] undermines the submission that the Reasons disclose an absence of consciousness or consideration of the claim respecting the threat posed to the applicant as a Shia Muslim by the rise of Daesh. In particular, at [87], the Tribunal considered that the country information supported a conclusion that there had been a sustained and significant improvement in the security situation in Kurram Agency since 2014 and, despite an incident in 2015, there was nothing to indicate that a truce which had been struck in 2013 between Shia Turis and Sunni Bangash was not holding and that the situation remained relatively stable. In this part of its analysis, the Tribunal cited Minister for Immigration and Ethnic Affairs v Guo[27] and recognised that conjecture and surmise had no role to play determining whether a fear was well-founded and that a claim to fear was not well-founded if it was a matter of mere speculation. In Guo, the plurality held[28] that “A fear is ‘well-founded’ when there is a real substantial basis for it.” The Tribunal had identified and applied this principle.
[27] (1997) 191 CLR 559, 572.
[28] Ibid. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
In MZYTS, the Full Court stated that:
It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past.
The Full Court also observed at [35] that the determination, on an objective basis, of a person’s fear formed the central part of the predictive or speculative task which could “only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there.” In their Honour’s further analysis at [38], the Tribunal could not lawfully undertake that task without a consciousness of the material – the submissions, evidence and other material advanced by the applicant “most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground.” The Full Court dismissed the appeal on the basis that the Tribunal’s reasons did not disclose that the Tribunal had understood (and had not been conscious of), the risk posed by the evolving political environment, did not disclose any weighing or evaluation of the material and had not considered a post-hearing submission which bore on the issue: [39], [50].
More recently, in CPE15, [59] Mortimer J said of the need to assess predictively the risk of harm to an applicant if returned to their country of nationality in the future, that the period of time during which that assessment must be made, was to be identified as a reasonably foreseeable time. Her Honour concluded that:
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. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
In this context, the Minister accepted that the Tribunal needed to do more than speculate in relation to the question of future risk and that it needed to speculate reasonably. In AUV15 v Minister for Immigration and Border Protection,[30] O’Callaghan J distilled the following principles which governed the use to be made by a Tribunal in the discharge of its jurisdictional task of assessing the risk of harm to a protection visa applicant and the use of country information in relation to that task:
(1) As a general proposition, a tribunal does not fall into error when it makes a choice between competing information. The choice of, and weight to be given to, such information is a matter for the Tribunal;[31]
(2) In order to complete its jurisdictional task, a Tribunal is not required expressly to record and comment upon each particular piece of information or material before it, and is “not obliged to set out every detail of the reasoning process which [it] eventually employed for the [applicant’s] consideration”;[32]
(3) A failure to have regard to relevant material which is so fundamental that it goes to jurisdiction may in some circumstances constitute jurisdictional error;[33]
(4) The question of the accuracy of the country information is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of country information, it would be engaging in merits review. The Court does not have power to do that;[34]
(5) Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal;[35]
(6) The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.[36]
[30] [2018] FCA 812, [27].
[31]Citing Aporo v Minister for Immigration & Citizenship (2009) 113 ALD 46; [2009] FCAFC 123 at [45]; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63] (per Lander J); MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [19] (@@ J).
[32]Citing Re Ruddock and Anor; Ex parte S154/2002 (2003) 201 ALR 437; [2003] HCA 60 (per Gummow and Heydon JJ at [54]).
[33]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]; WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319.
[34]Citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] (@@ J).
[35]Citing NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048 (McKerracher J) (at [31]-[32]);
[36]Citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]); MZYJJ v Minster for Immigration and Citizenship [2011] FCA 957 (Tracey J) at [22].
In my opinion, nothing in the statements above from Guo, MZYTS, CPE15 or AUV15 support a conclusion that the Tribunal approached this matter upon an incorrect understanding of the applicable principles.
I consider that the Tribunal did base its assessment upon the currently available materials and undertook the predictive assessment of the applicant’s exposure to a risk of persecution. It did so by reference to the ambulatory concept of whether the applicant would be exposed to such risk in the reasonably foreseeable future. Again, there was some force in the submission that what the applicant was seeking to achieve was to engage with a merits assessment of the decision.
In my view, the Reasons need to be read fairly and as whole and that, when read from this perspective, it is clear that the Tribunal had a consciousness of the applicant’s claim and it engaged in an active intellectual evaluation of that claim: Carrascalao v Minister for Immigration and Citizenship;[37] Minister for Immigration and Citizenship v Khadgi.[38] A finding that a Tribunal had not engaged in an active intellectual evaluation of that claim should not be lightly made.[39]
[37] (2017) 252 FCR 352, [29]-[63] (Griffiths, White and Bromich JJ).
[38] (2010) 190 FCR 248, [57] (Stone, Foster and Nicholas JJ).
[39] Carrascalao, supra (2017) 252 FCR 352, [38]
In particular, I am satisfied that the Tribunal was fully conscious of the applicant’s claim that the threat posed by Daesh was emergent and would increase in the future. The Tribunal considered that evidence and reached a view which I consider was open on the material before it.
The Tribunal proceeded to consider the risk of both sectarian and non-sectarian violence in the FATA region and accepted that there was some risk to the applicant but concluded that that risk, on the whole of the evidence, was remote: [89]. The Reasons do not support a conclusion that the Tribunal failed to understand or undertake a forward-looking assessment of the nature of the threat posed by Daesh and what impact this had upon an evaluation of the risk of persecution. In my opinion, it did so in accordance with settled principle.
Ground 2 is rejected.
Conclusion
Despite the careful and considered submissions of counsel for the applicant I am not satisfied that the Tribunal’s decision is attended by error and thus error of a kind which is jurisdictional as may attract an entitlement to relief. The application must be dismissed.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 18 December 2018
[29]Citing Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 39, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573.
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