Cre16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 563
•28 May 2021
FEDERAL COURT OF AUSTRALIA
CRE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 563
Appeal from: CRE16 v Minister for Immigration & Anor [2020] FCCA 1221 File number: VID 390 of 2020 Judgment of: MURPHY J Date of judgment: 28 May 2021 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court dismissing application for judicial review of decision of Administrative Appeals Tribunal to affirm decision not to grant appellant a protection visa – whether Tribunal considered and dealt with one of the appellant’s claims to fear harm – appeal dismissed Legislation: Migration Act 1958 (Cth) s 65 Cases cited: S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Date of hearing: 25 May 2021 Counsel for the Appellant: Mr A Aleksov Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr C Hibbard Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 390 of 2020 BETWEEN: CRE16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
28 MAY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
The appellant appeals from the judgment of the Federal Circuit Court delivered on 22 May 2020 dismissing his application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal made on 24 August 2016. The Tribunal had affirmed the decision of a delegate of the first respondent, now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the appellant a Protection visa (the visa) under s 65 of the Migration Act 1958 (Cth).
For the reasons I explain the appeal must be dismissed.
THE FACTS AND PROCEDURAL HISTORY
The appellant is a Shia Muslim and a member of the Turi tribe, from the Kurram Agency, Federally Administered Tribal Areas (FATA), Pakistan. He arrived in Australia on or about 21 June 2012, after a boat he was travelling in sank. He was rescued by the Australian Navy and taken to Christmas Island.
On 15 November 2012, the appellant applied for the visa. In his application, the appellant claimed to seek protection for the following Refugees’ Convention reasons:
(a)religion: he feared persecution from the Taliban (and members of the Sunni Muslim majority) due to his Shia religion;
(b)ethnicity: he feared persecution due to his Pashtun ethnicity (and being a member of the Turi tribe);
(c)political views: he feared persecution due to his imputed anti-Taliban political views, or views generally supportive of the Turi tribe/Shia Muslims; and
(d)particular social group: he feared persecution due to his membership of the particular social groups “educated young Shia Muslims” and/or “members of the Turi tribe”.
In a statement made 13 November 2012 the appellant recounted:
(a)the death of his cousin in 2008 at the hands of the Taliban when travelling on a road near the appellant’s village;
(b)the disappearance and presumed death of a friend in 2011 when travelling on the Parachinar-Peshawar road, presumably at the hands of the Taliban;
(c)numerous Taliban bomb attacks on villages around his area in 2011, including his home village;
(d)his attendance at protests in Islamabad and Peshawar in relation to the Taliban’s closure of the roads around Parachinar in 2011 and the lack of safety for Shias in that area;
(e)his studies at university and membership of a Shia social organisation for students, the Imamia Students’ Organisation (ISO); and
(f)anonymous telephone calls threatening to kill him by callers speaking Pashto in January 2012. He feared that he was being threatened because he was a member of ISO or had been involved in the protests, or because he is a Turi Shia.
The delegate’s decision
On 15 October 2014, a delegate of the Minister refused to grant the appellant the visa. The delegate accepted that the appellant had a well-founded fear of persecution as a Turi Shia living in the Kurram Agency, but found that he would be able to relocate within Pakistan.
The application to the Tribunal
On 12 November 2014, the appellant applied to the Tribunal for review of the delegate’s decision.
On 8 July 2016, the appellant’s representative provided written submissions to the Tribunal, which raised a further claim about an attempt to kidnap the appellant’s father in January 2016.
On 13 July 2016, the appellant attended a hearing before the Tribunal. He was assisted at the hearing by his migration representative and a Pashto interpreter.
On 3 August 2016, the appellant’s representative provided further written submissions to the Tribunal, which addressed:
(a)the attempt to kidnap the appellant’s father and a related newspaper report, which the Tribunal member had suggested at the hearing may not be genuine;
(b)the current situation in the Kurram Agency; and
(c)whether it was reasonable, in the sense of practicable, for the appellant to relocate within Pakistan.
