FEDERAL COURT OF AUSTRALIA CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 Appeal from: CSZ15 v Minister for Immigration & Anor [2017] FCCA 144 File number: VID 114 of 2017 Judge: DAVIES J Date of judgment: 23 June 2017 Catchwords: PRACTICE AND PROCEDURE – appeal from the decision of the Federal Circuit Court of Australia dismissing application for judicial review – application for leave to amend the notice of appeal to raise new grounds not before the primary judge – whether the proposed grounds lacked "clear merit" Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 Minister for Immigration v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 Date of hearing: 4 May 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Appellant: S C Churches Solicitor for the Appellant: Craig McKay Legal Counsel for the First Respondent: M Hosking Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 114 of 2017 BETWEEN: CSZ15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DAVIES J DATE OF ORDER: 23 June 2017 THE COURT ORDERS THAT: 1. Leave to amend the notice of appeal be refused. 2. The appeal be dismissed. 3. The Appellant pay the First Respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DAVIES J: BACKGROUND 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("FCC") dismissing the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection ("the Minister") not to grant the appellant a protection class (XA) visa. 2 The appellant is a citizen of Pakistan from Parachinar in the Kurram Agency of the Federally Administered Tribal Area ("FATA"). He is of the Pashtun/Bangash ethnicity and a Shia Muslim. The appellant claimed to have a well-founded fear of persecution from the Tehrik-e-Taliban Pakistan ("TTP") and/or from other extremist Sunni groups in Pakistan by reason of his religion, ethnicity, political opinion and membership of a particular social group. He also claimed that he faced a real risk of significant harm at the hands of the Taliban or other extremist groups, if he returned to Pakistan. 3 The Tribunal accepted some of the appellant's claims and rejected other of his claims which it found were not credible. One of the claims accepted by the Tribunal was that the appellant was involved in an incident in 2011 in which a vehicle in which he was travelling on the road to Parachinar was fired on. However, the Tribunal did not accept that the appellant was being targeted by the Taliban before he left Pakistan. Nor did the Tribunal accept that, if returned to Pakistan, the appellant would have a well-founded fear of persecution from the TTP and/or other Sunni extremist groups for any of the reasons he advanced. 4 The Tribunal considered that there had been a significant improvement in the security situation since 2011 when the appellant left Pakistan. The Tribunal also considered on the evidence that "this is a durable improvement". The Tribunal stated: I accept that [the appellant] has witnessed violence in the past but the definition of a refugee is a forward looking test and, as I have put to [the appellant], given the evidence about the overall security situation I do not accept that there is a real chance that he will be persecuted…because he is a Shia Bangash from the Kurram Agency or because of any political opinion which he may be perceived as holding opposed to the Taliban or other extremist Sunni groups if he returns to his home in Parachinar including while travelling on the road in and out of Parachinar. 5 The Tribunal did not accept that the appellant has a well-founded fear of persecution for a Convention reason, if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal went on to consider, and also reject, the appellant's complementary protection claim. The reasons included the Tribunal's findings with regard to the improved security situation in the Kurram Agency in general and on the Parachinar road in particular. Accordingly the Tribunal affirmed the decision of the delegate not to grant the appellant a protection class (XA) visa. The fcc decision 6 The appellant sought judicial review of the Tribunal's decision on four grounds, all of which were rejected. Three of those grounds do not need to be considered because they were abandoned in this appeal. The fourth ground was in the following terms: The Tribunal failed to consider a claim that was made, or arose on the materials, to the effect that the [appellant] was owed complementary protection obligations by reason of generalised violence. Particulars (a) The Tribunal found at Reasons [53] that some level of indiscriminate violence occurred in the Kurram Agency (generalised violence). (b) The [appellant] advanced submissions sufficient to raise a claim to fear harm from indiscriminate violence of this kind … (c) The Tribunal did not set out in its reasons how it evaluated this claim from which it is to be inferred that it did not consider the claim. 