DWN 084 v Republic [2017] NRSC 84; Appeal Case 5 of 2016 (20 October 2017)

IN THE SUPREME COURT OF NAURU

AT YAREN

[APPELLATE DIVISION] Case No. 5 of 2016

IN THE MATTER OF an appeal against a decision of the Refugee Status Review Tribunal TFN T15/00103 brought pursuant to s 43 of the Refugees Convention Act 1972

BETWEEN

DWN 084 Appellant

AND

THE REPUBLIC Respondent

Before: Crulci J

Appellants: C. Symons
Respondent: R. O’Shannessy

Date of Hearing: 20 June 2017

Date of Judgment: 20 October 2017

CATCHWORDS

APPEAL - Refugees – Refugee Status Review Tribunal – Point of Law – Procedural Fairness – Failure to Identify Key Issue – Appeal ALLOWED

JUDGMENT

1. This matter is before the Court pursuant to section 43 of the Refugee Convention Act 2012 (“the Act”) which provides:
   

43 Jurisdiction of the Supreme Court

(1) A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

(2) The parties to the appeal are the Appellant and the Republic.

...

2. The determinations open to this Court are defined in section 44 of the Act:
   

44 Decision by Supreme Court on appeal

(1) In deciding an appeal, the Supreme Court may make either of the following orders:

(a) an order affirming the decision of the Tribunal;

(b) an order remitting the matter to the Tribunal for reconsideration in accordance with any directions of the Court.

3. The Refugee Status Review Tribunal (“the Tribunal”) delivered its decision on 15 February 2016 affirming the decisions of the Secretary of the Department of Justice and Border Control (“the Secretary”) of the 31 August 2015, that the Appellants are not recognised as refugees under the 1951 Refugees Convention^[1] relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”), and is not owed complementary protection under the Act.
   
4. The Appellants filed a Notice of Appeal on 6 May 2016, beingnd the 42-day time limit within which to lodge an appeal of a decision of the Tribunal unde under s 43 of the Act. On 6 April 2017, a Further Amended Notice of Appeal was filed. The Appellant filed an application for an order to extend time on 4 April 2017 up to and including the date on which the order is made. The Respondent indicated that it consented to the extension of time at the beginning of the hearing before the Court, and leave was granted.
   

BACKGROUND

5. The Appellant is a single male from Darsamand in the Khyber Pakhtunkhwa province in the north of Pakistan. He is a Sunni Muslim. He was educated for 11 years in Abu Dhabi and Rawalpindi, before returning to Darsamand to work as a shopkeeper. His parents and four brothers live in Rawalpindi, three married sisters live in Darsamand, and one other brother lives in Adelaide.
   
6. The Appellant departed Pakistan on 8 July 2013 for Australia via Thailand, Malaysia, and Indonesia. In Indonesia, the Appellant boarded a boat for Australia and arrived at Christmas Island on 3 August 2013. He was transferred to Nauru on 25 January 2014.
   

INITIAL APPLICATION FOR REFUGEE STATUS DETERMINATION

7. The Appellant attended a Refugee Status Determination (“RSD”) Interview on 6 July 2014. The material claims presented at that interview were summarised by the Secretary as follows:
   
   • He is a Sunni Muslim, born in Darsamand, Hangu, Khyber Pakhtunkhwa.
   • He fears being killed or tortured by the Taliban in Pakistan because:
     • He will be perceived to be an opponent of the Taliban because his father has refused a Taliban demand for their land, and a ransom of 25 lakh rupees; and he has sought asylum in a western country
     • He is a member of the particular social group ‘wealthy Pakistanis’, as his family is financially well off.
   • His family ran a general store “Khan General Store” in Darsamand since 2004.
   • In February or March 2013, the Taliban came to their village and demanded land from his father to build a centre.
   • His father refused the demand. Following this rejection, the Taliban would come to the shop and harass them – accusing them of selling out of date products or under-weighing products. They would throw things around the shop and push them around to pressure them to sell the land. They then sent a threat letter demanding to his father demanding (sic) that he give up his sons to be with the Taliban and also provide a payment of 25 lakh rupees.
   • In March or April 2013, three people from Darsamand village went missing for a week and were found beheaded. The Taliban sent a message to the villagers stating that all those who opposed them would suffer the same fate.
   • Because of this, his father closed the shop and fled to Rawalpindi on March 2013.
   • On 8^th July 2013, he flew out of Islamabad and made his way to Australia via Malaysia, Thailand and Indonesia.
   • The Pakistan authorities will not have the ability to protect him as they are not even able to protect their own high ranking officials from the Taliban.
   • He cannot relocate anywhere else in Pakistan as there is no place which is safe.^[2]
     
