AAY15 v Minister for Immigration

[2015] FCCA 852

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAY15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 852

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.424AA, 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

Applicant: AAY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 464 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay First Respondent’s cost fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 464 of 2015

AAY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ under on the Court’s jurisdiction over s.476 of the Migration Act 1958 in respect of the decision of the Tribunal made on 28 January 2015 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The ground in the application are as follows:

   Ground

   I am a Shia Muslim and a member of the [T] tribe. I believe the tribunal member failed to consider my claim that I fear being harmed on account of my religion no matter where I relocate to, if I were to be returned to Pakistan. There has been an escalation of terrorist attacks in the recent past and many Shia Muslims have been killed. The tribunal member too seems to agree at paragraph 108 that there is some level of risk to me due to such terrorist attacks, nevertheless decided that I should not be afforded protection.

3. The last sentence on the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding

4. The Court identified to the applicant that it was concerned that the application failed to disclose an arguable jurisdictional error.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. The applicant was assisted by an interpreter as well as a friend.  The Court invited both the applicant and the friend to articulate why there was an arguable jurisdictional error.  The Court was informed:

   We need a lawyer to find a jurisdictional error.

6. The applicant sought an adjournment so as to obtain legal advice to identify a jurisdictional error.  The Court identified that this is not a Court of appellate review and that the Court is not entertaining a fresh hearing on the merits but is confined to dealing with matters which identify an arguable jurisdictional error.  The Court identified there is no utility in granting an adjournment if there is no arguable jurisdiction, as it will only increase the costs to the parties and utilise valuable Court time. 

7. It is not appropriate to file an application in these proceedings that does not identify an arguable jurisdictional error for the purpose of having an opportunity to get further legal advice.  An application brought in this Court’s jurisdiction for a Constitutional writ must disclose an arguable jurisdictional error, or on the return date there must be able to be identified an arguable jurisdictional error. 

8. The applicant sought to argue with the benefit of the assistance from his friend that the Tribunal had not properly considered the issue of relocation.  It was also put that what was happening in Pakistan has not been properly understood and that the applicant was a minor when he entered Australia.  The applicant also sought to advance that what was identified in his application identified an inconsistency in relation to the reasoning of the Tribunal so as to constitute a jurisdictional error. 

9. I am satisfied that there is no jurisdictional error in the decision of the Tribunal and that the applicant had a genuine hearing on 14 November 2014. The findings made by the Tribunal in relation to relocation by the applicant were open on the material before the Tribunal.  There is no inconsistency in reasoning of the Tribunal.  The applicant is a citizen of Pakistan, and his claims were addressed by reference to that country.  The Tribunal carefully identified the alleged fears of the applicant and the submissions that had been made to the Tribunal. 

10. The Tribunal identified that it was not to the applicant’s credit that he propounded a manufactured letter from Fighter Tech Communications.  The Tribunal carefully identified the submissions advanced on behalf of the applicant and his claims.  The Tribunal received post-hearing submissions on 1 December 2014 that it carefully took into account and relevantly found in para.71:

    71.    Contrary to the post-hearing submission by Mr [H]’s representatives that he had provided consistent evidence throughout the processing of his application, I consider that it is clear that he has changed his evidence in an attempt to respond to difficulties which have been raised with his claims.  As referred to above, in the statutory declaration accompanying his original application Mr [H] said that he had intended to undertake further studies in [KI] but there had been a bomb explosion on the 10th day of [M] in the Muslim calendar in [KI] which had killed 90 people and injured 165 people.  He said that as a consequence his father had asked that he return to his village.  He said that he had also been scared so he had returned.  At the Departmental interview Mr [H]’s representative submitted that he had ‘just escaped with his own life’ after attending the Ashura procession in [KI] in 2010.  In the decision under review the primary decision-maker referred to the fact that the bomb explosion at Ashura in [KI] had in fact been in December 2009, some eleven months before Mr [H] claimed to have left [KI], and he therefore expressed doubt as to whether Mr [H] had returned to [P] for this reason, owing to the time lapse, if at all.

11. The Tribunal found that the applicant changed his evidence in an attempt to respond to difficulties which had been raised with his claims. 