On 24 August 2016, the Tribunal affirmed the decision under review. In reaching its decision, the Tribunal:
(a)summarised the relevant factual background and applicable law (at [1]-[11]);
(b)summarised the appellant’s claims and the submissions made by him and his representatives, as well as the conduct of the hearing before the Tribunal (at [12]-[41]);
(c)considered the claims made by the appellant in relation to particular incidents, and:
(i)accepted that the appellant’s cousin had been killed, his friend had been kidnapped and was presumed dead, there was a bomb attack in Peshawar in June 2011 and that the appellant had attended protests (at [45]-[53]); and
(ii)did not accept that the appellant had received threatening telephone calls in Pashto or that his father had been the subject of a kidnapping attempt (at [54]-[55]);
(d)considered the appellant’s profile more generally, and found that he did not have, and would not in the reasonably foreseeable future have, a profile beyond that of any other Turi Shia (at [56]-[62]);
(e)considered country information about the security situation in the Kurram Agency by reference to the appellant’s claims under the Refugees’ Convention, and concluded that there was not a real chance that the appellant would suffer persecution now or in the reasonably foreseeable future if he were to return to his home village (at [63]-[83]); and
(f)considered whether Australia owed the appellant complementary protection obligations and concluded that it did not (at [85]-[88]).
The application to the Federal Circuit Court
On 20 September 2016, the appellant applied to the Federal Circuit Court seeking judicial review of the Tribunal’s decision.
On 13 January 2020, the appellant filed an amended application containing two grounds. One of those grounds was subsequently abandoned, so that the sole ground considered by the primary judge at the hearing on 11 February 2020 was as follows:
The Tribunal failed to consider the whole of the applicant’s claim in relation to risks arising from insecurity on the roads around his home area in Pakistan.
On 22 May 2020, the primary judge handed down judgment dismissing the application. The primary judge concluded that the Tribunal had considered the substance of the appellant’s claims and, read fairly and as a whole, the Tribunal’s reasons showed that it dealt with the risks of harm the appellant would face on return to Kurram Agency area including risks associated with travelling on the roads around his home area of Parachinar.
THE APPEAL TO THIS COURT
The appellant now appeals against the decision of the Federal Circuit Court. The amended notice of appeal dated 27 April 2021 raises the following ground of appeal:
The Federal Circuit Court erred in not finding that the Tribunal has failed to consider the whole of the applicant’s claim with respect to travel on the Thal-Parachinar road, even assuming it to be open, and that the decision of the Tribunal was affected by jurisdictional error for that reason.
THE APPELLANT’S SUBMISSIONS
The appellant clearly articulated a claim that upon return to his home area of Parachinar, Kurram Agency in Pakistan, outright road closures as a result of Taliban activities against Shia Muslims, or the Taliban’s refusal to allow members of his sect to travel on those roads, or the risks of being kidnapped or killed by the Taliban associated with any such travel, would seriously affect his life in that town, including the ability to obtain medicines, food, and to find work. He said that in his initial statement by reference to his past experience, and he also said it in his interview with the delegate. The delegate noted that the appellant “also fears the dangers associated with travelling to and from Parachinar, affecting his ability to work, attend religious events, and obtain healthcare.” The appellant contended, and the Minister did not dispute, that when his claims are taken together he was expressing concern about the risk he would suffer harm not just through the Taliban closing the roads around Parachinar, but also through the risk the Taliban posed for Turi Shias travelling on those roads, when they are open.
It is common ground that the Tribunal accepted the appellant’s claims as to his past experiences in relation to the roads around Parachinar. The Tribunal (at [48]) accepted the appellant’s account:
(a)that the security situation in Parachinar deteriorated from 2007, that the road to Peshawar was often closed, and that travel along the road often had to be by convoy; and
(b)violent clashes between the Shia Turi tribe and their Shia allies on the one hand and Sunni extremist groups on the other hand resulted in violent clashes beginning in April 2007 which led to the road between Peshawar and Parachinar being closed between 2007 and 2011, causing acute shortages of essential items in Kurram Agency.
Based on country information the Tribunal said that the Taliban effectively cut Parachinar off from the rest of Pakistan from 2008 to 2010, which seriously affected the livelihoods of those living in Kurram Agency.
