AAY15 v Minister for Immigration and Anor
[2017] FCCA 476
•16 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAY15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 476 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal failed to deal with a claim expressly made or clearly arising in the circumstances – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 |
| Applicant: | AAY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 464 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 February 2017 |
| Date of Last Submission: | 7 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales | |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz | |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue to quash the decision of the second respondent dated 12 September 2014.
A writ in the nature of mandamus issue directing the second respondent to reconsider and determine the matter according to law.
The first respondent pay the applicant’s costs set in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 464 of 2015
| AAY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 26 February 2015, and amended on 4 December 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 28 January 2015 which affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB”, “RE1”).
Background
The relevant background is as follows. The applicant is a national of Pakistan. He arrived in Australia without authority, by boat, in August 2012 (CB 39). Following the Minister’s relevant determination, the applicant applied for a protection visa on 6 March 2013 (CB 24 to CB 25). He was assisted by a registered migration agent.
The applicant claimed to have come from a village in the Federally Administered Tribal Areas of Pakistan (“the Kurram Agency”). He said he was of Pashtun ethnicity, a member of the Turi tribe, and a Shia Muslim. The applicant claimed to fear harm from the Taliban because of his religion, race (ethnicity) and his actual, or perceived, opposition to the Taliban.
The Minister’s delegate refused the application on 6 January 2014 (CB 100 to CB 125). The delegate found that the applicant would face a real chance of serious harm if he were to return to the Kurram Agency. However, the delegate found that he could safely and reasonably relocate in Pakistan to such locations as Islamabad or Rawalpindi.
The applicant applied for review to the Tribunal on 16 January 2014 (CB 126 to CB 132). He was again represented by a registered migration agent. The applicant attended a hearing before the Tribunal where he gave evidence. His representative made various written submissions (see CB 152 to CB 190 and CB 256 to CB 276).
The Tribunal made a number of adverse findings in relation to aspects of the applicant’s claims. In essence, the Tribunal found that he had been “forced” into making a number of claims after his original claims were “exposed” as inconsistent with other evidence he had given (see for example [72] – [73] at CB 311).
The Tribunal also found that another claim made by the applicant, as to having been involved with a particular student organisation, was an “invent[ion]” which reflected “adversely on his overall credibility” ([84] at CB 314).
The Tribunal also found the applicant’s “willingness to produce bogus documents to the [Minister’s] Department and the Tribunal, also reflect[ed] adversely on his credibility” ([80] at CB 313). Further, the Tribunal found that he had not been traumatised by past events in Pakistan as he had claimed, because it found he was not telling the truth about these events ([104] at CB 321).
The Tribunal did find that the applicant was a Shia Muslim of the Turi tribe from the Kurram Agency ([85] at CB 315). The Tribunal accepted that he had completed training as an optical network technician and that there was no work for someone with those skills in his local area. In this regard, the Tribunal considered that he had always intended to live in a large city in Pakistan, rather than stay in the Kurram Agency where there was no call for his skills ([86] at CB 316).
The Tribunal then considered the reasonableness of relocation to a large city in Pakistan. It found that while there had been violence in Islamabad and Rawalpindi, the level of risk to the applicant was the same as other inhabitants of those cities. It did not accept that the risk of general violence made it unreasonable for the applicant to relocate. It affirmed the delegate’s decision on that basis.
The Application to the Court
The amended application contains one ground in the following terms:
“1. The Tribunal decision was affected by jurisdictional error in that it misunderstood and therefore failed to consider, a claim or claims that clearly arose on the evidence and material before it.
Particulars
(a) The claim that arose on the material at Court Book page
173-4 that the applicant as a member of the Turi tribe;
(i) faced kidnapping because of a perception that members of that tribe were wealthy and,
(ii) faced being murdered if the ransom demanded by the potential kidnappers was not paid.”
The applicant’s ground directs attention to a part of one set of the written submissions made to the Tribunal on his behalf by his representative, and dated 7 November 2014. The particulars to the ground refer to that part of the representative’s submissions reproduced at CB 173 to CB 174, and in particular, to that part of the submissions reproduced at CB 173.
In oral submissions to the Court, the applicant asserted, through his representative, that he put forward a claim that members of the Turi community were subject to kidnapping and extortion in Islamabad and Rawalpindi, because of the perception that members of the Turi tribe were wealthy, and that if they could not pay a ransom they would be killed.
The applicant relies on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No 2)”) at [63], to submit that jurisdictional error is revealed where the Tribunal does not address a claim to fear harm that is expressly made or clearly arising from what is presented:
“It is plain enough, in light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fear of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.”
The applicant’s case now, is that his written submissions to the Tribunal at CB 173 to CB 174, and in particular the extract reproduced at [18] below, raised a distinct and separate claim as to why members of the Turi tribe may face serious harm in Rawalpindi/Islamabad, the area that the Tribunal considered in the context of relocation.