12. Relevantly the Tribunal found:

    73. As I put to Mr [H] in the course of the hearing before me, there is nothing in the independent evidence to support his claim that 12 or 13 people from the ISO were killed in the bomb blast at the CID building in [KI] in November 2010.  Mr [H] said that he did not have any evidence and that he had got all this information from the ISO.  In their submission dated 5 December 2014 Mr [H]’s representatives referred to a media report stating that nearby buildings including houses of police officials and a mosque had been damaged in the blast.  While they conceded that this report did not mention ISO members being killed, they submitted, without referring to any evidence, that the ISO people to whom Mr [H] had referred had been praying in the mosque which had been damaged.  I do not accept that there is any independent evidence to support Mr [H]’s claim that 12 or 13 people from the ISO were killed in the bomb blast at the CID building in [KI] in November 2010.  I consider that he has fabricated this claim in an attempt to explain his supposed return to [P] in November 2010.  I consider that he was forced into making this claim after his original claim that he had returned to [P] after the bomb explosion in [KI] on the 10th day of [M] was exposed as inconsistent with his claimed movements, given that this bomb explosion actually took place in December 2009.  I do not accept that, as he has claimed, he was taking part in this procession given that I consider that it is clear that at the time when he made his application for a protection visa he believed that this bomb explosion had taken place at [M] in 2010, not in 2009.

    74. Mr [H] has claimed that he decided to leave Pakistan after a bomb blast which he said in the statutory declaration accompanying his original application had occurred in March or April 2012 in [P].  He said that he had been looking after his brother’s shop and the bomb blast had been about 50 metres away but he had not been hurt.  As referred to above, the primary decision-maker identified the bomb blast in question as one which actually occurred in February 2012.  At the hearing before me Mr [H] claimed that his brother’s shop had in fact been destroyed in this bomb blast.  He said that because of the bomb blast the roof and everything in the shop had been damaged and broken.  After I put to him that I had difficulty in understanding how this could have been the case if he had been in the shop and he had not been injured at all he said that all the glasses and mirrors and things had fallen over and had been broken but luckily he had been safe.  I remain of the view that if his brother’s shop had in fact been destroyed by this bomb blast then it is not credible that he could have escaped unhurt as he has claimed.  I do not accept that he is telling the truth about having been looking after his brother’s shop in [P] at the time of this bomb blast but having luckily escaped unhurt when his brother’s shop was destroyed.  I consider that he has seized on this event in an attempt to explain his decision to leave Pakistan when he did.

    …

    79. In their post-hearing submission Mr [H]’s representatives submitted that he had disclosed at the interview with the primary decision-maker that the letter from [FTC] which he had produced to the Department was fraudulent and they referred to their previous submission that it was only bogus insofar as his name and the amount of time for which he had worked there were concerned and that it was accurate in stating that he had worked there and what his duties had been.  They said that they were instructed that he had in fact moved to [KI] in January 2009, not July 2009 as he had said at the hearing.  They submitted that this was what he had said in his application for a protection visa but, as referred to above, in that application he did not state the month in 2009 in which he had moved to [KI].  He indicated that he had only completed his education in [P] in 2009 and this is consistent with his evidence at the hearing before me that he completed his ‘Matric’ (Year 10) in April 2009.  Mr [H]’s representatives submitted that it was reasonable to expect errors pertaining to dates and locations in stressful circumstances such as Departmental interviews and RRT hearings.  However I consider that Mr [H]’s own evidence that he completed his ‘Matric’ in April 2009 and only moved to [KI] two or three months after that is far more consistent with his previous evidence than the claim that he moved to [KI] in January 2009.

    80. Even if one were to accept that the date on the letter which Mr [H]’s representatives produced to the Tribunal (January 2010) is an error (which it must be given that the letter states that Mr [H] worked for the company until May 2010 and given that Mr [H] claims that he only asked his father to get this letter after he realised that the letter which he had produced to the Department had some wrong information in it), the fact remains that not only is it inconsistent with his own evidence at the hearing before me with regard to when he moved to [KI] but also it has the same signature and stamp on it as the previous letter which he has said was manufactured and signed by his cousin.  I conclude that both letters are bogus documents and I give them no weight.  As I put to Mr [H], I consider that his willingness to produce bogus documents to the Department and the Tribunal also reflects adversely on his credibility.