7 The FCC rejected this ground, reasoning that it was clear that the Tribunal, in considering complementary protection, relied in part on its earlier discussion of the general security situation in the Kurram Agency. The FCC stated that: The [appellant] virtually invited that approach, because the [appellant] expressed his claims in the same way. Essentially the Tribunal concluded that the general security situation was such that the [appellant] did not face a real risk of significant harm if he returned to Parachinar. the appeal 8 On appeal, the appellant argued that the FCC wrongly found no legal error on this ground. The appellant also seeks leave to raise a new ground not considered by the FCC as follows: The primary judge erred in failing to find that the Tribunal decision was affected by jurisdictional error caused by the Tribunal decision not being based in proper consideration of the evidence going to a matter fundamental to the decision on the claim for protection: the conditions that would confront the appellant if he were returned to Kurram Agency (denying the finding of the judge below "there was ample evidence for the Tribunal to draw the conclusion that the peace [in Kurram Agency] was durable"). (Particulars were provided.) 9 The proposed new ground in its current form cannot succeed because the primary judge cannot be in error for failing to find a ground of jurisdictional error that was not raised below. However, I propose to treat the proposed new ground as if it omits the words "the primary judge erred in failing to find that", and deal with the substance of the point raised by the proposed ground. 10 As the authorities show, the guiding principle is that leave to argue a new ground should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 ("VUAX v Minister for Immigration and Multicultural and Indigenous Affairs") at [46]; Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [90]. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Generally, leave should be refused in the absence of an adequate explanation for the failure to raise the proposed appeal grounds below and where the proposed new grounds are of doubtful merit. If a proposed ground has no merit there is no justification for permitting it to be raised for the first time on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs at [48]. The Minister has opposed the grant of leave to add the proposed new ground of appeal on the basis that it has no merit and an adequate explanation was not given as to why this ground was not raised below. For the reasons that follow, leave to amend the notice of appeal to raise the new ground should be refused. 11 In response to a question from the Bench, the explanation given for the proposed new ground was a change in counsel. As the cases show, that is not an adequate reason. The Court is, in effect, requested to consider for the first time an application for judicial review of the Tribunal's decision based on new grounds. This undermines the Court's role as an intermediate appellate court in migration matters. It also undermines the statutory scheme in relation to judicial review of decisions of the Tribunal under which jurisdiction to hear applications for judicial review is vested in the FCC to the exclusion of this Court: SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [31] and [38]. 12 Apart from the lack of adequate reason, the proposed new ground does not have sufficient merit to justify the grant of leave. The ground particularised three jurisdictional errors as follows: (a) the failure to refer to relevant evidence ("Proposed Ground 1.1"); (b) a failure to give proper, genuine and realistic consideration to the merits of the appellant's case ("Proposed Ground 1.2"); and (c) rejection of the utility of evidence on the basis of speculation unsupported by any logically probative evidence ("Proposed Ground 1.3"). Proposed Ground 1.1 13 In relation to Proposed Ground 1.1, it was argued that the Tribunal failed to have regard to relevant material, namely the US State Department 2013 Report on Religious Freedom published 28 July 2014 ("US State Department Report"), in finding there had been a significant improvement in the security situation in the Kurram Agency and that this was a "durable improvement" and the failure constituted jurisdictional error. The appellant referred to the proposition that jurisdictional error may include "ignoring relevant material in a way that affects the exercise of a power": Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, at 351–352 [82]–[84]; referred to in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 ("Minister for Immigration and Citizenship v SZJSS") at [27]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 ("Minister for Immigration and Border Protection v MZYTS"), at [68]. 14 It was argued that the US State Department Report was relevant material because "it provided an important point against which sectarian violence in the FATA (including Kurram Agency) might be calibrated as to increase or decrease". Specific reference was made to information in the report that on 26 July (presumably 2013) suicide bombers targeted the Shia community in Parachinar killing 62 and injuring nearly 200. This information was said to show that the events of July 2013 were a long way from improvement and this was a critical piece of evidence which the Tribunal did not take into account in dealing with the appellant's claim that it was not safe for him to return to the Kurram Agency. It was submitted that the events of July 2013 were not made irrelevant by being some two years and four months prior to the Tribunal's decision "given that those bombings occurred in the town from which the Appellant fled in 2011". 