CTM19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 812
•25 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 812
File number(s): MLG 2269 of 2019 Judgment of: JUDGE SYMONS Date of judgment: 25 October 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal correctly understood the nature of the applicants’ claim to apprehend generalised violence – whether the Tribunal’s evaluation of country information manifests error – Tribunal’s obligation to consider a claim either expressly made or arising from the material – no error in Tribunal’s understanding of claim – characterisation of country information open to the Tribunal – application dismissed with costs Legislation: Migration Act 1958 (Cth) s 36 Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission: 22 August 2023 Date of hearing: 22 August 2023 Place: Melbourne Counsel for the Applicants: Mr A Aleksov Solicitor for the Applicants: Playfair Legal Pty Ltd Counsel for the First Respondent: Mr J Barrington Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2269 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTM19
First ApplicantCTN19
Second ApplicantCTO19
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 OCTOBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for judicial review filed on 17 July 2019 and amended on 3 July 2023 be dismissed.
3.The first and second applicant pay the first respondent’s costs fixed in the amount of $7467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 17 July 2019 and amended on 3 July 2023, the applicants seek judicial review of a decision of the second respondent (the Tribunal) made on 20 June 2019, to affirm a decision dated 15 July 2015 of a delegate of the first respondent (the Minister) to refuse to grant the applicants a Protection (subclass 866) visa (the visa). The Minister opposes the application. The Tribunal enters a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicants are a family from Pakistan. The first applicant arrived in Australia on 9 July 2008 as the holder of a temporary student visa. The first applicant was granted two further temporary student visas, the final visa being granted on 8 June 2012 (CB 182).
On 7 November 2013, the first applicant applied for the visa (CB 10-36). The second applicant (his wife) was included as a secondary applicant on the application (CB 10-12; 36- 60). The third applicant (their son) was added to the visa application after his birth in April 2014 (CB 149-151).
In his visa application, the first applicant’s claims for protection included (CB 27-30):
(a)When he returned to Pakistan for a holiday in 2011, he came to learn he was no longer safe in Pakistan because of his family background, which worsened in 2012 when his brother participated in “many operations on war against terror against Taliban”.
(b)When he married in 2012, his wife was not able to work or move freely because of the “threat to life” as the Taliban tracked his brother, a serving officer in the Pakistan Army at the rank of Major.
(c)The first applicant brought his wife to Australia for her and his own safety.
(d)He and his family experienced an attack by the Taliban on 12 April 2013. The first applicant also experienced an attack on his way to board his flight back to Australia on 1 May 2013. He was able to catch a flight the next day.
(e)The first applicant’s father served in the Pakistan army for over two decades and took part in many operations against the Taliban, who have “tracked the family info” and the family has received threat notes and attacks.
On 15 July 2015 a delegate of the Minister refused the applicants’ application for the visa. The delegate found that the first applicant (and consequently, the second and third applicants) was not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act (CB 180-196).
On 24 July 2015, the applicants applied to the Tribunal for review of the delegate’s decision (CB 203-226).
On 9 November 2016, the Tribunal wrote to the applicants, inviting them to attend a hearing on 18 January 2017 (CB 247 – 257).
On 12 January 2017, the applicants’ representative provided pre-hearing submissions which identified claims that the first applicant feared persecution because of his membership of a particular social group (being his association with family members who were or are serving in the Pakistani army) and because he would be imputed with a political opinion in opposition to militant groups such as the Taliban and others, because of his association with these family members (CB 267 – 274).
On 18 January 2017, the applicants attended a hearing at the Tribunal with the assistance of their representative and an interpreter in the Urdu and English languages (CB 275 – 277). The hearing was adjourned, and the applicants were requested to provide post-hearing submissions.
On 1 February 2017, the applicants’ representative provided a post-hearing submission regarding the issue of relocation within Pakistan and a translation of a threat letter said to be from the Taliban (CB 286-291).
On 28 February 2017, the applicants’ representative wrote to the Tribunal requesting that it take into account country information regarding the security situation in Pakistan, including in Lahore.