    …

    82. In their post-hearing submission Mr [H]’s representatives submitted that, when he had been asked at the entry interview if he was a member of any other particular social or religious group and he had answered ‘No’, this answer had been correct insofar as he had not been a member of the ISO, only a volunteer.  However, as referred to above, the letter from the ISO which they themselves produced refers to him as ‘an active member’ of the ISO.  They submitted that, when he had been asked if he had been associated or involved with any political group and he had answered ‘No’, this answer was also correct because Mr [H]’s understanding of the ISO was that it was a community based group and religious organisation advocating for the rights of Shia Muslims.  I do not accept these explanations which appear to me to be a disingenuous attempt to find excuses for Mr [H]’s failure to mention his claimed involvement with the ISO when he was given the opportunity.  As I put to Mr [H], I consider that his answers at the entry interview cast doubt on his claim that he was involved in the ISO and they also cast doubt on his explanation in his statement made on 5 November 2014 that he was never given the opportunity to mention his involvement in the ISO earlier.

    …

    84. I have not considered it necessary to schedule a further hearing to take evidence from Mr [AH].  I do not accept that the letter from Mr Irfan Ali represents independent corroboration of Mr [AH]’s claim in the letter dated 10 November 2014 that he holds a position in the ISO, given that the letter from Mr Irfan Ali is on the same letterhead and bears the same wet stamp as the original letter from Mr [AH].  As I put to Mr [H], I consider that it is relevant that the Australian Department of Foreign Affairs and Trade has advised that document fraud is extremely common in Pakistan.[1]  Even if Mr [AH] were to give oral evidence confirming what was said in the letters, I would still have to consider what weight I would give to that evidence in the absence of any independent corroboration of Mr [AH]’s claim that he holds a position in the ISO.  As I put to Mr [H], I give greater weight to his failure to mention his claimed involvement in the ISO before November 2014 than I do to the letter dated 10 November 2014.  I do not consider that any weight which I might give to this letter outweighs the problems which I have with Mr [H]’s own evidence as outlined above.  I do not accept that Mr [H] was involved in the ISO in Pakistan as he has claimed.  I consider that he has invented this claim and I consider that this also reflects adversely on his overall credibility.

    [1] DFAT Country Information Report No. 09/69, dated 11 August 2004, CX233569.

    85.    For the reasons give above I do not accept the reasons which Mr [H] has given for his decisions to return to [P] from [KI] in November 2010 or to leave Pakistan in June 2012.  I accept on the basis of the passport and National Identity Card which he produced to the Department that he is from [P] in the [KA] and I accept that he is from the [T] tribe and that he is a Shia Muslim.  I accept that he has been regularly attending an Islamic Centre in Sydney as confirmed by the letter he produced and that he has taken part in Ashura processions in Australia.  For the reasons given above, having regard to the fact that I consider that he believed that the bomb explosion in [KI] to which he referred in the statutory declaration accompanying his original application had taken place at [M] in 2010, not in 2009, I do not accept that he took part in that procession in [KI] and narrowly escaped being killed as he has claimed.  I consider that he has exaggerated the extent of his religious devotion.

    …

    92. I accept that, as Mr [H]’s representatives submitted, a lower threat does not mean no threat, but I accept the advice of the Australian Department of Foreign Affairs and Trade that there were only three recorded sectarian attacks in Punjab in 2012 and that in 2013 there were disturbances between the Sunni and Shia communities in Punjab triggered by attacks during [M] in Rawalpindi in November 2013 and the assassination of a leader of a Sunni militant group, the Ahl-e-Sunnat Wal Jammat.  I also give weight to the fact that, as reported by the Department, according to the Pakistan Institute of Peace Studies over 85 per cent of the recorded incidents of sectarian violence in Pakistan occurred in the [KA], [KI], [Q] and [G.]  Given the level at which sectarian attacks occur in the twin cities of [I] and [R] and given my finding above that Mr [H] has exaggerated the extent of his religious devotion, I consider that the risk to him in the context of sectarian attacks on Shia processions and mosques in [I] is remote.  I do not accept on the evidence before me that there is a real chance that he will be killed or injured or otherwise persecuted in the context of the sort of sectarian attacks which I accept continue to take place in Pakistan if he relocates to [I].  I likewise do not accept on the evidence before me that there is a real chance that he will be prevented from practising his religion as a Shia Muslim because of his fear of sectarian violence if he relocates to [I].

