DUE16 v Minister for Immigration
[2019] FCCA 1499
•12 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUE16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1499 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – refusal of Protection (Class XA) visa – citizen of Pakistan – alleged fear of harm from Pakistani Taliban – whether Tribunal decision unreasonable and illogical – whether finding made without evidence – whether error in finding concerning relocation – whether misconstruction or misapplication of real chance test – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7, ss.36, 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 |
| Applicant: | DUE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 610 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 17 April 2018 |
| Date of Last Submission: | 17 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 12 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Raftos |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Ms SJ Oliver |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 610 of 2016
| DUE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 14 November 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 305-326.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Pakistan, arrived in Australia on 3 March 2013 on a Student (Class TU) (Subclass 572) visa (“Student Visa”) valid until 27 August 2014: CB 16;
b)on 23 October 2013 the applicant applied for a Protection Visa on the following grounds:
i)fear of harm at the hands of the Pakistani Taliban on account of his imputed political opinion and social group: CB 29;
ii)
in 2008, near to his house, the Taliban were training children, he and his father objected to children being trained in guns and violence so one day they went to where the children were training to see what was going on and signalled to “them” to leave the area and go away, when a Taliban holding an
AK-47 saw them he came closer looking at the applicant and his father across the river, so his father called out and told him to leave the area because it was distressing people but the man fired towards the father and the father and the applicant then ran back to the house: CB 30;
iii)after the above incident the Taliban told the Taliban in the surrounding areas that the applicant’s family was opposed to them, and one night after they had fled to the applicant’s uncle’s house the Taliban came to their house, burned it down completely destroying it, so that the members of the applicant’s family who remain in the area continue to live with his uncle as they cannot rebuild the house: CB 30;
iv)in 2009 the applicant reported some Taliban men to his cousin who reported them to the Inter-Service Intelligence Agency and those men were arrested: CB 31;
v)in 2010 the applicant joined the Village Defence Committee (“VDC”) and the army would bring information to the applicant it had received and asked him to determine, if in his view, the person was supportive of the Taliban or the Army by assessing the behaviour and attitudes of people who were suspected, and the information he provided led to people being arrested: CB 31;
vi)the applicant’s cousin told him the applicant’s home area had become very dangerous for the applicant, and in September 2013 the applicant’s cousin was returning home from a mosque, but before he got home he was shot from behind and killed, and the applicant strongly believes that the person who shot him was Taliban because he had been receiving threats from the Taliban and he had been engaging in activities that put him at risk of being targeted by the Taliban so there was no other reason that the applicant’s cousin would be shot (the applicant was told about his cousin’s death from a friend): CB 32;
vii)the applicant is unable to rely on the Pakistani Government for protection because they are not able to protect themselves, let alone civilians who engage in activities such as supporting the Army, further the Pakistani Government is not strong enough in relation to the Taliban to protect the population: CB 32;
viii)the applicant is unable to relocate to another area of Pakistan because his risk of harm extends throughout the country as the Taliban has an extensive and sophisticated network throughout the country, including in cities such as Karachi, Lahore or Islamabad, while the dialect of Urdu that the applicant speaks makes him recognisable as a person from the North West of Pakistan: CB 32; and
ix)in summary, the applicant fears harm including physical assault and murder at the hands of the Pakistani Taliban and its agents, by virtue of his support of the Army, his involvement in the VDC and his occupation as a nurse: CB 33;
c)on 11 March 2015 the Delegate’s Decision was to refuse to grant the Protection Visa: CB 105-128, and on 18 March 2015, the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 129-130;
d)the Tribunal invited the applicant to a hearing to give evidence and present arguments scheduled for 30 March 2016 (“Tribunal Hearing”), and on 23 and 30 March 2016 the applicant’s representative, provided written submissions and news articles to the Tribunal: CB 160-174 and 179-188;
e)on 30 March 2016 the applicant appeared at the Tribunal Hearing to give evidence and present arguments, and on 7 April and 8 July 2016 the applicant’s representative provided post-hearing submissions to the Tribunal for consideration: CB 194-197 and 252-298; and
f)on 14 November 2016 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 305-326.
The Court notes that the VDC is also known by other names including the “Peace Committee”: CB 307 at [16], and Aman (“peace”) committees, village lashkars (“army”), local tribal militias, and anti-Taliban militias: CB 311 at [47].