8. The Secretary said that while “not all of the Applicant’s material claims can be established with certainty”, the “Applicant’s account of his profile and experiences and the events leading up to his flight was generally detailed and consistent”. Accordingly, the Secretary extended to the Appellant the benefit of the doubt and accepted the material claims as true.^[3]
   
9. The Secretary noted country information that the Tehreek-e Taliban (“TTP”) is highly active in and around the Appellant’s home village of Darsamand, and employ the tactics of extortion and forced recruitment. The Secretary therefore concluded that there was a reasonable possibility the Appellant would experience harm from the TTP in the reasonably foreseeable future if he were to return to Darsamand, because of his profile with the TTP.^[4] The Appellant was also unlikely to receive effective protection from the Pakistani state.^[5]
   
10. Following on from these conclusions, the Secretary considered the possibility of relocation within Pakistan. The Secretary considered country information that the TTP is fragmented and localised in nature, and was not satisfied that the Appellant had such a profile with the TTP that would mean he would be pursued elsewhere in Pakistan. Further, country information suggests that Islamabad and Lahore are relatively free from politically motivated terrorism and violence. Consequently, relocation was relevant.^[6]
    
11. The Secretary further considered that relocation was reasonable, noting that the Appellant has lived in several different places in the past, has received tertiary level education technical training, has nine years work experience selling general merchandise and running a shop as part of his father’s business, and is supported by a wealthy family. The Appellant’s parents and siblings also live and work in Rawalpindi, and have not been subject to any harm or threats. The Secretary therefore concluded that it was reasonable for the Appellant to relocate to a large urban centre in Islamabad, such as Rawalpindi.^[7]
    
12. In light of this, the Appellant’s fear of persecution was not well-founded and the Appellant was not found to be a refugee. The Appellant was also not owed complementary protection, given that he could relocate to an urban centre in Islamabad where there was no reasonable possibility of the Appellant being targeted by the TTP.^[8]
    

REFUGEE STATUS REVIEW TRIBUNAL

13. The Appellant’s pre-hearing submissions submitted on 29 November 2015 list further Convention reasons for the harm feared by the Appellant. It was said that the Appellant fears harm because of his:
    
    • Imputed anti-Taliban opinion as a perceived opponent of the Taliban because he:
      • did not give them land or meet their ransom/extortion/recruitment demands;
      • sought asylum in a western country and is therefore a supporter of western ideologies, a traitor, or a spy;
      • is perceived to be wealthy and therefore an opponent or otherwise an extortion target;
      • comes from Darsamand, an area known to be home to Pashtuns who oppose the activities of the Taliban;
    • membership of a particular social group of wealthy Pakistanis because his family is well-off;
    • membership of a particular social group comprising returnee asylum seekers;
    • religion – Sunni, on the basis that he is said to be vulnerable on relocation because Taliban can easily find him in a Sunni mosque; and
    • race – on the basis that he is a Pashtun and would have problems for this reason on relocation to a non-Pashtun area.^[9]
      
14. At the Tribunal hearing, the Appellant reiterated and added further details to his earlier claims that the Taliban coveted land belonging to his family, firstly pursuing his father, and then demanding that his father forego the land and provide two sons, including the Appellant, to join their cause. The Appellant stated that two letters were sent to the Appellant’s father; firstly, a letter demanding the land; secondly, a letter saying that as the father failed to forgo the land, the father had to provide two sons and 25 lakhs of rupees, as well as forgo the land. The Appellant said that the letterheads indicated the letters were from the Taliban, although he was not sure if they were from the TTP.^[10] The Tribunal received copies of the letters on 10 December 2015, and noted that the letterheads indicated that they were, in fact, from the Islamic Emirates of Afghanistan (“IEA”).^[11]
    
15. The Tribunal did not consider the claim to be intrinsically implausible. It noted that there was independent evidence that the killing of the three men did occur in Darsamand at the relevant time. However, the Tribunal said that there were a number of aspects of the Appellant’s claims that caused the Tribunal to question the truth of his claims. These aspects include:
    