    …

    95. For the reasons given above I do not accept that Mr [H] was involved in the ISO in Pakistan as he has claimed, nor do I accept that there is a real chance that he will become involved in the ISO if he returns to Pakistan now or in the reasonably foreseeable future.  I do not accept that he has been involved in campaigning for the rights of Shia Muslims and to put an end to sectarian violence in the past, nor do I accept that there is a real chance that he will become involved in campaigning for the rights of Shia Muslims and to put an end to sectarian violence if he returns to Pakistan now or in the reasonably foreseeable future.  When I asked him at the hearing before me about his involvement in such activities he referred only to his involvement in religious observances and his participation in a procession at Youm-e-Quds (expressing solidarity with the Palestinian cause) in [P].  I do not accept, therefore, that there is a real chance that he will be targeted by the Taliban or other Sunni extremist groups if he returns to Pakistan because he will be involved in protesting and campaigning for the rights and safety of Shia Muslims in Pakistan.

    96. I accept that, as referred to by the Australian Department of Foreign Affairs and Trade, there have been targeted assassinations of doctors, lawyers, teachers and political or religious leaders in [KI], although, as the Department said, it can be difficult to determine conclusively the motives behind such attacks.  However I do not accept on the evidence before me that there is a real chance that Mr [H] will be targeted in this way if he relocates to [I].  He does not on the evidence before me fall within any of the categories of people who have been targeted and, as I put to him, the Department has said that many Shias have migrated and settled in [I] where they are comparatively safe.

    97. In their submission dated 7 November 2014 Mr [H]’s representatives referred to a number of decisions of the Tribunal (differently constituted) which mention that some members of the [T] tribe have been kidnapped for ransom from [I]/Rawalpindi and they quoted a media report from October 2013 suggesting that the law and order situation in [I] was deteriorating.  While I accept that some members of the [T] tribe have been kidnapped for ransom from [I]/Rawalpindi, the media reports quoted in the decisions to which Mr [H]’s representatives referred suggest that this criminal activity is carried out by people from [P] who know those who are wealthy and can afford to pay them ransom money.  Given Mr [H]’s evidence that his family is a really poor family, I do not accept that there is a real chance that he will be targeted for kidnapping for ransom by criminal gangs originating in [P] if he relocates to [I].

    98. In his statement made on 5 November 2014 Mr [H] said that he would be at much greater risk than ‘regular’ Shia Muslims in Pakistan because he belonged to the [T] tribe and he came from [P].  He said that it was well known that the [T] tribe had a long history of opposing Sunni extremists in their home area and that for this reason the members of the tribe were perceived as being strongly opposed to the Taliban wherever they lived.  While I accept that the [T] tribe is known to have opposed the Taliban in [P], there is nothing in the independent evidence to support Mr [H]’s claim that members of the [T] tribe are at greater risk than other Shia Muslims in the rest of Pakistan.  While I accept that, as he has said, he will be able to be identified as being from [P] on the basis of his accent and his National Identity Card, I do not accept that there is a real chance that he will be persecuted by the Taliban or other Sunni extremists because he belongs to the [T] tribe and he comes from [P] if he relocates to [I].

    99. In their submission dated 7 November 2014 Mr [H]’s representatives referred to evidence that Pashtuns were subject to racist stereotyping and they submitted on the basis of this evidence that Pashtuns were severely discriminated against outside the FATA.  However, as I put to Mr [H], the Australian Department of Foreign Affairs and Trade has said that in most cases there are options available for members of most ethnic and religious minorities to be able to relocate to areas of relative safety elsewhere in Pakistan.  It has said that large urban centres are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than other areas.  I accept that Mr [H] will be able to be identified as a Shia Muslim but, as I put to him, the Department has said that Shias are not at any economic disadvantage relative to other groups in Pakistan and that respected human rights groups in Pakistan have told it that they are not aware of any discrimination against Shias in government jobs, the police, the military or in the private sector.  Mr [H] has said that he will have to provide his National Identity Card to find accommodation but, as I put to him, the Department has said that it has not been able to obtain any information to confirm that Pashtun Shias experience particular difficulty in obtaining accommodation because of their religion in [I]. I do not accept on the evidence before me that there is a real chance that, if Mr [H] relocates to [I], he will face discrimination, because he is a Shia Muslim, a Pashtun Shia, a Pashtun Shia from the [T] tribe or a Pashtun Shia from the [T] tribe from [P], in relation to matters such as employment, accommodation or access to services that is so serious or so detrimental in its impact as to amount to persecution.