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)provided an accurate background to the applicant’s claims largely reflecting what was said in the Statutory Declaration provided by the applicant in support of his Protection Visa application: CB 306-307 at [6]-[15];
b)noted the content of the submissions dated 23 and 30 March 2016 provided by the applicant’s representative, and summarised those stating that the applicant alleges he faces a real chance of persecution throughout Pakistan, and noting a new claim that the applicant fears discrimination as a Pashtun in host communities, including in respect of renting property, accessing healthcare, or a place for children in school, so that in the circumstances it would not be reasonable for the applicant to relocate: CB 307 at [19];
c)referred to the submission received on 7 April 2016 as stating the country information relied on by the Delegate was outdated, and that other information presented a different situation, and which raises a further claim that the applicant is an established political identity as he comes from a family who are known to be opposed to the Taliban, that his membership of the VDC “was an explicitly political and public role of opposing the PKK (sic)”. The Tribunal inferred from those submissions the reference to PKK was actually a reference to the Taliban, and if the authorities or community organizations seek support of members of the public then it must be assumed that he would give effect to his established political opinion and inclinations and participate: CB 307-308 at [20];
d)set out the detail of what happened at the Tribunal Hearing, including the applicant’s responses to requests for further information from the Tribunal, and the applicant’s representative’s comments at the end of the Tribunal Hearing: CB 308-310 at [21]-[38];
e)noted further submissions received on 29 June and 8 July 2016, noting it had read the report provided and in particular its thesis, recommendations and advice on countering jihadist threats, including its discussion on protecting and engaging citizens, and that it had considered the “SATP Chronology” which had been provided by the applicant's agent, and then summarised the content of the further submissions in some detail: CB 310-311 at [39]-[46];
f)set out the sources and content of particular pieces of country information it found relevant to the applicant’s claims: CB 311-314 at [47]-[54];
g)correctly identified the applicable provisions of the Migration Act, and the Ministerial Direction No.56 it was required to take into account to the extent relevant, and the legal principles relevant to assessing the applicant’s credibility: CB 314-317 at [55]-[73];
h)found the applicant's evidence in respect of his claimed activities in Pakistan, including his activities working as a nurse and his participation in the VDC to be plausible and credible and was satisfied, having regard to all the evidence that the applicant held a subjective fear of harm: CB 318 at [78] and [80];
i)having regard to all of the applicant's claims, and to the relevant country information, the Tribunal found that the applicant did face a risk of serious harm due to his activities as a nurse and in the VDC, should he be returned to his home area, and to the Swat Area, and Khyber Pakhtunkhwa (“KPK”) area more generally: CB 318 at [79];
j)found the applicant did face a real chance of serious harm in the form of physical assault or murder by elements of the Taliban, now or in the reasonably foreseeable future, if he were to return to his home area, and to the Swat or KPK areas: CB 318 at [82];
k)was not satisfied that the applicant would be able to avail himself of police protection at the level that would be expected in accordance with international standards in the KPK and therefore was required to consider whether it was reasonable and effective for the applicant to relocate to some other place in Pakistan: CB 319 at [83];
l)accepted that country information indicated that the security situation varied greatly within different parts of Pakistan and that there were a number of areas within the country that remained relatively free from the threat of militant, sectarian and politically motivated violence, furthermore, the Taliban’s focus was against security forces and institutions, political rivals, civilian infrastructure and non-Sunni minorities, but the Taliban did not have the level of cohesion and integration to target locally known activists outside of their home regions: CB 320 at [89]-[90];
m)found that when the Taliban were active in other parts of Pakistan, there were relatively few attacks and when they did occur they were against military or other authorities or minorities and the applicant or his family did not fit within those categories as they had no distinction in the VDC such that the Taliban would seek to harm the applicant by pursuing him in other locations within Pakistan because of his occupation or involvement with the VDC: CB 320 at [91]-[92];
n)referred to a lack of information about the VDC members being targeted outside the location of the operation of the VDC, more generally while also finding that the applicant’s actual or imputed political opinion was the dominant opinion in the broader population in Pakistan: CB 321 at [93]-[94];
o)found that the reported violence that affects Pashtuns appeared to be rare in light of the size of the population, and that discriminatory attitudes towards Pashtuns in places such as Lahore were not so widespread, and while as a new arrival the applicant may face some short-lived suspicion were he to relocate, his past activities would demonstrate that his opinions are against the Taliban, therefore it did not accept that the applicant faced a real chance of serious harm or a real risk of significant harm because of his ethnicity: CB 321 at [96];
p)was satisfied that the applicant would be able to participate in anti-Taliban political activities if he relocated to a larger urban area and that he did not face a real chance of serious harm or a real risk of significant harm for reasons of holding an anti-Taliban opinion or expressing that opinion in one of the nominated areas: CB 322 at [99];
q)accepted that the country information supported the claim of sporadic generalised violence in Lahore, however that such harm was faced by the population generally and accordingly, the applicant did not face a real chance or real risk of harm for reasons personal to him: CB 323 at [104], and considered the various factors including education, employment, accommodation and financial constrains in assessing if the applicant could relocate to one of the major cities in Pakistan: CB 324 at [112]-[120], and found that it was reasonable for the applicant to relocate within Pakistan: CB 325 at [120];
r)considered whether the applicant met the complementary protection criterion under s.36(2)(aa) of the Migration Act, and relying upon the factual findings previously made, found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there would be a real risk of him suffering significant harm if he were to relocate to another part of Pakistan other than his home area: CB 326 at [123]-[125];
s)found that it was not satisfied that the applicant was a person to whom Australia had refugee protection obligations under s.36(2)(a) of the Migration Act or complementary protection obligations under s.36(2)(aa) of the Migration Act: CB 326 at [126]-[127]; and
t)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 326 at [129].