    • The Appellant displayed ignorance of the circumstances in which the three men in the village were killed;^[12]
    • The Appellant claimed that the three men were killed by the Taliban, but country information indicates that they were killed by anti-Taliban Nabi militia;^[13]
    • The Appellant maintained that there was only one militant group operating in Darsamand at the time of the killings, and that group was the Taliban, however, country information indicated that it was the anti-Taliban Nabi militia. However, at the Tribunal hearing he conceded at one point that he was unsure whether the group was the Taliban;^[14]
    • The Appellant was unsure whether the letters forcing the Appellant to flee came from the TPP. The Tribunal noted that the letters bore the letterhead of the IEA and not the TPP;
    • There was no information before the Tribunal that the IEA operated in Pakistan. A report suggested that in Afghanistan such letters are rarely sent by the IEA and the vast majority presented in support of refugee claims are fake;^[15]
    • The claim that the Appellant feared harm on account of his actual anti-Taliban political opinion was not raised until after the hearing, and there was no explanation for the delay in advancing the claim.^[16]
      
16. The Tribunal was therefore not satisfied that the Taliban or any other militant group tried to take land belonging to the Appellant’s family, or the Taliban or any militant group targeted the Appellant’s family in the past.^[17] The Tribunal did not accept there was any reasonable possibility of the Appellant being persecuted in the reasonably foreseeable future by the Taliban or any anti-Taliban militant group for the reasons presented.^[18] While there was some evidence in the post-hearing submissions that Darsamand residents have been targets of regular attacks by Taliban or anti-Taliban militant groups in recent years, country information did not suggest that the Appellant has a well-founded fear of persecution simply because he lives there.^[19]
    
17. The Tribunal also did not accept that there was any reasonable possibility of the Appellant being persecuted because of his status as a failed asylum seeker, as there was no evidence to suggest mistreatment of returnees to Pakistan.^[20] In regards to the claimed fear of harm on the basis of membership of the particular social group of wealthy Pakistanis, the Appellant denied making this claim before the Tribunal.^[21] The Tribunal also found that it was not necessary to deal with the claimed fear of harm on the basis of the Appellant’s Pashtun ethnicity, as it was only raised in the context of relocation, and the Tribunal’s findings rendered consideration of relocation unnecessary.^[22]
    
18. In light of these findings, the Tribunal considered that the Appellant did not have a well-founded fear of persecution and was not a refugee.^[23] The Tribunal further considered that the Appellant did not face a real risk of prohibited treatment in Pakistan such as to enliven Nauru’s international obligations. The Appellant was therefore not owed complementary protection.^[24]
    

THIS APPEAL

19. The Appellant’s Amended Notice of Appeal filed on 6 April 2017 reads as follows:
    
    1. The Tribunal erred on a point of law when it failed to afford the Appellant natural justice pursuant to s 22(b) and failed to comply with its obligations under s 40(1) of the Act.
       

Particulars

1. the Tribunal made a dispositive finding at DR [147] that the Appellant did not have a well-founded fear of being persecuted by virtue of his being a resident of the Darsamand area, for the reason that country information did not support this conclusion;
2. the Tribunal’s finding referred to at (i), including the view taken by the Tribunal as to the conclusions to be drawn from the country information and the nature of the country information relied upon, were all issues that arose in relation to the determination or decision under review (collectively, ‘issues’);
3. the Tribunal was required to advise the Appellant of the issues to the extent that they would not obviously have been open on the known material;
4. the issues were not obviously open on the known material because they arose as a result of the Tribunal’s own inquiries and reference to submissions and country information provided by a different applicant for review, and not the Appellant. Further, the issues were not exposed by the decision of the Secretary as the Secretary had found (by contrast to the Tribunal) that the Appellant could not return to Darsamand due to risks associated with the Taliban;
5. the Tribunal took no steps, including during the hearing that took place on 2 December 2015, to identify the issues for the Appellant;
6. as a result the Appellant was deprived of the opportunity of ascertaining the issues and from making submissions and/or adducing evidence directed at them.
   

2. The Tribunal erred on a point of law when it constructively failed to exercise its jurisdiction or failed to carry out and/or complete its statutory task of review by proceeding on an incomplete understanding of the basis on which the Appellant claimed to be a person recognised as a refugee or a person to whom the Republic of Nauru owed complementary protection and by failing to conduct the review in light of the information, evidence and arguments which were relevant to the Appellant’s claims and the review.
   

Particulars

1. the Appellant refers to and repeats the particulars subjoined to ground of appeal one;
2. despite having the power under s 36 of the Act to do so, the Tribunal failed to invite the Appellant to provide information, in the form of submissions or evidence, directed at the issues.
   