The appellant also noted that the Tribunal recognised that the appellant’s past experiences were not related just to road closures but also to the risks of harm involved in travelling on the roads when they were open (at [60]). That can be seen in the Tribunal’s acceptance that “from 2007-2011 it was very dangerous along sections of the Peshawar-Parachinar Road.”
The appellant submitted, however, that when the Tribunal assessed the risk of harm he would face on return to his home area of Parachinar it focused its attention too narrowly, and only on the question of road closure. The sole ground of appeal is based in the Tribunal’s reasons (at [76]) where it said:
…Giving consideration to the advice regarding the security situation across Kurram Agency and Pakistan in general, discussed above, including the DFAT advice regarding the Thal-Parachinar road being open, used by both civilian and military vehicles, the maintenance of armed checkpoints along the road and there having been no major security incidents along the road in 2015, the Tribunal finds that Kurram Agency is no longer cut-off from the rest of Pakistan. The Tribunal is satisfied that there has genuinely been a significant and sustained improvement in the security situation from 2014.
The appellant submitted that the Tribunal’s conclusion that Kurram Agency “is no longer cut-off from the rest of Pakistan” reveals that it took too narrow a view of his claims, as he was not just concerned about the risks associated with the closure of the Thal-Parachinar road. He was also concerned that, if the road was open, travelling on it was dangerous for Turi Shias because of the Taliban, and that accordingly he would have to either risk suffering harm or not travel on the road at all. The appellant submitted that the correct question for the Tribunal was not whether he faced a real risk of harm because Parachinar was “cut off” from the rest of Pakistan, but whether he faced a real risk of harm if he were to travel on that road, presuming it to be open. He argued that was obviously a serious matter, given that country information showed that the authorities had deemed it necessary to have armed checkpoints along the road, thus showing that security remained a concern.
The appellant argued that in finding (at [76]) that the Thal-Parachinar road was open and that Kurram Agency was no longer “cut-off” from the rest of Pakistan, the Tribunal was responding to his claim that he faced a risk of harm through road closure because of the Taliban, which might cause acute shortages of essential items in Kurram Agency and inhibit him in obtaining necessary medical care or working. He submitted that the Tribunal could not be said to be responding to his claim that he faced a real chance of harm at the hands of the Taliban if he travelled on the Thal-Parachinar road, which journey he would be required to regularly undertake in order to undertake paid employment.
The appellant submitted that the learned primary judge was wrong to find that the Tribunal considered and dealt with the appellant’s claim in relation to the dangers associated with travelling on the Thal-Parachinar road by determining the risks to harm he faced having regard to the broader security situation in Kurram Agency. He contended that point failed to engage with the separate question about the risks to safety of travelling on the road, assuming the road to be open.
CONSIDERATION
I am not persuaded that the Tribunal fell into jurisdictional error as alleged.
First, it is plain that the appellant’s claims about the risk of harm he would face on return to Pakistan was not restricted to the risks arising from travelling on the roads around Parachinar. His claim that, as a Turi Shia, on return to Kurram Agency he would face a risk of being kidnapped, injured or killed by the Taliban or other anti-Shia militant groups if he travelled on those roads, was part of his broader claim about the risks of harm he would face in Kurram Agency. For example, in his initial statement and in subsequent submissions he claimed that:
(a)in 2011 the Taliban carried out a number of bomb attacks in Peshawar, including one at a supermarket that was very close to where he lived;
(b)in 2012 the Parachinar-Peshawar road was “mostly closed off by the Taliban and the Taliban were carrying out a lot of attacks on the villages around my area”, including missile attacks on his village of Sameer from a neighbouring Sunni village;
(c)in January 2012 he received threatening telephone calls from unknown callers who spoke in Pashto. He feared that he was being threatened because he was a member of ISO or had been involved in the protests, or because he is a Turi Shia;
(d)in December 2015 there had been a bomb blast in a clothes market in Parachinar in which around 15-20 Shia Muslims were killed and around 40-45 were injured;
(e)he would be targeted firstly as a Shia Muslim and also as a member of the Turi tribe; and
(f)he would not be safe anywhere in Pakistan as Shia Muslims are being targeted throughout Pakistan and he does not consider the Pakistan government is able to provide protection.