Judicial Review Application
Pursuant to an order made by the Court on 11 April 2018 the applicant filed a Further Amended Judicial Review Application on 12 April 2018 setting out the following grounds:
1. The AAT unreasonably and illogically concluded that attacks by the Taliban were not against political opponents or quasi military organisations.
PARTICULARS
See paragraph [91] of decision.
2. The AAT concluded that there was no Taliban ‘hit list’ without evidence to come to such a finding.
PARTICULARS
See paragraph [90] of decision.
3. The AAT incorrectly held that the applicant would be able to access a social network for support in the event of his relocation within Pakistan.
4. Misconstrued or misapplied the real chance test.
PARTICULARS
The Tribunal misconstrued or misapplied the real chance test by failing to make a finding as to how persons similar to the Applicant have been or are being treated in Pakistan. That is failing to compare to the Applicant with persons having the same or similar education, qualifications and skills set.
5. Failed to consider a claim or an integer of claim namely:
a) The risk of local Taliban relocating
b) The Applicant’s professional activities
At hearing, Counsel for the applicant withdrew reliance on the last sentence of the particulars to ground 4: Transcript, page 2.
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1, in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Grounds 1-3
Grounds 1-3 of the Further Amended Judicial Review Application concern findings made by the Tribunal that the applicant contends were unreasonable, illogical or were unsupported by the evidence, and the Court will address those claims together. Grounds 4 and 5 will be addressed individually.
Applicant’s submissions
The applicant submitted:
a)in support of ground 1 that:
i)the Tribunal unreasonably and illogically concluded that attacks by the Taliban were not against political opponents or quasi-military organisations, and stated “… that the attacks that did occur were targeted against military or other authorities or minorities”: CB 320 at [91], which the applicant was not one of;
ii)this conclusion was not restricted or qualified, for example, to “targeted attacks” only; and
iii)the Tribunal came to the finding notwithstanding significant and reliable evidence before the Tribunal indicating Taliban attacks were not so confined;
b)in support of ground 2 that the Tribunal concluded there was no Taliban “hit list”: CB 320 at [90], but no evidence was referred to by the Tribunal in support of this finding or to justify it, notwithstanding that, in the context of the applicant’s claims, such a finding was critical; and
c)in support of ground 3 the Tribunal made another critical finding that the applicant would be able to access a social network for support in the event of his relocation within Pakistan: CB 324 at [113], with no reference to any evidence in support of this conclusion.
Minister’s submissions
The Minister’s written submissions were filed prior to the applicant filing the Further Amended Judicial Review Application on 12 April 2018. Nevertheless, in respect of grounds 1-3 of the Further Amended Judicial Review Application the Minister submitted that:
a)the Tribunal clearly considered the applicant’s claim that he would not be safe from the Taliban anywhere in Pakistan as the Taliban have a network throughout the country, would seek to harm him and would search for him: at CB 320 at [89]-[93], where the Tribunal discussed at length the country information, and went on to make a finding that the risk of being harmed in sporadic generalised violence in Lahore was one faced by the population generally, and not one faced by the applicant personally: CB 323 at [104];
b)insofar as the applicant claims the Tribunal’s findings were unreasonable, the Tribunal’s Decision was not so unreasonable that no reasonable person could have come to it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR (Eng) 635; (1947) 63 TLR 623; (1947) 112 JP 55; [1948] LJR 190;
c)insofar as the applicant claims that the Tribunal’s findings were illogical, although reasonable minds might differ in relation to the conclusions reached, the findings were not ones which could be said to lack a logical connection between the evidence and reasons of the Tribunal, nor are they ones to which no reasonable decision maker could have come: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”);
d)the finding of the Tribunal the subject of ground 3 is a finding that was open to the Tribunal, having regard to the other findings that it had made, including findings of fact that the applicant’s actual or imputed political opinion was the dominant opinion of the broader population in Pakistan and that there is a large Pashtun population residing in Lahore who were able to survive because there was employment and accommodation for them in that city; and
e)the applicant’s description of the Tribunal’s reasoning as being ‘unreasonable,’ ‘illogical’ or ‘incorrect’ should be viewed as merely an emphatic way of expressing disagreement with that reasoning.