3. The Tribunal erred on a point of law when it constructively failed to exercise its jurisdiction or failed to carry out and/or complete its statutory task of review.
   

Particulars

1. at DR [147] the Tribunal purported to consider whether the Appellant had a well-founded fear of being persecuted as a resident of Darsamand;
2. in this context, the Tribunal noted that there was clearly militant activity in the Darsamand area but concluded that country information did not support the proposition that the Appellant had a well-founded fear of persecution simply because he resided there.
   

20. The Appellant’s grounds of appeal relate to considerations and findings of the Tribunal set out at [147] of the Decision Record. That paragraph reads as follows:
    

“As noted above, in post-hearing submissions some 14 reports of insurgent activity and attacks were cited as evidence that residents of Darsamand have been the targets of regular attacks by militant groups over recent years. This claim is not contingent on a favourable assessment of the applicant’s credibility, as it suggests that simply being a resident of Darsamand, which the Tribunal accepts the applicant to be, places him at risk of persecution or other significant harm. However, only one of the reports cited actually refers to an attack on a residence in Darsamand. The report entitled Shopkeeper killed in Hangu blast contains no relevant information, such as whether it was an accident or a deliberate attack, and if the latter, why the person might have been targeted and whether any group or individual is believed responsible. The information does include a report of a bombing of a school in the Darsamand area in 2011, providing some support for at least this aspect of the applicant’s claims. Most of the reports refer to encounters between militants and the Pakistani authorities. There is clearly militant activity in the Darsamand area, but it does not follow from this, and the country information does not support the proposition, that the applicant has a well-founded fear of being persecuted simply because he resides there.”

21. The Respondent characterises the above as a finding made in response to the claim in the Appellant’s pre-hearing submissions that “as he comes from Darsamand, an area known to be home to Pashtuns who oppose the activities of the Taliban in the region, he will be imputed with an opinion in opposition to the Taliban”.^[25] While the Appellant accepts that in his written submissions this claim was made, he submits that this claim is distinct from that considered by the Tribunal at [147]. The Appellant submits that the claim in the pre-hearing submissions concerns a fear of harm emanating exclusively from the Taliban because of his anti-Taliban political opinion. This claim was considered and disposed of by the Tribunal at [146] of the Decision Record.^[26] However, the claim considered at [147] was not exclusively connected to the Taliban, but was concerned with the prospect of harm due to the generalised militant activity in the Darsamand area.
    
22. In relation to Ground 1, the Appellant refers the Court to Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (“Alphaone”),^[27] and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (“SZBEL”),^[28] to submit that a Tribunal is required to inform an Applicant about the issues that are determinative to the review where those issues are not obvious on the known material. As apparent from the particulars, according to the Appellant, those issues include whether the Appellant had a well-founded fear of persecution by living in Darsamand, and the nature, and Tribunal’s view, of the country information used to determine that issue, being the 14 reports of insurgent activity and reports referred to. The Appellant submits that the Tribunal was required to inform the Appellant of these issues regardless of that the Appellant did not explicitly articulate a claim that he would be persecuted simply by virtue of living in Darsamand.
    
23. The Respondent contends that, as the claim made in the Appellant’s written submissions was not put before the Secretary, it is misconceived for the Appellant to rely on SZBEL to suggest that the issue was not properly identified, given it was not exposed by the Secretary’s decision. The Respondent further contends that obligations of natural justice did not compel the Tribunal to disclose what it was minded to decide, or expose its “mental processes or provisional views to comment before making a decision”: Alphaone.
    
24. In relation to Ground 2, the Appellant asserts that the Tribunal was required to invite the Appellant to provide information directed at the issue of whether the Appellant had a well-founded fear of persecution by living in Darsamand. According to the Appellant, the Tribunal was required to do so in order to properly carry out its obligation to make findings of fact with regards to whether the Applicant is a refugee or is owed complementary protection, an obligation that must be complied with for the Tribunal to properly discharge its statutory function of reviewing the decision of the Secretary. The failure of the Tribunal to obtain such information meant the review proceeded on an incomplete understanding of the basis on which the Appellant advanced his claim for refugee status and complementary protection.
    
25. The Respondent submits that there is no basis for the submission that the Tribunal was required to afford the Appellant a further opportunity to be heard with respect to his claim to fear harm by being a resident of Darsamand. The Appellant advanced this claim in the written submissions to the Tribunal, and was questioned upon it by the Tribunal.^[29] However, according to the Respondent, the questioning was “unproductive” as it did not elicit further useful information from the Appellant.
    