On 29 November 2017, the Tribunal invited the applicants to appear at a further hearing, as the application for review was re-constituted to another Tribunal member (CB 294-297). The applicants attended hearings on 1 March 2018 and on 27 July 2018 (CB 343; 394-396).
On 23 August 2018, the applicants’ representative provided post-hearing submissions which addressed comments made during the hearing and the topic of relocation. (CB 401-416).
On 21 June 2019, the Tribunal affirmed the decision of the delegate to refuse the applicants the visa and prepared a written statement of decision and reasons (Reasons) (CB 424– 453).
THE DECISION OF THE TRIBUNAL
The short point raised in this judicial review application focuses on the Tribunal’s findings and reasoning recorded at [32] to [49] of the Reasons. It is necessary to reproduce at least some of these passages in their entirety.
Paragraph [32] was the penultimate paragraph appearing under the heading “Principal applicant claims”. It reads:
[32]….the applicants’ claims to hold a well-founded fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of the principal applicant being a close relative of members of the Pakistan Armed Forces by agents of the Taliban in Pakistan comprise the following aspects:
•The applicants fear harm in Pakistan due to generalised acts of violence perpetrated throughout that country by agents of the Taliban in Pakistan over the years prior to 2012 and since that time;
•The applicants fear harm in the Khyber Pakhtunkhwa, Pakistan and in all places throughout Pakistan from agents of the Taliban in Pakistan now and in the reasonably foreseeable future due to the principal applicant being the brother of a current senior Pakistan army officer and the son of a former Pakistan army serviceman;
•The applicants fear harm in the Khyber Pakhtunkhwa, Pakistan and in all places throughout Pakistan from agents of the Taliban in Pakistan now and in the reasonably foreseeable future due to the principal applicant being imputed by them as a Muslim apostate;
•The applicants claim that they will be unable to work and earn a livelihood anywhere in Pakistan;
•The applicants claim that they will have no freedom of movement in Pakistan;
•The applicant's claim that they will be unable to access adequate State protection in Pakistan.
The Tribunal noted that these claims were addressed below and then under the first heading of “Generalised acts of violence by agents of the Taliban prior to 2012 and since that time” extracted an item of DFAT country information and made observations about what this information purported to record as follows:
[34]The Tribunal notes the applicants’ evidence about the generalised nature of violence in Pakistan prior to 2012. This broadly coincides with Department of Foreign Affairs and Trade (DFAT) country information referred to by the Tribunal as follows:
2.66.The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
2.67. Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
2.68. Up to 262 reported terrorist attacks, including 19 suicide and gun-and suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
2.69. The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent.)
The Tribunal reproduced an extract on “Security Operations” from the same DFAT publication (being the DFAT Country Information Report Pakistan (20 February 2019) (DFAT Report)) before making observations including those recorded at [36] and findings including those recorded at [45] and [46]. These were in the following terms:
[36]Two things emerge from an assessment of this and other comprehensive country information about the general security situation in Pakistan (including that submitted by the applicants’ representatives); firstly that there is a generalised experience of religious, sectional and other forms of violence that is difficult for members of the Australian community to comprehend. The agents of harm perpetrating this generalised criminal violence include, but are not limited to, the Taliban in Pakistan. Second, security operations conducted by agencies of the Pakistan state have had measurable success in addressing this environment of generalised criminal violence.
…
[45]Given that generalised violence evident in Pakistan as described in the country information summary extracted above is by definition random and perpetrated by unrelated criminal organisations, it lacks the requisite systematic quality that gives rise to protection obligations under the Convention.
[46]The Tribunal also notes, with reference to the complementary protection assessment at s 36(2)(aa) of the Act, the qualification at s 36(2B)(c) that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’. Although differently framed, this qualification bears some similarity to considerations relating to assessing whether the harm feared in a country is systematic and discriminatory.
The Tribunal found, reflecting this reasoning, that the applicants’ claim to hold a well-founded fear of persecution in Pakistan on account of generalised acts of violence throughout that country by agents of the Taliban in Pakistan prior to 2012 and since that time, did not give rise to protection obligations in Australia under either s 36(2)(a) or s 36(2)(aa) of the Act (Reasons, [49]).