Consideration of grounds 1-3
Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal in Pt.7 of the Migration Act: Li at [67] per Hayne, Kiefel and Bell JJ. In Ministerfor Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [9] per Allsop CJ it was observed that:
The conclusion that a decision is legally unreasonable by reference to the outcome, whether or not there are reasons therefor, is assisted by reference to expressions taken from cases such as those mentioned in [5] above. Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power - a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual - will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
Legal unreasonableness is fact dependent, and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Stretton at [10] per Allsop CJ.
The Full Court of the Federal Court summarised the principles with respect to “unreasonableness” in Minister for Immigration & Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58]-[60] and [62]-[65] per Allsop CJ, Griffiths and Wigney JJ as follows (citations omitted):
58 First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.
59 Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
60 Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.
62 Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.
63 Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.
64 Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable.
65 Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
Whether a decision is “illogical” or “irrational” depends upon whether no reasonable or logical decision-maker could have arrived at the same finding based on the evidence before it: SZMDS at [128]-[130] per Crennan and Bell JJ.
For the Court to make a “no evidence” finding requires that there literally be no evidence to support the finding concerned, as where there is some evidence – even just a skerrick – before the Tribunal, the Court cannot make a no evidence finding: MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 at [59] per Murphy J; MZZYE v Minister for Immigration & Border Protection [2015] FCA 1378 at [54] per Murphy J; Federal Commissioner of Taxation v Pham & Ors [2013] FCA 579; (2013) 94 ATR 528; (2013) 60 AAR 264; (2013) 134 ALD 534 at [46] per Katzmann J.
It is well accepted the Tribunal may get any information it considers relevant, and that the weight it affords that material is a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, subject, however, to the Tribunal giving “proper, genuine and realistic consideration” to the claims and the evidence before it: Minister for Immigration & Citizenship v SZJSS& Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [26] and [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In relation to ground 1 the applicant says that the particulars of this ground are the Tribunal Decision at CB 320 at [91], which reads as follows:
91. The Tribunal notes that there is a significant population of Pashtuns in Lahore, that state protection is more available and Taliban or other militant Sunni activities are less prevalent in Lahore. The Tribunal notes that the country information indicates that the Taliban were most active in KPK and the FATA, that urban areas in other parts of Pakistan saw relatively few attacks, and that the attacks that did occur were targeted against military or other authorities or minorities. The Tribunal is satisfied that the applicant would not be characterised in either of these categories.
It is relevant also to note that at CB 320 at [89] the Tribunal observed as follows:
89. The applicant claims he would not be safe from the Taliban anywhere in Pakistan as the Taliban have a network throughout the country and would seek to harm him and would search for him throughout Pakistan. The Tribunal accepts that country information indicates that the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence, particularly outside of FATA, KPK and Balochistan.
It is evident that the Tribunal accepted that the security situation varied greatly within different parts of Pakistan, and also that there were parts of Pakistan which remained relatively free from the threat of militant, sectarian and politically motivated violence: CB 320 at [89]. In that regard, it is evident that the Tribunal must have had regard to the submissions from the applicant’s migration agent setting out information from the South Asia Terrorist Portal concerning terrorist incidents in Pakistan: CB 310-311 at [41] and [42], as well as through other sources: CB 313 at [53]. Thus, it cannot be said that the Tribunal did not have regard to the information which the applicant alleges renders the Tribunal Decision unreasonable and illogical in ground 1. Further, it is evident that the Tribunal characterised the applicant as having no profile outside of his home areas insofar as his anti-Taliban activities, namely his membership of the VDC and his occupational activities as a nurse, were concerned: CB 322 at [99]-[101].
The Tribunal also had regard to country information which indicated that the attacks by the Pakistani Taliban were on high profile targets involving the military, as well as political rivals, civilian infrastructure and non-Sunni minorities, as set out in the DFAT Country Information Report – Pakistan – 15 January 2016 quoted at CB 313 at [53].
The reasoning attacked by ground 1 was, therefore, in the circumstances based upon an evident and intelligible justification, and in particular DFAT country information, which the Court obviously weighed and considered together with other country information (including the South Asia Terrorist Portal referred to by the applicant in its submissions to the Tribunal) before arriving at the conclusion reached at CB 320 at [91] that the Taliban, essentially, targeted military institutional and oppositional targets, and that the applicant was not in any those categories: see also CB 320 at [90]. In those circumstances, that conclusion is not unreasonable. Nor is it illogical, in that it is not a decision which no other decision-maker might have arrived at: SZMDS at [128]-[130] per Crennan and Bell JJ. It may be that another decision-maker may have given more weight, and even predominant weight, to the information in the South Asia Terrorist Portal to reach a different conclusion, but that is not to say that the conclusion reached by the Tribunal relying on the country information that it cited relevant to the risk of attack or harm to the applicant outside of the applicant’s home areas did not provide a logical basis upon which the Tribunal Decision could rest.