26. In relation to Ground 3, the Appellant submits that the Tribunal is required to engage in a “real or active” assessment of the Appellant’s claims, including those that arose from the information the Tribunal obtained itself. The Tribunal failed to engage in any evaluation of the country information referred to at [149]. The Tribunal merely referred to the report entitled Shopkeeper killed in Hangu blast, and an unnamed report of a bombing of a school in the Darsamand area, and failed to consider other of the 14 reports on insurgent activity before the Tribunal. The Tribunal also failed to give any explanation for the conclusion that the Appellant does not have a well-founded fear of persecution simply because he lives in Darsamand. As a consequence, the Tribunal failed to properly and completely undertake its statutory task of review.
    
27. In response, the Respondent says that the Tribunal Decision Record reflects that the Tribunal identified and addressed the only material referring to a residence, being the report entitled Shopkeeper killed in Hangu blast, but there was insufficient information in the report to draw any conclusions about the motivation for the blast. The reference to the “14 reports of insurgent activity and attacks” also reflects that the Tribunal considered those reports in making its decision. The Tribunal therefore met its natural justice obligations in the circumstances.

CONSIDERATIONS

Interpretation of paragraph [147]

28. At [147], the Tribunal says “As noted above, in post-hearing submissions some 14 reports of insurgent activity and attacks were cited as evidence that residents of Darsamand have been the targets of regular attacks by militant groups over recent years”. The Respondent asserts that this refers to the 12 articles cited or referred to at [97], and the additional webpage referred to at [98].
    
29. The Respondent points out that the first sentence of [97] is the same as the second sentence of [48] of the Appellant’s post-hearing submissions, i.e., “The Taliban and associated militants have maintained a violent presence in the Darsamand and the wider Hangu area and continue to carry out violent attacks against perceived dissenters”. The footnotes in [48]-[49] of the post-hearing submissions (footnotes 15 and 16) contain four URL links. At [97], the Tribunal set out the first link and the name of the report, and then the second link and what the article related to. It also set out the third link and said “This webpage contains 10 articles, but it was unclear which report was being relied on, as none appeared to have any relevance to the point being asserted”.^[30] At [98], the Tribunal referred to the webpage of Pakistan Today, which was also referenced by the Appellant in footnote 16. Therefore, the Appellant provided 13 articles or reports to the Tribunal in the context of the continued risk of harm in Darsamand. According to the Respondent, the proper inference to be drawn is that the 14 reports referred by the Tribunal were those contained in footnotes 15 and 16 in the Appellant’s post-hearing submissions.^[31] The Respondent submits that this supports that, at [147], the Tribunal was addressing the Appellant’s claim of continued harm in Darsamand.^[32]
    
30. The particular claim addressed by the Tribunal at [147], according to the Respondent, was that, as the Appellant “comes form Darsamand, an area known to be home to Pashtuns who oppose the activities of the Taliban in the region, he will be imputed with an opinion in opposition to the Taliban”. This claim appears in the Appellant’s pre-hearing submissions, following on from three other claims expressed as follows:
    
    1. [The Appellant] fears that he will be harmed in Pakistan as a result of his actual and/or imputed political opinion as being against the Taliban.
    2. [The Appellant] fears being perceived as an opponent of the Taliban due to his father refusing the Taliban demand for their land in Darsamand, as well as subsequent refusals of Taliban demands for money and recruitment of male family members.
    3. [The Appellant] fears that the perceived wealth of his family may also be a factor in the Taliban’s perception of him as an opponent and target of their known extortion or kidnapping practices.^[33]
       
31. The submission identified by the Respondent, taken in its context, therefore plainly concerns a fear of harm emanating exclusively from the Taliban.
    
32. The claim considered by the Tribunal at [147] was concerned with a fear of harm due to generalised militant activity in the Darsamand area. The Tribunal’s statement that the claim “is not contingent on a favourable assessment of the applicant’s credibility, as it suggests that simply being a resident of Darsamand... places him at risk of persecution or other significant harm” suggests that the harm contemplated by the Tribunal at [147] was not exclusively connected to the Taliban. The claims connected to the Taliban were considered and disposed of by the Tribunal at [146], and the proceeding paragraphs, under the heading “Actual and Imputed Political Opinion – Taliban”.
    