The Tribunal also found that the applicants were unable to satisfy ss 36(2)(a) or 36(2)(aa) by reason of: the first applicant being the brother of a current senior Pakistan army officer and the son of a former Pakistan army serviceman (Reasons, [66]), the first applicant being an imputed Muslim apostate (Reasons, [72]), the applicants being unable to work and earn a livelihood anywhere in Pakistan (Reasons, [76]), the applicants having no freedom of movement in Pakistan (Reasons, [81]), and certain identified Taliban threats addressed to the first applicant’s brother in Pakistan since 2013 (Reasons, [86]). The applicants do not challenge any of these findings.
APPLICATION FOR JUDICIAL REVIEW
Applicants’ ground and submissions
The applicants identify a single error in their amended application for judicial review filed on 3 July 2023 which is that the Tribunal failed to give proper, genuine and realistic consideration to the DFAT report at Reasons [34], to be inferred from its characterisation of that material at Reasons [45].
Their argument, which was articulated in a set of written submissions filed on 3 July 2023 and expanded upon at the final hearing on 22 August 2023 by counsel, Mr Aleksov, operates as follows.
First, it is said that the claim that the Tribunal articulated for its consideration in the first dot point of [32] was that the first applicant (and the second and third applicants in a derivative sense) feared harm as a close relative of members of the Pakistan Armed Forces, from the Taliban and their acts of generalised violence throughout the country.
Second, although the Tribunal had properly articulated the applicants’ claim, the manner in which it had gone on to deal with it, and in particular the manner in which it considered (or purported to consider) the DFAT Report, betrayed a misapprehension of the claim and the meaning to be attributed to the expression “generalised violence”.
The applicants acknowledged that “general” or “generalised violence” at its highest level of abstraction would not satisfy the Australian protection criteria because it did not possess the required persecutory element. However, what the applicants had articulated was a claim that existed further along the spectrum; it was a claim that the Taliban were indiscriminate in their attacks on the Armed Forces and as such, any given member of this cohort might be attacked at any time. Family members might also be vulnerable given the indiscriminate attitude of the Taliban to collateral damage. This was not a claim that operated on all citizens in Pakistan.
The applicants submitted that error in the Tribunal’s approach must be inferred from its characterisation of the DFAT Report as describing violence that was “random and perpetrated by unrelated criminal organisations” in circumstances where the DFAT Report described the violence (or “security situation”) as “complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan”. The applicants submitted that the Tribunal’s assessment of the DFAT Report could not be reconciled with this content. The DFAT report extracted by the Tribunal opened with a clear identification of persecutory elements.
Minister’s submissions
The Minister’s argument was contained in a set of written submissions filed on 4 August 2023 and expanded upon by counsel appearing for the Minister, Mr Barrington.
The Minister submitted that what the Tribunal considered between [34]-[49] of the Reasons was an ordinary generalised violence claim; i.e. that the applicants might be caught up in the generalised, sporadic violence occurring in Pakistan.
The Minister acknowledged that in the chapeau to [32], the Tribunal apparently connected all of the applicants’ claims to fear harm with “the essential and significant reason of the principal applicant being a close relative of members of the Pakistan Armed Forces by agents of the Taliban in Pakistan”. However, the Minister invited the Court to find that this statement involved a typographical error; the reference would make the second dot point “wholly otiose” as had the Tribunal truly understood the “generalised violence” claim as directed at “indiscriminate attacks on the armed forces”, the second dot point was unnecessary.
The Minister submitted that once it was accepted that the claim considered by the Tribunal was one of generalised violence (without qualification), no error was manifest in the Tribunal’s rejection of the claim at [45] as lacking the “requisite systematic quality that gives rise to protection obligations under the Convention”. This was described as involving an orthodox approach. Furthermore, there was no error manifest in the Tribunal’s evaluation of the DFAT Report because the DFAT Report, by referring to the complexity and volatility of the security situation, was simply setting out contextual information about the various causal factors for violence in Pakistan. According to the Minister, the DFAT Report did not suggest that the generalised violence had characteristics that identified the first applicant as a target or that it was non-random in its application. The characterisation of the material recorded by the Tribunal at [45] of the Reasons was said to be open to it.