Broadly, his claim concerned the risk of harm he would face in Kurram Agency (and Pakistan more generally), and the claimed risk of harm associated with travelling on the Thal-Parachinar road was part of that.
Second, in relation to risk of harm associated with the Thal-Parachinar road, it is clear that the appellant’s claim to fear such harm had two elements:
(a)first, he feared that he would suffer harm because the road would again be blocked by the Taliban. He said, and the Tribunal accepted, that when the road was “mostly closed off” in 2012 life became very difficult in his village because it was hard for people to get access to medical supplies or proper treatment, and the cost of food went up significantly because of the difficulty getting regular supplies into the village; and
(b)second, he feared that he would suffer harm at the hands of the Taliban when travelling on the Thal-Parachinar road when it was open. He said, and the Tribunal accepted, that in 2012 “due to dangers along the road I could not travel to a different area for work at this time”.
Third, it is sufficiently clear that the Tribunal recognised the two elements of his claim in relation to risks of harm associated with the Thal-Parachinar road. That can be seen at the following paragraphs of its reasons:
(a)in setting out his claims (at [12]) the Tribunal noted:
(i)his claim that in 2012 the Thal-Parachinar road was “mostly closed off by the Taliban” which made it very difficult to access medical treatment and supplies, made food more expensive and made it difficult to get employment; and
(ii)it was too dangerous to travel to an area outside of Parachinar for work.
The Tribunal there recognised both elements of the claim;
(b)the Tribunal noted (at [48]) that the Taliban effectively cut Parachinar off from the rest of Pakistan from 2008 to 2011, and that the closing of that main highway seriously affected the livelihoods of those living in Kurram Agency.
The Tribunal there recognised the first element of the claim;
(c)the Tribunal said (at [60]) that it accepted that “from 2007-2011 it was very dangerous along sections of the Peshawar-Parachinar road and the road was often blocked as a consequence.”
The Tribunal there recognised both elements of the claim.
To a significant extent the appeal turns on whether it is appropriate to construe the Tribunal’s finding (at [76]) that Kurram Agency was no longer “cut off” from the rest of Pakistan as meaning:
(a)that the Thal-Parachinar road was no longer absolutely closed by Taliban activities, such that essential supplies could get through; or also
(b)that the Thal-Parachinar road was no longer closed by Taliban activities, such that Turi Shias could travel on the road without facing a real chance of harm.
On a fair reading of the Tribunal’s reasons as a whole and with an eye not keenly attuned to discernment of error, it is appropriate to understand the Tribunal as embracing the second alternative and the alleged jurisdictional error is therefore not present. I am not persuaded that the Tribunal neglected to decide whether, if the Thal-Parachinar road was open, the appellant would face a real chance of harm if he travelled upon it. The Tribunal clearly recognised that the appellant claimed that, when the road was open, it was dangerous for Turi Shias to travel on, and several matters tend to show that the Tribunal considered but rejected that claim. In my view the Tribunal did not only rely upon the fact that Parachinar was no longer “cut off” from the rest of Pakistan.
The Tribunal relied on the DFAT report (at [76]) which stated that:
(a)the road was used by both civilian and military vehicles. It would be illogical or irrational for the Tribunal to accept that a road was being (and I infer could in the future be) used by civilian vehicles if in doing so the civilian drivers or passengers faced a real chance of serious harm at the hands of the Taliban. Having regard to the otherwise logical nature of the Tribunal’s reasons there is no proper basis to conclude that it was being so irrational;
(b)the security forces maintained armed checkpoints along the Thal-Parachinar road. The appellant argued that this showed that the road was still dangerous. One might readily accept that, if the Taliban was left unchecked, there would be a risk of harm to Turi Shias travelling on that road. But I take the Tribunal’s acceptance of the DFAT report as indicating that the presence of the armed checkpoints meant that the Taliban was being prevented from making it dangerous to travel on; and
(c)there had been no major security incidents along the road in 2015. The Tribunal’s acceptance of the DFAT report in this regard indicates that it understood that the issues in the application included whether the Thal-Parachinar road was safe to travel on, and the fact that there is been no major security incidents in the previous year was probative in that regard. It will, of course, often be of assistance to look to past occurrences when attempting to predict the likelihood of similar occurrences in the reasonably foreseeable future (S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473 at [74] (per Gummow and Hayne JJ)) and on a fair reading that is what the Tribunal was doing.