33. The Court therefore accepts that while the reports referred to by the Tribunal at [147] may have been those contained in footnotes 15 and 16 to the Appellant’s post-hearing submissions, the reports were not used by the Tribunal to decide the claim advanced by the Appellant in the pre-hearing submissions. They were used to decide a claim of a different nature.
    

Ground 1

34. Previous decisions of this Court^[34] have approved Australian authorities establishing that, in order to afford a review Applicant procedural fairness, it is necessary that the Applicant be informed about the issues that are determinative to the review application where those issues are not obvious on the known material, including the decision of the primary decision-maker.
    
35. In Alphaone,^[35] an appeal from a decision of the Supreme Court of the Australian Capital Territory directing the Commissioner of the ACT Revenue to issue Alphaone Pty Ltd with a “X” Video Merchants Licence, Northrop, Miles and French JJ considered whether the trial judge arrived at this conclusion in accordance with the principles of natural justice and said:
    

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity to be heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material...

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material...”^[36]

(emphasis added)

36. In SZBEL,^[37] the Appellant’s application for review of a decision to reject his application for a protection visa was rejected on the basis that the RRT did not accept the Appellant’s evidence as to two particular events that were not in doubt before the primary decision-maker. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ considered the meaning of s 425(1) of the Migration Act 1958 (Cth), which is expressed in similar terms to s 40 of the Nauruan Act. Their Honours said that “the issues arising in relation to the decision under review”, which s 425(1) requires to be identified to an Applicant by the Tribunal, are not “sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa”.^[38] Rather, the “issues arising in relation to the decision under review” are generally defined by the reasons given for the decision.^[39] As Besanko J in SZHKA v Minister for Immigration and Border Protection put it, “issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question”.^[40]
    
37. As found by the High Court in SZBEL, in the absence of further explanation by a tribunal, an Applicant for review is entitled to assume that the issues before the tribunal were the same as those before the primary decision-maker. Their Honours said:
    

“The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell what the applicant what the other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.^[41]

(emphasis added)

38. Their Honours however concluded that “procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”.^[42]
    
39. Following on from, and approving of, SZBEL, was Minister for Immigration v SZGUR,^[43] in which French CJ and Kiefel J said in relation to the content of the common law hearing rule:
    

"Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision."^[44]

40. The Full Court of the Federal Court expressed approval of this statement of authority in Durani v Minister for Immigration and Border Protection,^[45] and single-judge decisions of the Federal Court have also cited the authority with approval.^[46] However, as recognised by Gray J in SZHKA v Minister for Immigration and Citizenship, the “line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all the circumstances, but it does exist”.^[47]
    
41. The issues the Appellant alleges the Tribunal ought to have made known to the Appellant are: (i) whether the Appellant had a well-founded fear of persecution by virtue of living in Darsamand because of generalised militant activity; (ii) the nature of the country information relevant to issue (i); and (iii), the Tribunal’s view of the country information relevant to issue (i), being the 14 reports of insurgent activity and reports referred to.
    
42. Clearly, whether the Appellant had a well-founded fear of persecution by virtue of living in Darsamand, upon the available country information was a matter “not of an insubstantial nature” that the Tribunal considered to be in question. Tied to that issue is the issue of the interpretation of that country information relied upon by the Tribunal.
    
43. Upon commencement of the Tribunal hearing, the Presiding Member identified as issues whether the Appellant had a well-founded fear of being persecuted in his country of nationality, whether the Appellant could relocate to another part of his country to avoid the threat, and whether returning the Appellant to Pakistan would breach Nauru’s international obligations.^[48] The Member did not identify as issues the three issues set out at [41] above.
    
44. At the Tribunal hearing, a Tribunal Member put to the Appellant that there was ongoing militant activity in the Darsamand^[49] area:
    

TRIBUNAL MEMBER: Well, you’ve said that – you’ve talked about the harassment you got, the threatening letters and then three men were killed brutally. And that was effect (sic) that triggered your departure from Dassima, but you didn’t know about any action taken by the elders or any other events at this time. But in fact the various reports indicate that the killing of those three men was in response to a significant event, that there had been a lot of problems with militant activity in the area and that much is perhaps consistent with what you’ve said.

THE INTERPRETER: And that – sorry?

TRIBUNAL MEMBER: And that much, at least is perhaps consistent with what you’ve said.

THE INTERPRETER: Sorry. I didn’t get that.