The Minister submitted that even if the applicants were correct in their construction of the Tribunal’s reasons this did not lead to a conclusion that the Tribunal failed to consider the DFAT Report. This was because the Tribunal had expressly extracted the relevant portions of the DFAT Report and then summarised what emerged from that information. It could not, in these circumstances, be doubted that the Tribunal had “read, identified, understood and evaluated” the DFAT Report (referring to Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at [24]). The Minister also noted (again by reference to Plaintiff M1/2021 at [26]) that the High Court has cautioned against resort to phrases like “proper, genuine and realistic consideration”, language invoked in the applicants’ ground of review.
CONSIDERATION
How did the applicants articulate their “generalised violence” claim?
Although the applicants’ ground of review is framed in terms of a failure on the part of the Tribunal to give proper consideration to the DFAT Report, resolution of the ground necessitates an inquiry into how the applicants’ “generalised violence” claim was identified in the material that was before the Tribunal.
The applicants submitted that the evolution of the claim could be traced through written submissions to the Tribunal dated 11 January 2017 (CB 267-274), 1 February 2017 (CB 286-290), 28 February 2017 (CB 292) and 22 August 2018 (CB 401-416). However, it was this last submission that the applicants placed particular significance upon as identifying the “generalised violence claim”, especially what was recorded at CB 402-403.
The Minister also referred to the written submission dated 22 August 2018 but contended for a different construction of what emerged from that document.
Insofar as it bears upon the question, the 22 August 2018 submission, which was prepared for the purpose of “addressing the [Tribunal] member’s concerns” following the hearing, records as follows:
Subjective fear
At the hearing you made it clear that you have concerns about [the first applicant’s] subjective fear and when precisely he started to have a genuine fear of persecution.
We submit that [the first applicant] began to have genuine fear of persecution (in the sense of being personally threatened) upon his trip to Pakistan in 2013. On his earlier trips to Pakistan in 2011 and 2012, [the first applicant] had a growing fear due to the general security situation in Pakistan deteriorating, however he did not fear being personally attacked or targeted. [The first applicant] has informed us that during his previous trips his parents became more protective and did not allow him to walk outside alone. On the trip in 2012 he said that he hardly left the house because his parents were so concerned about it being dangerous. [The first applicant] spoke about this in the hearings with you as well.
We argue that this goes towards explaining [the first applicant’s] responses, which you described as vague and to an extent unsatisfactory. At the March 1 hearing [the first applicant] first said that he started to fear persecution from the Taliban in 2011, but then said that he really feared harm from them in 2013. You characterised this as vague and inconsistent, however we submit that he responded this way due to a lack of understanding of the legal definition of ‘well-founded fear of persecution’ and because the reality of when he started to fear harm is nuanced. He became somewhat fearful during his first two return trips to Pakistan in 2011 and 2012, largely because of the way his parents behaved and what they told him about the general security situation. He felt that it was much more dangerous than when he used to live there a few years prior. The general insecurity and violence was due to attacks by Sunni militant groups such as the Taliban and clashes between them and the Pakistani military, and it is in this sense that [the first applicant] started to fear ‘persecution’ from the Taliban in 2011.