    100. In their submission dated 7 November 2014 Mr [H]’s representatives submitted that he also feared harm as a member of the particular social groups of ‘Returnees from a Western country’ and ‘Failed asylum seekers returning from a Western country’.  At the hearing before me Mr [H] said that if he went back and they came to know that he had come to Australia to seek safety but they had sent him back then obviously his life would be in even more danger.  As I put to him, the Australian Department of Foreign Affairs and Trade has advised that Western influence remains pervasive in many parts of Pakistan, particularly in large urban centres.  It has said that many Pakistanis have relatives living in Western countries, that those living abroad frequently return to Pakistan to visit relatives and that they are not at any increased risk because they have spent time in Western countries.  It has said that it has no evidence that individuals will be subject to discrimination or violence as a result of having spent time in Western countries.  In their submission dated 5 December 2014 Mr [H]’s representatives submitted that the Department did not say what ethnicity these people were, what branch of Islam they belonged to, whether they were asylum-seekers or whether they were wealthy.  However the claim which they made in their submission dated 7 November 2014 was that Mr [H] feared being persecuted for reasons of his membership of the particular social group of returnees from a Western country and it is in this context that the advice to which I referred is relevant.  As I put to Mr [H], I do not accept on the evidence before me that there is a real chance that he will be persecuted because he will be returning from a Western country or specifically from Australia if he returns to Pakistan now or in the reasonably foreseeable future.

    101. As I likewise put to Mr [H], the Australian Department of Foreign Affairs and Trade has also advised that failed asylum-seekers may be questioned on their return to Pakistan to determine if they are wanted for crimes in Pakistan but it has said that asylum-seekers like Mr [H] who left Pakistan on valid travel documents and who have therefore not committed immigration offences will be released soon after their arrival.  It has said that it has no information to indicate that returnees are punished on their return to Pakistan.  As I put to Mr [H], I do not accept that there is a real chance that he will be persecuted because he has left Pakistan and has applied for asylum in Australia if he returns to Pakistan now or in the reasonably foreseeable future.

    102. For the reasons given above I do not accept that, if Mr [H] returns to Pakistan now or in the reasonably foreseeable future and relocates to [I], there is a real chance that he will be persecuted for reasons of his race ([T]), his religion (Shia), his actual or imputed political opinion in support of the Pakistan authorities and the West and against the Taliban, other Sunni extremist groups and Sunni extremist sympathisers on account of his profile as a young male [T] Shia Muslim from the [KA] or his profile as a Shia from the [KA] who has lived in the West or specifically in Australia, or his membership of the following particular social groups: ‘The [T] tribe’, ‘[P] Shias’, ‘Young male Shi’a Muslims from [KA]’, ‘Shi’a [T] from FATA’, ‘Returnees from a Western country’ or ‘Failed asylum seekers returning from a Western country’.  I find that, if Mr [H] relocates to [I], there will be no appreciable risk of the occurrence of the persecution which he claims to fear if he returns to Pakistan.

    103.  It is also necessary to address whether it is reasonable, in the sense of practicable, for Mr [H] to relocate to [I].  Mr [H] and his representatives have referred to the fact that he has no family in [I] on whom he would be able to rely for support.  In their submission dated 5 December 2014 Mr [H]’s representatives submitted that the two reports of the Australian Department of Foreign Affairs and Trade confirmed that internal relocation would only be a viable option if the applicant had familial connections but the reports do not say this.  To the contrary, as I put to Mr [H], the Department’s advice is that in most cases there are options available for members of ethnic and religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan.  It has said that many large urban centres are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than other areas.

    …

    106. In their submission dated 5 December 2014 Mr [H]’s representatives submitted that he would have no viable employment opportunities in a city like [I].  They submitted that he had only completed one diploma in basic computer training but this ignores his evidence - which as referred to above I accept - that he has undertaken training as a technician working in fibre telecommunications.  Mr [H]’s representatives also submitted that he did not speak Punjabi, the main language spoken in Punjab, but, as Mr [H] himself said in his statement dated 5 November 2014, he speaks Urdu fluently, Urdu is the national language in Pakistan and most people in the bigger cities speak Urdu.  I accept that, as referred to by the Australian Department of Foreign Affairs and Trade, the cost of housing is comparatively higher in a city like [I].  However, while I accept that Mr [H] only completed up to Year 10 at school I accept that he then undertook a form of apprenticeship which qualified him to obtain employment as a technician in his particular field, working in fibre telecommunications.  I also consider his employment history in Australia is relevant in that it demonstrates that he is adaptable and resourceful and that he has been prepared to take up employment in fields where he had no prior experience or training.  I do not accept that the fact that Mr [H] will no longer be able to be supported by his father and will no longer be able to live on the produce of his family’s farm means that it is unreasonable for him to relocate to a city like [I].