TRIBUNAL MEMBER: The fact that there has been a lot of militant activity in the area, that is kind of consistent with what you’ve said. And there was a militant base outside of Dassima. There was some sign of a big fight involving a number of militants. And the village elders and villagers were very upset about this and they organised a big Lashkar to go and drive the militants out. And the villagers, a big group of them, they did – they went to the militant base, although the militants had fled, and they destroyed the base. And it was in retaliation for this that the three men were killed.^[50]

45. However, this exchange occurred in the context of questioning focused on the killing of the three men, including the reason for the Appellant not being involved in the “big Lashkar”, and that, the fact of the killing taking place, suggests the Taliban may have had more substantial concerns than the Appellant and his father.^[51]
    
46. The Tribunal also questioned the Appellant on the conflict between the Taliban and Nabi Hanafi (otherwise known as “Maulana Nabi”), being an anti-Taliban warlord;^[52] whether the Appellant was being targeted by the Taliban or anti-Taliban militia; and whether the three men were killed by the Taliban or anti-Taliban militia.^[53] The Tribunal also made reference to country information provided by the Appellant’s representative about people being targeted in militant attacks in Islamabad and Rwalpindi, however, no reference was made to the situation in Darsamand.^[54]
    
47. It is therefore apparent that the Tribunal failed to identify to the Appellant, either explicitly or through thorough questioning, the three issues set out at [41] above.
    
48. In addition, the Appellant was not put on notice of those issues by the Secretary’s decision, as the Secretary did not consider those issues to be dispositive.^[55] Even if accepted that the 14 reports referred to by the Tribunal were referenced in the Appellant’s post-hearing submissions, the issues identifiable from that material were not obviously known to the Appellant because the material was used to decide a claim different to that advanced by the Appellant. The reports were provided by the Appellant in the post-hearing submissions in support of the statements that “The Taliban and associated militants have maintained a violent presence in the Darsamand and wider Hangu area” and “The state authorities of Pakistan have been unsuccessful in their attempts to rid the Hangu area of Taliban militants.”^[56] The claim therefore advanced by the Appellant, and supported by the reports, was that residents of Darsamand continued to be threatened by violence from the Taliban; a claim that is exclusively connected to the Taliban. However, the Tribunal used the reports at [147] to decide a different claim, being whether the Appellant had a well-founded fear of persecution due to the generalised militant activity in the Darsamand area. This being the case, the issues of (i) whether the Appellant had a well-founded fear of persecution by living in Darsamand because of generalised militant activity; (ii) the nature of the country information relevant to issue (i); and (iii), the Tribunal’s view of the country information relevant to issue (i), were not obvious on the known material.
    
49. Although, the Court is mindful of that the Tribunal is not required to expose its “mental processes or provisional views”,^[57] or give a “running commentary”^[58] of its view of the evidence, the issue of whether the Appellant did had a well-founded fear of persecution by virtue of living in Darsamand, because of relevant country information, is clearly directed at more than simply the “mental processes” of the Tribunal. The Tribunal is required to identify the matter as an issue. The Respondent submitted that the Tribunal did put country information relating to attacks in the Darsamand area to the Appellant, however, this was clearly in the context of questioning on the activity of Taliban and anti-Taliban militia,^[59] it did not put to the Appellant issues about living conditions in Darsamand in a general sense. This Ground of appeal succeeds.
    

Ground 2

50. The Appellants principally plead constructive failure of the Tribunal to exercise jurisdiction because of the Tribunal’s failure to invite the Appellant to comment on the issues identified by the Appellant in his Amended Notice of Appeal (see [41]).
    
51. The basis of this ground is unclear as typically before this Court the matter is pleaded as a denial of procedural fairness because of a failure to invite comment on a matter that is "credible, relevant and significant" (as in ROD 122 v Republic of Nauru, ROD 124 v Republic of Nauru, DWN 049 v Republic of Nauru and QLN 116 v Republic of Nauru^[60]). Here, the failure to invite an Applicant to comment on an issue/information is cast as a constructive failure to exercise jurisdiction.
    
52. Generally the ground of constructive failure to exercise jurisdiction is used where the Tribunal has failed to make an obvious inquiry about a critical fact. The question here would be whether writing to the Appellant and inviting a response constituted such an inquiry. However, the Appellant has not pleaded Ground 2 in this way.
    
53. In light of the Court’s determination that Ground 1 of the appeal succeeds, the Court finds it unnecessary to make a finding on this ground.
    