In all of the above circumstances, ground 1 does not establish jurisdictional error in the Tribunal Decision.
In relation to ground 2 the particulars of that ground refer to the Tribunal Decision at CB 320 at [90] which is as follows:
90. The Tribunal notes that the DFAT report indicates that the Taliban is a loose network of Sunni militant groups, and whilst they have attacked targets throughout Pakistan, their focus is against security forces and institutions, political rivals, civilian infrastructure and non-Sunni minorities. The Tribunal accepts that the country information suggests the Taliban is a network of militant organisations which does not have the level of cohesion and integration to target locally known activists outside of their home regions, or that there was a Taliban wide 'hit list'.
The conclusion of the Tribunal that there was no Taliban wide “hit list” is one which is, according to the Tribunal, suggested by the country information, and in particular those aspects of the country information which indicate a lack of the necessary level of cohesion and integration to enable the Taliban to target locally known activists outside of their home regions. If that is what the country information suggests then that is not an unreasonable conclusion to draw by inference from the evidence, and therefore there would be evidence to support it, and the no evidence ground in ground 2 could not succeed.
The Court has read closely that part of the Tribunal Decision which is headed “Independent Country Information” at CB 311-314 at [47]-[54]. In the Tribunal Decision the closest that the country information cited gets to the conclusion reached at CB 320 at [90] is a statement in the DFAT Country Information Report – Pakistan – 15 January 2016 in relation to the Pakistani Taliban which says, at CB 313 at [53] that:
The most potent militant group in Pakistan remains the TTP – a loose network of Sunni militant groups which have splintered since the commencement of Operation Zarb – e – Azb.
In considering the applicant’s refugee protection claims at CB 317-319 at [77]-[83] the Tribunal finds that the applicant does face a risk of serious harm if he returns to his home areas: CB 318 at [79] and [82]. The Tribunal goes on to deal with relocation and sets out the relevant principles: CB 319-320 at [84]-[88]. The Tribunal then goes on to deal with the country information, noting that the Taliban is a loose network, and that they have attacked targets throughout Pakistan with a focus on security forces and institutions, political rivals, civilian infrastructure and non-Sunni minorities: CB 320 at [90]. Those conclusions are plainly based on the DFAT Country Information Report – Pakistan – 15 January 2016 cited at CB 313 at [53] (and see [17]-[20] and [23] above).
The country information cited by the Tribunal does not however deal with the level of cohesion and integration of the loose network of Taliban militant groups, or their capacity to target locally known activists outside of their home regions, and does not make any reference to there being, or not being, a Taliban hit list. Thus, there is no evidence, either in the country information or otherwise to suggest that the Taliban’s level of cohesion or integration is such that they cannot target locally known activists outside of their home regions or that there is a Taliban-wide “hit list”. There is simply no probative evidence to that effect cited by the Tribunal.
It follows that, in its terms, ground 2 is made out. That, however, does not assist the applicant in this case. That is because in its finding at CB 320 at [91] the Tribunal has found that the applicant would not otherwise be characterised as being in a category of institutions or persons liable to be targeted by the Taliban outside of his home areas, and thus the conclusion reached by the Tribunal at CB 320 at [90] with respect to there not being a Taliban wide hit list, is subsumed by a finding of greater generality: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ, and therefore the error made in respect of reference to a Taliban wide hit list at CB 320 at [90] is not an error which ultimately affects the Tribunal’s exercise of power in the sense referred to in Yusuf at [82] per McHugh, Gummow and Hayne JJ; Gill v Minister for Immigration & Border Protection & Anor [2017] FCAFC 51; (2017) 250 FCR 209; (2017) 71 AAR 525 (“Gill”) at [65] per Griffiths and Moshinsky JJ; DEL16 v Minister for Immigration & Border Protection [2017] FCA 1401; (2017) 73 AAR 258 (“DEL16”) at [56]-[57] per Derrington J. It therefore follows that ground 2 does not establish jurisdictional error in the Tribunal Decision.
In relation to ground 3, the suggestion that the Tribunal incorrectly held that the applicant would be able to access a social network for support in the event of his relocation within Pakistan is not a ground which can be made out having regard to the matters considered by the Tribunal at CB 323-324 at [106]-[113]. In particular, the Tribunal observed that:
a)in Lahore there is a significant Pashtun minority estimated to be one million people, and that the arrival of the applicant in Lahore “would not be a remarkable incident or attract attention”: CB 323 at [106];
b)Pashtuns have adjusted well and gained respectful cultural and social positions within society in Lahore, and that there is a high level of interaction between the majority ethnic Punjabis in Lahore and the minority Pashtuns, and a high level of assimilation: CB 323 at [107];
c)Pashto speakers make up a majority of the population living in a section of Lahore referred to as the Walled City: CB 323 at [107];
d)Pashtun residents of Lahore account for approximately 10% of the total population of Lahore, and a significant majority of its businesses would disappear if the Pashtuns were not present in Lahore, and that discriminatory attitudes towards Pashtuns in Lahore are not so widespread that Pashtuns are unable to reside in Lahore: CB 324 at [109]; and
e)the applicant has reasonable qualifications and work experience as a nurse, supplemented by his skills and experience in the disability sector in Australia, and that within the large Pashtun population in Lahore the applicant would be able to find employment in light of his past studies and work experience: CB 324 at [112].