15 The fact that the Tribunal did not take that report into account in its reasoning process does not mean that there was jurisdictional error. As the Full Court explained in Minister for Immigration and Border Protection v MZYTS at [68]: In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power". In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored. The Full Court agreed with Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 ("Minister for Immigration and Citizenship v SZRKT") that the "fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error": Minister for Immigration and Citizenship v SZRKT at [111]; Minister for Immigration and Border Protection v MZYTS at [70]. 16 In determining whether the US State Department Report was critical to the Tribunal's consideration of the appellant's claim, it is necessary to bear in mind the nature of the Tribunal's task. Relevantly, that task required the Tribunal to assess the chance or risk of harm to the appellant from sectarian and generalised violence at the time he is likely to be returned to the Kurram Agency: Minister for Immigration and Border Protection v MZYTS at [35]. The Tribunal undertook that task by reviewing and basing its decision on country information in respect of the security situation in 2014 and 2015, which was more current and up to date than the US State Department Report dealing with the situation in 2013. The process of reasoning does not disclose that the Tribunal failed substantively to perform the statutory task, but rather the reasons disclose that the Tribunal evaluated the most recent material available to it to conclude that the security situation had improved since 2011, that general peace had been restored to the region since the 2013 truce and that the improvement was "durable". In these circumstances, the 2013 US report did not cogently bear upon the assessment of the appellant's claims and the failure to refer to this evidence did not amount to jurisdictional error. Proposed Ground 1.2 17 Proposed Ground 1.2 raises the contention that the Tribunal failed to give "proper, genuine and realistic" consideration to various pieces of evidence amounting to jurisdictional error: Minister for Immigration and Citizenship v SZJSS, 174 -175 at [26]. The relevant evidence was identified as: (a) the second and third quarterly reports of the FATA Research Centre for 2015; (b) the South Asian Terrorism Portal's FATA Assessment 2015; and (c) two previous decisions of the Tribunal of 2 December 2014 and 25 May 2015. 18 The second and third quarterly FATA reports are referred to in paragraphs [50] and [51] of the Tribunal's reasons. The Tribunal noted that in the second quarter of 2015 (April to June) the FATA Research Centre said that the Kurram Agency remained relatively stable and that only three security incidents had been reported. The Tribunal noted that in its quarterly report for the third quarter of 2015 (July to September), the FATA Research Centre referred to only six security incidents in the entire quarter and while this was double the level of security incidents in the previous quarter "it is still very low". It was argued that the relevance of this document was that it showed an increase in security incidents but that the Tribunal gave no, or no proper, consideration to that fact in making an assessment about the conditions in the Kurram Agency should the appellant be returned there. In oral argument, counsel for the appellant contended that the Tribunal's assessment that there was "durable" improvement in security conditions was illogical in the face of such evidence. 19 The Tribunal's consideration of those reports must be considered in context and the other country information upon which the Tribunal based its conclusion. It is clear from a consideration of the Tribunal's reasons that the Tribunal appreciated that there had been an increase in the number of attacks in the Kurram Agency in the third quarter of 2015 but, relevantly, the Tribunal took from that report that the level of the security incidents was still very low and, furthermore, considered it relevant that of the 19 more casualties than in the previous quarter, 16 of those casualties were militants killed by security forces. The Tribunal's reasons record that the appellant's representatives had submitted based upon those reports, that any improvements in the security situation were temporary but the Tribunal rejected that submission. The Tribunal considered it "clear that the current security situation in the Kurram Agency is dramatically different from that which pertained prior to [the appellant's] departure". Read in context of the preceding paragraphs, it is apparent that the Tribunal undertook an assessment of the then conditions in the Kurram Agency and in the reasonably foreseeable future, not only by reference to the two quarterly FATA reports but also other country information which the Tribunal had considered. 20 In oral argument, counsel for the appellant also contended that the evidence on which the Tribunal based its assessment concerned areas wider than just the Kurram Agency and it was a "geographic fallacy" "to assume, without there being any real evidence, that Kurram [was] somehow insulated from general trends across either Pakistan or the FATA's agency's areas generally". I do not accept that submission. It was open to the Tribunal to weigh the evidence about the generalised and sectarian violence in the FATA against other material available to it in concluding that, based on other country information, the security situation in the Kurram Agency had improved and that the improvement was durable. 