    110. I accept that, as advised by the Australian Department of Foreign Affairs and Trade, there is a high level of generalised violence and widespread displacement of communities in the FATA and that Shias in [K] and in [P] in particular are at high risk of both generalised and targeted violence.  I accept, therefore, that Mr [H] may not be able to visit his family in [P] due to concerns for his personal safety.  However given that the main road between [P] and Peshawar is open I consider that Mr [H]’s family will be able to visit him if he relocates to [I].  I accept that, as mentioned by Mr [H] and as referred to in the most recent of the media reports quoted by Mr [H]’s representatives in their submission dated 5 December 2014, there was a bombing of a coach which was waiting in Peshawar to carry passengers to [P] at the beginning of October 2014.  However as Mr [H] himself said, these sorts of incidents do not happen often and I consider on the evidence before me that the risk to travellers on the road between [P] and Peshawar is remote.  I do not accept, therefore, that the fact that Mr [H]’s family remains in [P] means that it is not reasonable for him to relocate to [I].

    111. For the reasons given above I consider that it is reasonable, in the sense of practicable, having regard to all of Mr [H]’s circumstances, for him to relocate to [I] where, as I have found above, there is, objectively, no appreciable risk of the occurrence of the persecution which he fears.  I have considered the totality of Mr [H]’s circumstances as a young male Pashtun Shia Muslim from [P] in the [KA] who belongs to the [T] tribe, who has left Pakistan to seek asylum and who will be returning to Pakistan as a failed asylum-seeker, having spent time in a Western country, namely Australia.  However, even taking into account the cumulative effect of these circumstances, I do not accept that there is a real chance that Mr [H] will be persecuted for one or more of the five Convention reasons if he returns to Pakistan.  I do not accept on the evidence before me that Mr [H] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.

1. The Tribunal then turned to the issue of complementary protection and relevantly found:

   112. Having regard to my findings of fact above, I do not accept that Mr [H] was involved in the ISO in Pakistan as he has claimed. I do not accept that he is telling the truth about having narrowly escaped being killed in the [M] procession in [KI] in 2009 or about having been looking after his brother’s shop in [P] at the time of a bomb blast in 2012 but having luckily escaped unhurt when his brother’s shop was destroyed. For the reasons given above I consider that it would be reasonable, having regard to all of Mr [H]’s circumstances, for him to relocate to [I]. Having regard to the advice provided by the Australian Department of Foreign Affairs and Trade referred to in paragraph 99 above, I do not accept that there is a real risk that Mr [H] will face discrimination amounting to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act because he is a Shia Muslim, a Pashtun Shia, a Pashtun Shia from the [T] tribe or a Pashtun Shia from the [T] tribe from [P] in the [KA].

   113. Having regard to my findings of fact above, I do not accept on the evidence before me that, if Mr [H] relocates to [I], there is a real risk that he will suffer significant harm because he is a young male Pashtun Shia Muslim from [P] in the [KA] who belongs to the [T] tribe, who has left Pakistan to seek asylum and who will be returning to Pakistan as a failed asylum-seeker, having spent time in a Western country, namely Australia or because of any political opinion which he may hold or which may be imputed to him or because of his membership of any of the particular social groups which he and his representatives have suggested based on these circumstances. I am satisfied that there would not be a real risk that Mr [H] will suffer significant harm as defined in subsection 36(2A) of the Migration Act if he relocates to [I]. I therefore find that there is taken not to be a real risk that he will suffer significant harm in Pakistan in accordance with paragraph 36(2B)(a) of the Migration Act.

   114. For the reasons given above I am not satisfied that Mr [H] is a person in respect of whom Australia has protection obligations. Therefore Mr [H] does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, Mr [H] does not satisfy the criterion in subsection 36(2) for a protection visa.

2. I am clearly satisfied there was no jurisdictional error by the Tribunal and that the proceedings are doomed to failure.  I am clearly satisfied proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015