In the above circumstances, ground 3 cannot be made out because there is adequate evidence from which the Tribunal could draw the conclusion that the applicant would find a social network to support him in the event of relocation.
It follows that ground 3 does not establish jurisdictional error in the Tribunal Decision.
Ground 4
Applicant’s submissions
In support of ground 4, as amended at hearing, the applicant submitted that the Tribunal misconstrued or misapplied the real chance test by failing to make a finding as to how persons similar to the applicant have been or are being treated in Karachi, Islamabad or Lahore.
Minister’s submissions
In respect of ground 4 the Minister submitted that the Tribunal did not err in its assessment in relation to the real chance of harm when looking at the applicant’s ability to relocate, because the Tribunal has looked at and compared the applicant with persons in Pakistan of the same ethnicity and similar political views, and they were the two key claims of risk of harm that remained relevant in relation to relocation to another area.
Consideration of ground 4
An applicant may face a “real chance” of significant harm even if such harm is “unlikely” to occur. In Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”), CLR at 429 per McHugh J it was stated:
The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may well have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.
What constitutes a “real chance” was also explained in Chan as:
a)a prospect even if there is less than a fifty percent chance of the persecution occurring: Chan at [12] per Mason CJ; and
b)one that is “not remote, regardless of whether it is less than or more than fifty percent”: Chan at [19] per Dawson J.
The “real chance test” was also considered in Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; [1997] 9 Leg Rep 2, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
In relation to ground 4 it is evident that the Tribunal had regard to a range of evidence in order to determine the likelihood of certain occurrences in the future, and whether or not they gave rise to a real chance of serious harm or a real risk of serious harm to the applicant by reason of his anti-Taliban political opinions. In that regard, the Tribunal:
a)found that the applicant had an actual or imputed political opinion that was the dominant political opinion in the broader population in Pakistan: CB 321 at [94];
b)considered the applicant’s Pashtun ethnicity in Pakistan, and the populations of Pashtuns in locations to which the applicant might relocate, noting that there was a population of around a million Pashtuns in Lahore alone: CB 321 at [95];
c)considered the possibility of violence in relation to Pashtun populations in major cities within Pakistan, and found that the reported level of violence was “rare in light of the size of the population”: CB 321 at [96];
d)found that the applicant would be able to participate in anti-Taliban political activities and be able to hold an anti-Taliban opinion if he chose to relocate to one of the large urban areas in Pakistan: CB 322 at [99];
e)expressly observed that it had considered all the submissions made by the applicant’s migration agent, and in particular those as to whether or not the applicant faced a real chance of serious or significant harm in major Pakistani cities: CB 322 at [101];
f)referred to the overall level of integration of Pashtuns with the majority Punjabi population of Lahore: CB 323 at [107] and [109];
g)found that there would not be an assumption in the event that the applicant relocated to Lahore that he was a Taliban supporter: CB 324 at [110]; and
h)found that the applicant would not face a real chance of serious harm or a real risk of significant harm because of his ethnicity, appearance or accent if he relocated to Lahore: CB 324 at [110].
Either express or implicit in all of the Tribunal’s findings concerning relocation was a consideration of the treatment of Pashtuns in major cities in Pakistan, and in particular Lahore. Moreover, the Tribunal referred to relevant country information in relation to the treatment of Pashtuns in those major cities when making the above findings: see CB 321 at [94] and [96], 222 at [99] and [102], 323 at [106]-[107] and 324 at [109].
It is plain that the Tribunal understood the test as to what constituted a “real chance” which it summarised at CB 315 at [63] in terms similar to that set out at [34]-[36] above, and applied that test in relation to the facts as the Tribunal found them.