[The first applicant] began to fear being personally targeted after he was attacked on the way to the airport on 1 May 2013. He spoke about this incident in detail with you in the 1 March hearing and we note that he has always been consistent about it. This explains why [the first applicant] returned to Pakistan in 2011 and 2012, and why [the second applicant] did not flee in October 2012 as soon as she received her Australian visa. When you put this issue to [the first applicant] at the beginning of the 27 July hearing (regarding when he started to fear persecution from the Taliban), the first applicant responded:
‘Obviously I feared from the threats I received. Initially in 2013 when the attack happened, that was the time when things had changed and I realised everything was not the same as it was’
You questioned why he relied on the conduct leading up to that, however we are not entirely sure what conduct you are referring to. [The first applicant] has never claimed that the threat letters address to his brother arrived before this 1 May 2013 attack. They came after the attack. If you referring to the fact that [the first applicant’s] brother has been serving in the Pakistan army since 2001 and that his father was in the air force from the 1970s through to the 1900s, we acknowledge that these preconditions for [the first applicant’s] fear existed well before he sought protection in Australia. However, we argue that to be shot at while with your brother is entirely different to having a vague idea that one might be in danger due to your family’s involvement with the military. Being told by your parents that you are in danger and need to be careful is also vastly different to a personal experience of being attacked and threatened.
At the 27 July hearing you presented the following dichotomy to [the first applicant]: either he had a pre-existing fear and still went back to Pakistan, then the attack happened, or he didn’t have a fear until the attack happened. We submit that for people who have grown up in volatile security situations like [the first applicant], there is no clear dichotomy between fearing persecution (as per the legal definition in the Refugee Convention and Australia’s Migration Act) and not. [The first applicant] responded in the interview, ‘I had pre-existing fear, I had fears all the time’. He grew up with a low-level fear of generalised violence, which grew over the years as the security situation in his home town deteriorated. We submit that [the first applicant] did not understand the legal definition of ‘well-founded fear of persecution’ well enough to answer your questions about this clearly. He was not seeking to be obstructionist or difficult. We urge you not to make adverse inferences about [the first applicant’s] credibility due to his responses to these questions.
We have confirmed with [the first applicant] that he first started to fear persecution from the Taliban, in the sense of being personally targeted, after the 1 May 2013 attack. Before this he had a lower-level fear of being killed or injured due to generalised violence. This lower-level fear as not enough to prevent him from returning to Pakistan to see his family and get married. Nor was this lower-level fear enough to cause [the second applicant] to flee as soon as she was granted an Australian visa. We remind you of the enormity of the decision to flee one’s country and start an entirely new life.
The applicants submitted that the parts of the submission identified in bold constituted a claim to apprehend general violence that moved from a high level of abstraction (the first highlighted passage) to a more particularised complaint that introduced the connection between the generalised violence and the first applicant’s relationship to a brother who is (and was) a Pakistan army officer (the second highlighted passage).
The Minister, on the other hand, submitted that the passages reproduced above instead communicated that the first applicant began to have a subjective fear in terms of being personally threatened after his trip to Pakistan in 2013. During the earlier trips in 2011 and 2012, the first applicant had a growing fear due to the deteriorating security situation, however this was dissociated from any of his personal attributes. In other words, he identified a generalised violence claim in the orthodox sense.
The Minister submitted that the significance of these dates had been picked up by the Tribunal in its Reasons at the first dot point to [32] and again at [34] where the Tribunal referred to generalised acts of violence occurring over the years prior to 2012.
Principles – obligation to consider claims
The relevant existing case law on the topic of the duty to consider claims and issues arising from material before it as that law applies to the Tribunal under Pt 5 or Pt 7 of the Act was helpfully summarised by a Full Court (Collier, McKerracher and Banks-Smith JJ) in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]. The Full Court observed that (emphasis in original):
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42].
•The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
…
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a)such a finding is not to be made lightly (NABE at [68]);
(b) the fact that such a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 while the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from the materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
What “generalised violence” claim was the Tribunal obliged to consider?
The material identified by the applicants as exposing the “generalised violence” claim commenced with a written submission prepared by the applicants’ solicitor and registered migration agent on 11 January 2017. The submission identified the first applicant’s claim as “based on having a profile of adverse interest to the TTP [Tehreek-e-Taliban Pakistan] and other militia groups because he is a family member of two prominent military officers, one retired (his father) and one still serving as a Major (his brother and recipient of the threat letter”. The submission noted that it was “incumbent on the decision maker to make a finding as to the credibility of [the first applicant’s] claim that his brother received a threat letter from the TTP as this informs the real chance of serious harm to [the first applicant] from the TTP, as a family member of his brother…”. (CB 269).