Those matters, read together with the Tribunal’s noting of and acceptance of the appellant’s claims about the dangers of travelling on the Thal-Parachinar road (at [12], [48] and [60]) tend to show that the Tribunal understood and rejected the appellant’s claim that the road was not secure for travellers when it was open.
Fourth, and alternatively, on a fair reading of its reasons the Tribunal considered and rejected the appellant’s claim that travelling on the Thal-Parachinar road, when it was open, involved a risk of harm for Turi Shias, doing so as part its rejection of his broader claim about the risk of harm posed by the Taliban and other anti-Shia militant groups throughout Kurram Agency.
The transcript of the Tribunal hearing shows that the member put the DFAT report of 15 January 2016 to the appellant, which said that the Thal-Parachinar road remains open; that there have been no major security incidents on the road in 2015, that federal security forces continue to maintain armed checkpoints along the road, and that the road is used by both civilian and military vehicles. The member also put to the appellant that 3,700 families had returned to their places of origin in 2014 including Parachinar and surrounding villages in Upper Kurram Agency, and the assessment of those who had returned had been reasonably positive about the security situation. The member said that returnees had stated that there was no restriction on their movement and they could freely move even though they have to go through checkpoints. In responding to that, the appellant did not deny that the security position in Parachinar had improved. Instead, he emphasised that over the years the security situation around Parachinar fluctuated and the dangers associated with sectarian violence against Shias were cyclical, such that the Tribunal should be satisfied that the appellant would face a real chance of harm in the reasonably foreseeable future.
In post-hearing submissions the appellant said that, while the DFAT report was presented on the premise that the security situation around Parachinar had improved, he contended that there was still a real chance that he would face harm at the hands of the Taliban because the security situation is “fluid and changing” and “a short-term decrease in fatalities cannot be viewed as indicative of a meaningful change for religious and ethnic minorities in Pakistan.” As the Minister submitted, the appellant’s emphasis before the Tribunal was not that the Thal-Parachinar road remained unsafe and would be unsafe to travel on in the future, but rather that while country information indicated that the security situation had improved, that improvement could not be guaranteed to continue given the “fluid and changing” security situation in Kurram Agency.
The appellant did not contend that the Tribunal failed to consider and deal with his broader claim regarding the risk of harm he would face on return to Kurram Agency. In any event it is plain that the Tribunal did so, and also with the cyclical history of conflict in the region (at [72], [75] and [80]), it having accepted the appellant’s claim regarding the dangers of travelling on the Thal-Parachinar in the past (at [48] and [60]). As the Minister submitted, the Tribunal did so after considering (at [70] and [76]) country information that indicated that it was the security forces and not the Taliban who now maintained control along the road. The Tribunal concluded that:
(a)there has “genuinely been a significant and sustained improvement in the security situation” in Kurram Agency since 2014 (at [76]); and
(b)“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/TPP or other anti-Shia extremist groups or associated groups if he returned to Kurram Agency” (at [80]).
In the circumstances I am not persuaded that the fact that the Tribunal did not expressly state that it had considered and rejected the appellant’s claim that he would face a risk of harm if he travelled on the Thal-Parachinar road means that it did not do so. That is an inference not too readily to be drawn where, as in the present case, the Tribunal’s reasons are otherwise comprehensive and the issue was expressly identified by the Tribunal: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ). In the circumstances of the present case the appropriate inference is that the Tribunal understood that claim and its finding on that issue was subsumed into its findings of greater generality in relation to the risk of harm he would face on return to Kurram Agency.
I can discern no error in the primary judge’s dismissal of the application for judicial review of the Tribunal’s decision. It is appropriate to dismiss the appeal and order the appellant to pay the Minister’s costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy. Associate:
Dated: 28 May 2021
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