In all of the above circumstances, ground 4 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 5
Applicant’s submissions
In support of ground 5 the applicant submitted:
a)the applicant gave evidence of the threat he faced from the Taliban in his home area, and in the Swat and KPK, and the Tribunal found the applicant was at a real risk of harm in these areas and that his evidence was “plausible and credible” in respect of his activities in Pakistan;
b)the applicant gave evidence in the Tribunal Hearing, and the Tribunal did not expressly reject his evidence that he had identified Taliban personnel while in Karachi in 2008 and that there are people who have relocated to Karachi from the Swat who might report him to the Taliban;
c)it is logical to conclude from this evidence that the applicant also claimed a risk of harm from the presence or future presence of the Taliban and or their supporters who have relocated from his home village or the regions of Swat and KPK to Karachi, Islamabad or Lahore, however, no reference to this claim is made in the Tribunal Decision, and accordingly it may be inferred that a failure to consider this claim by the Tribunal has occurred;
d)the applicant also claimed a fear of harm from the Taliban arising from his professional activities as a nurse, however, no reference to this claim is made in the Tribunal Decision, and accordingly it may be inferred that there was a failure to consider that claim by the Tribunal; and
e)paragraph 2 of the Applicant’s statutory declaration states “My main reason for seeking protection”, and that puts the Tribunal on notice that there are other reasons for seeking protection, perhaps not as strong, but certainly other reasons, thus on a reasonable reading there are other reasons for seeking protection, and the Tribunal should have been alert to them.
Minister’s submissions
In respect of ground 5 the Minister submitted:
a)the claims of risk of harm being linked to the applicant’s occupation appear to relate to the work that the applicant did in a particular area as a nurse, and there was not a claim more broadly of risk of harm as a result of his occupation as a nurse, so whilst there is a risk to polio workers that is evident on the country information, it certainly was not part of the claims made by the applicant that that is work that the applicant intended to engage in;
b)there was not a claim put generally on the basis that being a nurse presented a risk to the applicant. It was only the duties he performed as a nurse in particular regions that the Tribunal found gave rise to a risk of serious harm, but it also found that relocating to another area of Pakistan would alleviate that risk of harm;
c)the Tribunal did consider the risk of local Taliban relocating, and it can be inferred from the Tribunal’s findings that:
i)the Taliban did not have the level of cohesion and integration to target locally-known activists outside their home regions;
ii)neither the applicant nor his family had such distinction in the VDC that the Taliban would seek to harm him or pursue him in other locations within Pakistan; and
iii)the Tribunal did not identify information about VDC members being targeted outside the location of the operation of the VDC, or the KPK more generally, and, therefore, it is clear that the Tribunal did consider the risk of someone from the Taliban appearing in the same area that the applicant was in, but did not consider that that would present a risk of harm in light of the country information about the lack of cohesion and integration, and a lack of the Taliban’s ability to target people outside of the home region; and
d)the findings of the Tribunal were open to it on the evidence, and insofar as the claim is made that any findings are unreasonable, they are not so unreasonable that a person could not have come to the same decision, and the Tribunal’s findings were not illogical, and the applicant is seeking to dispute the findings in the Tribunal Decision, and to thereby have this Court undertake impermissible merits review of the Tribunal Decision.
Consideration of ground 5
It is well established that a failure to consider an integer of the applicant’s claim will amount to jurisdictional error where that claim is a mandatorily relevant criterion under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J. The Tribunal is also required to engage in an “active and intellectual process directed at that claim or criteria”: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [45]-[46] per Lindgren, Rares and Foster JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole: WAEE at [47] per French, Sackville and Hely JJ.
With respect to the first claim that the Tribunal is said to have failed to consider, the Tribunal stated at CB 306 at [9] that “[i]n 2009, while the applicant was in Karachi, he saw some people from [… his home area] and recognised them as Taliban supporters”. During the Tribunal Hearing the applicant gave evidence: CB 309 at [34], that:
… in 2008, he identified some people who he knew to be Taliban while he was in Karachi. He said that the authorities then arrested these people. He said that in places like Islamabad or Lahore, there are many people who have relocated there from Swat and they might report him to the Taliban.
The Tribunal made relevant findings and observations at CB 320 at [89]-[90], which are summarised at [4(l)] and set out at [18] and [23] above, and at CB 321 at [94] as follows:
94…The applicant has claimed that he would be targeted across Pakistan because of his actual and imputed political opinion against the Taliban. The Tribunal considers that the majority of Pakistan's population would not support the Taliban or their beliefs or activities…The Tribunal therefore considers that the actual and imputed political opinion is the dominant opinion in the broader population in Pakistan.
It may be unnecessary for the Tribunal to make a finding on a particular matter where the factual premise of the matter is subsumed into another matter, or impliedly addressed and rejected: WAEE at [47] per French, Sackville and Hely JJ. The Court should not engage in over-zealous examination of the Tribunal Decision to discern whether any inadequacy may be gleaned from a failure to mention a particular matter: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In the Court’s view the applicant referred to his identifying Taliban supporters in Karachi as evidence in support of his claim that he could not relocate, and further that he had recognised those individuals as a result of his membership of the VDC. The applicant did not claim he had been recognised, only that he had recognised Taliban supporters in Karachi. While the Tribunal did not expressly accept or reject the occurrence of this event, it need not do so unless the failure to consider this integer of evidence would have affected, or may have affected the Tribunal Decision and outcome: Yusuf at [82] per McHugh, Gummow and Hayne JJ; Gill at [65] per Griffiths and Moshinsky JJ; DEL16 at [56]-[57] per Derrington J.