Ground 3

54. Here the Appellant submits that the Tribunal failed to properly engage with the country information, by just noting the one article and then referencing the other reports in passing. Previous decisions of this Court^[61] have held that the country information relied upon by the Tribunal is a matter for the Tribunal, and not for the Court to review on appeal. The Tribunal is also not bound in any way to refer to every piece of country information put before it. This grfails.
    

ORDER

55. (1) The Appeal is allowe type="none">
56. (1) The decision of the Tribunal TFN T15/00103 dated 15 February 2016 is quashed.
57. (2) The matter is remitted to the Refugee Status Review Tribunal under section 44(1)(b) for reconsideration according to law.
    

-------------------------------------------

Judge Jane E Crulci

Dated this 20 October 2017

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^[1] 1951 Refugee Convention and 1967 Protocol, also referred to as “the Refugees Convention” or “the Convention”.

^[2]Book of Documents (“BD”) 77.
^[3]Ibid 78.
^[4]Ibid 81.
^[5]Ibid.
^[6]Ibid 82 – 83.
^[7]Ibid 84.
^[8]Ibid 85.
^[9]Ibid 261 at [26].
^[10]Ibid 263 at [41].
^[11]Ibid 269 at [85].
^[12]Ibid 274 – 275 at [122]-[127].
^[13]Ibid 276 – 277 at [129].
^[14]Ibid 277 at [137].
^[15]Ibid 278 at [141], [143].
^[16]Ibid 279 at [144].
^[17]Ibid 279 at [145].
^[18]Ibid 279 at [146].
^[19]Ibid 279 – 280 [147].
^[20]Ibid 80 at [149].
^[21]Ibid 280 at [151].
^[22]Ibid 280 at [152].
^[23]Ibid 280 at [153].
^[24]Ibid 281 at [157]-[158].
^[25]Ibid at [13].
^[26]Supreme Court Transcript p 6 at ln 23 – 25.

^[27]Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (“Alphaone”).

^[28]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”).
^[29]See BD 185 ln 13 ff.
^[30]BD 271 at [97].
^[31]Supreme Court Transcript p 19.
^[32]Ibid.
^[33]BD 95 – 96 at [13].

^[34]WET 069 v The Republic of Nauru at [38]; QLN 116 v The Republic of Nauru [2017] NRSC 63 at [56].
^[35]Alphaone, Supra note 27.
^[36]Ibid at 591 – 592.
^[37]SZBEL, Supra note 28.
^[38]Ibid at [35].
^[39]Ibid. See also SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1 (“SZHKA”) at [7].

^[40]SZHKA, Supra note 39 at [ ]. See also Hazra v Minister for Immigration and Border Protection [2017] FCCA 688; (2017) 319 FLR 81 at [13] (per Judge Smith); AUX16 v Minister for Immigration and Border Protection [2017] FCCA 1356 at [31] (per Judge Jarrett); ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [26]- [27] (per Bromberg J); BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [163] (per Bromberg J).
^[41]SZBEL, Supra note 28 at [35].
^[42]Ibid at [48].
^[43]Minister for Immigration v SZGUR [2011] HCA 1.
^[44]Ibid at [9].
^[45]Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; (2014) 314 ALR 130 at [57].

^[46]Judd v Minister for Immigration and Border Protection at [38] (per Perry J); AOJ15 v Minister for Immigration and Border Protection [2017] FCA 675 at [33] (per Burley J); Kaur v Minister for Immigration and Border Protection [2015] FCA 1 at [57] (per Robertson J).
^[47]SZHKA, Supra note 39 at [7].
^[48]BD 145 ln 17 – BD 146 ln 5.
^[49]“Dassima” and “Darsamand” appear to be used interchangeably in the Tribunal transcript.
^[50]BD 160 ln 45 – BD 161 ln 18.
^[51]Ibid 161 – 162.
^[52]Ibid 179 – 182.
^[53]Ibid 182 – 185.
^[54]Ibid 193.
^[55]SZBEL, Supra note 28 at [35].
^[56]BD 219 at [48]-[49].
^[57]SZGUR, Supra note 42 at [9].
^[58]SZBEL, Supra note 28 at [48].
^[59]See BD 182 – 185.

^[60]ROD 122 v Republic of Nauru [2017] NRSC 39; ROD 124 v Republic of Nauru [2017] NRSC 49; DWN 049 v Republic of Nauru [2017] NRSC 52; QLN 116 v Republic of Nauru [2017] NRSC 63.
^[61]ROD 128 v Republic of Nauru [2017] NRSC 8; QLN 110 v Republic of Nauru [2017] NRSC 55.