The submission also referred to and provided extracts from country information concerning the TTP and noted that the information “supports the [first applicant’s] claim that the TTP target persons in the military, such as [the first applicant’s] father and brother” (CB 271).
Having reviewed the 11 January 2017 submission it its entirety I am unable to discern any claim expressly made or arising from the material that concerned itself with the prospect of the first applicant (or his family) being caught up in “generalised violence”. The claim articulated and arising from the country information contained in the submission was concerned with harm that was targeted specifically at the first applicant by reason of his family relationships.
The next submission identified by the applicants was dated 1 February 2017 and also prepared by the applicants’ solicitor and registered migration agent. It was conceptually similar to the earlier submission and like its predecessor identified a claim that involved the first applicant being targeted by virtue of his familial relationships and as exemplified by the submission that “there is a real chance of the Taliban seeking out [the first applicant] and his family to carry out a revenge attack for the work [the first applicant’s] brother has carried out as a member of the military against the Taliban” (CB 287).
The brief submission sent to the Tribunal on 28 February 2017 did not, in my opinion, add to or alter the character of the submissions and claims already before the Tribunal which, as I have indicated, emphasised harm that was personally, rather than symbolically, targeted in nature.
It was only in the final written submission (reproduced at [35] above) that a new dimension to the claims was introduced. However, I am not persuaded that it was to the effect now identified by the applicants. Instead, reading the 22 August 2018 submission as a whole and in context and in deference to the authors who, as lawyers and migration agents can be taken to have approached the exercise of identifying claims and argument with some precision, I consider that the claim that was squarely before the Tribunal was a claim of generalised violence that reflected the security conditions in Pakistan as they pertained in 2011 and 2012 when the first applicant returned to Pakistan. Although in the first passage emphasised by the applicants there is reference to apprehended danger being responsive to the first applicant’s family’s involvement with the military, in its clearest manifestation, the claim (if it can be called that; on one view it was simply a response to the Tribunal’s concerns about the first applicant’s travel to Pakistan in 2011 and 2012) was repetitively identified as involving a “low-level fear of generalised violence, which grew over the years as the security situation in [the first applicant’s] home town deteriorated”.
The claim now identified by the applicants involves a degree of nuance and subtlety that is absent in the comprehensive submission provided to the Tribunal, contrary to the express language reproduced at [45] above, and which invites the Court to undertake an “independent analytical exercise for the discovery of potential claims which might be made, but which have not been” which is antithetical to the practical and common sense approach to everyday decision-making referred to in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15].
CONCLUSION
Read fairly and as a whole, I consider that the Tribunal properly understood the claim that was before it and described it accurately at the first dot point to [32]. I do not consider that the language adopted by the Tribunal in the chapeau to this paragraph materially alters this conclusion. It is clear that the claims about which the Tribunal was concerned were those identified in the stand-alone dot points. If there was a looseness in the manner in which these claims were seemingly tied together by the chapeau it did not infect the analysis that followed.
When the claim is understood as one involving an assessment of the risk to the applicants of harm occasioned by general (or generalised) violence, the evaluation of the DFAT Report takes on a more benign complexion.
It was open to the Tribunal to find that the violence described in the DFAT Report construed as a whole and reflecting the cognisable concept of “general violence” was not systematic on the basis that it did not seem to follow a definite plan or method (in other words, it was “random”),[1] including because it was carried out by a range of actors, across a variety of locations and motivated by a range of considerations. This is a different finding as to whether the violence identified in the DFAT Report was also capable of involving “discriminatory conduct”, which more naturally directs attention to the motivation of the perpetrator and the matters identified in the first passage of the DFAT Report.
[1] Online Macquarie Dictionary 2023
Orders
As I have found that the Tribunal did not err in the manner alleged by the applicants it must follow that the application filed on 17 July 2019 and amended on 3 July 2023 be dismissed. The applicants must also pay the Minister’s costs in a fixed amount.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 25 October 2023
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