The Court notes that the Tribunal specifically identified Karachi as a location where the applicant could, on the basis of country information, be subjected to harm: CB 321 at [96]:
96. ...There is information that the authorities have harassed some Pashtuns in locations outside KPK and FATA. The city of Karachi is also identified as a location where there is violence against Pashtuns, though this often also relates to political conflicts of popular Pashtun parties such as the PPP and ANP, opposed by the MQM. In other locations in Pakistan, reports of violence against Pashtuns are limited and isolated, and do not demonstrate that Pashtuns are being harmed as suggested by the applicant's claims.
The Tribunal rejected the applicant’s claim that he could not relocate within Pakistan and that the chance of his being harmed extended to the entire country for the reasons it gave at CB 320-321 at [89]-[96], and found that the applicant could relocate to Lahore, Islamabad or Rawalpindi. It was unnecessary for the Tribunal to expressly refer to what happened in Karachi in 2008 where the Tribunal had found the country information supported a finding the applicant could relocate safely and his anti-Taliban view was the dominant view of the Pakistani population. These findings necessarily subsumed the very claim the applicant contends the Tribunal failed to consider: WAEE at [47] per French, Sackville and Hely JJ.
As to the second claim, regarding the applicant’s profession as a nurse, at the Tribunal Hearing there was some emphasis placed upon this issue. In the applicant’s statutory declaration he said:
13. I worked as a nurse for the Habib Medical Centre, which was owned by my cousin. The two of us were very close because we worked together at the Medical Centre. We also shared political and social views. The hospital used to have 3 doctors in 2007 but because of insecurity and the displacement of much of the population, it closed for about 14 or 15 months. When it reopened, the hospital was much smaller. When I worked there, the staff included my cousin who was a doctor, his brother who was a dentist, one part-time female doctor.
The Tribunal invited the applicant to provide more information regarding his occupation and at CB 309 at [30] and 310 at [36] said:
30. The Tribunal asked the applicant to provide more information on his claim that he was assisting the army and NGOs. He said that if someone from the army came into the hospital with a fever or some other medical condition, he would be able to prescribe basic medication. He said that if someone from the army came in with an injury or a wound, he could change or dress the wounds, and he could also stitch their wounds if necessary. He said that in respect of NGOs, when there were floods in the area, there was an outbreak of cholera, and he would do intravenous lines and give injections. He said the Taliban know about this and know that he has treated army and NGO members and that he would therefore be targeted for harm.
36… The applicant told the Tribunal that if he was forced to return to Pakistan, he would have to apply for a nursing job, but there is great competition for such jobs and he does not have references and feels he would not be able to get a job in his field.
The Tribunal accepted at CB 318 at [79] that due to his activities as a nurse and with the VDC the applicant faces a risk of serious harm if he returns to his home area, and indeed to the Swat or KPK area more generally. The Tribunal did not, however, accept that that a real chance or real risk of serious harm existed across Pakistan generally in relation to the applicant, observing at CB 321 at [92] that:
Based on the evidence before it, the Tribunal does not accept that the applicant or his family have such distinction in the local Peace Committees that the Taliban would seek to harm him by pursing him in other locations within Pakistan because of his activities in his occupation of with the Peace Committees in the Swat region or KPK more generally.
Plainly the use of the word “of” following “occupation” in the above quote is a typographical error, and should be read as “or”: CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [29] per Marshall J; SZLPH v Minister for Immigration & Citizenship [2008] FCA 744 at [26]-[32] per Weinberg J.
The Tribunal addressed the applicant’s concerns of being unable to find employment as a nurse if he returned to Pakistan, as follows at CB 324 at [112]:
The Tribunal finds the applicant has reasonable qualifications and work experience as a nurse and that he has gained further skills and experience in the disability sector while in Australia. The Tribunal notes that there is a large Pashtun population residing in Lahore who are able to survive because they are in employment and accommodation in that city. The Tribunal does not accept that the applicant would be unable to find employment in such an environment in light of his past studies and his work experience.
It is not for this Court to question a finding of fact made by the Tribunal, and noting the country information referred to at CB 313-314 at [54] of the Tribunal Decision where specific reference is made to the increased employment opportunities in urban areas as opposed to rural areas, the finding was one reasonably open to the Tribunal: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. On the basis of the information set out above it is plain that the Tribunal considered the applicant’s claim of a fear of harm arising from his professional activities as a nurse if the applicant returns to Pakistan.
The Court has concluded that no jurisdictional error in the Tribunal Decision is established by ground 5.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error, and that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 12 June 2019
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