21 The "South Asian Terrorism Portal's FATA Assessment 2015" ("SATP Assessment") is referred to at paragraph [52] of the reasons. The SATP Assessment set out casualty figures for 2014 and 2015 for the FATA: in 2014, 282 fatalities from terrorism attacks, including 25 civilians while in the corresponding period in 2015 there had been 411 fatalities from terrorism attacks, including 35 civilians. The appellant's representatives had submitted that the SATP Assessment provided further support that civilian casualties had risen in 2015. It was submitted that the Tribunal failed to analyse the figures in any coherent way and thus fell into jurisdictional error in failing to give "proper, genuine and realistic" consideration to the cogency of this evidence in concluding that there was an improved security situation in Kurrum Agency and that the improvement was durable. It is plain however that the Tribunal did consider and assess the probity of this material in support of the appellant's claim that improvements in the security situation were temporary. The Tribunal did not accept that the material quoted by the assessment "casts doubt on the durability of the improvement in the security situation in the Kurram Agency", reasoning that the figures related to "civilian fatalities across the whole of the FATA to March 2015" and the increased fatalities reflected "the fact that, as stated in the assessment, there were ongoing military operations in North Waziristan and the Khyber Agency". 22 It was also argued that whilst the Tribunal referred to two earlier decisions of the Tribunal in which decisions had been made finding refugee status in respect of ethnic Shia applicants from Parachinar, the Tribunal failed to give proper consideration to the findings made in those decisions. That submission is also rejected. It is apparent from the reasoning of the Tribunal that the Tribunal founded its conclusion on more recent evidence than the evidence upon which those earlier decisions were based. Proposed Ground 1.3 23 Proposed Ground 1.3 seeks to challenge paragraph [49] of the Tribunal's reasons. Paragraph 49 states: As I put to Mr Hussain, a UNHCR report on a mission to Kurram likewise said that it was evident that general peace had been restored in Upper and Lower Kuram. Mr Hussain said that all these truces were violated but, as I indicated to him, I consider that the UNHCR would have taken into account the durability of the truce in making its assessment that the situation was safe for people to return to certain parts of the Kurran Agency. Mr Hussain's representatives referred in their submissions to the fact that no IDPs had returned to the Kurram Agency in the first three months of 2015 but I do not consider that this undercuts what was said in the report to the UNHCR mission to which I referred. There may be many reasons why no IDPs returned to the Kurram Agency in the first three months of 2015 but the fact remains that the UNHCR report said that it was evident that general peace had been restored in upper and Lower Kurram and that it was safe for people to return to certain parts of the Kurram Agency. 24 It was argued that the Tribunal's statement "there may be many reasons why no IDPs (internally displaced persons) returned to the Kurram Agency in the first three months of 2015" was speculative, not based on evidence and the Tribunal glossed over contrary evidence. It was submitted that the evidence of a lack of IDPs returning to the Kurram Agency "went directly to inferences as to perceived safety in Kurram Agency". The Tribunal's reasons, however, disclose that the Tribunal's view that the information that no IDPs had returned to the Kurram Agency in the first three months of 2015 did not "undercut" the other information that it was safe for people to return to Upper and Lower Kurram was based on an evaluation of the available country information and critically, the UNHCR report. Again, the Tribunal's reasons disclose the process of weighing evidence and do not disclose any jurisdictional error in this regard. 25 To the extent that ground 1, in substance, invites merits review of the finding of facts made by the Tribunal about the security situation in Kurrum Agency, it is well established that the findings of fact, including the weight to be given to particular evidence, are a matter for the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272. Ground 2 26 The second ground of appeal claims that the Tribunal erred by failing to consider a claim that the appellant was owed complementary protection obligations by reason of generalised violence. The FCC rejected this ground, referring to paragraphs [58] to [60] of the Tribunal's reasons. The FCC held that it was clear that the Tribunal, in considering complementary protection, relied in part on its earlier discussion of the general security situation in the Kurram Agency and noted that the appellant virtually invited that approach, because the appellant expressed his claims in the same way. No error in the FCC decision is disclosed. In considering whether the appellant would face a real risk of significant harm if returned to Pakistan, the Tribunal expressly referred to its "findings of fact above with regard to the improved security situation in the Kurram Agency in general". In dealing with the question of complementary protection, the Tribunal took into account the appellant's claims about generalised violence. 27 For these reasons, leave to amend the grounds of appeal is refused and the appeal must be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 23 June 2017