The argument is that the Tribunal understood the applicant’s claim to be that the kidnappers target people whom they “know” to be wealthy, and can afford to pay ransom. It found, that as the applicant’s family is poor, he would not face the requisite level of risk of harm. The complaint now is that the claim expressly made before the Tribunal, was that Turis may be targeted for kidnapping due to the general perception that they are wealthy, and that those Turis who cannot pay the ransom are killed.
The relevant part of the applicant’s representative’s submissions to the Tribunal is as follows (at CB 173):
“We refer to a few RRT decisions where the Tribunal found that a Turi Shi’a from Kurram Agency could not relocate to Islamabad or Rawalpindi safely:
40. Two reports published by Dawn in December 2011 indicate that members of the Turi community in the Islamabad-Rawalpindi conurbation are targets of a kidnapping-campaign. While a Dawn editorial mentions the kidnapping campaign in passing, a second Dawn report provides greater detail, stating that ‘several other residents of [town], particularly members of the Turi tribe, have been kidnapped from Rawalpindi-Islamabad. Many of them were taken away from their houses in Rawalpindi’. A number of case details are provided in the report and it concludes by quoting Mohammad Akbar who argues that Turis are targeted due to a perception that they are wealthy and have the capacity to pay ransom: ‘[t]hey (local militants) know about the financial positions of Turi tribe and kidnap those who can pay them the ransom money. Poor people kidnapped for ransom are killed as they cannot pay the money’.
[See also other “extracts” reproduced at CB 174.]
The Tribunal’s relevant reasoning is at [97] (at CB 318):
“In their submission dated 7 November 2014 [the applicant’s] representatives referred to a number of decisions of the Tribunal (differently constituted) which mention that some members of the Turi tribe have been kidnapped for ransom from Islamabad/Rawalpindi and they quoted a media report from October 2013 suggesting that the law and order situation in Islamabad was deteriorating. While I accept that some members of the Turi tribe have been kidnapped for ransom from Islamabad/Rawalpindi, the media reports quoted in the decisions to which [the applicant’s] representatives referred suggest that this criminal activity is carried out by people from Parachinar who know those who are wealthy and can afford to pay them ransom money. Given [the applicant’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 Parachinar if he relocates to Islamabad.”
Two things may immediately be said. First, the applicant’s submissions to the Tribunal state that they rely on “findings” made by other Tribunal members in other cases. That is made plain with the words “[w]e refer to a few RRT decisions where the Tribunal found…” [Emphasis added] (at CB 173.5). It is trite to say that the Tribunal member in the current case is not bound by findings made by other Tribunal members in other cases. There are no principles of comity that bind Tribunal members, although a consistency of approach is desirable.
Second, despite what is said in the applicant’s submission to the Tribunal, what is extracted in those submissions from the “other” Tribunal’s decision (see [18] above), is, on any plain reading, a presentation of available country information taken from a publication “Dawn”, and not “findings” by any Tribunal member.
The last two sentences quoted from “Dawn”, and as set out at [18] above, are at least unclear, if not contradictory, when read in isolation. The penultimate sentence states that the kidnappers “know” who is wealthy in the Turi tribe, and kidnap those who can pay money. The last sentence states that the poor kidnapped for ransom who cannot pay, are killed.
This raises the question that if the kidnappers “know” who the wealthy Turis are, and who can pay, then why would they kidnap Turis who are not wealthy and cannot pay the ransom.
The Minister’s position was that the applicant’s argument failed for two reasons. One, that the applicant had not established that the purported claim was raised by the evidence such that the issue could have been dispositive of the review. Two, the Tribunal, in any event, gave proper consideration to the claims as they arose from the material before the Tribunal.
I understood the Minister’s reading of what is set out at [18] above, to be that the extract states that the kidnapper’s targets include “other residents of the [town]”, the words “particularly members of the Turi tribe”, allow that not all the targets are Turis (CB 173.6). In that context, the kidnappers target Turis whom they “know” are wealthy (the penultimate sentence) and “other residents” (as in people who are not Turis) who are not wealthy and are poor, are killed (the last sentence).
The Minister argued that the applicant has not established that the purported claim was raised on the evidence as necessarily in light of NABE (No 2) at [63] (see above at [15]).
In this context, the Minister also sought to further explain what is set out at [63] in NABE (No 2) with reference to what the Full Federal Court also said at [55] in that case, citing Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”):
“Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘… a substantial clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):
‘…the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is
well-founded, and if it is, whether it is for a Convention reason.’
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions – namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the applicant’s membership of the group of ‘businessmen in Russia’ was a reason for his persecution.”
The phrase “established facts” as it appears in NABE (No 2) (at [55]) and Dranichnikov (at [24]) has been the subject of consideration in Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 (“SZSWB”) which, as the Minister submits, made clear that this “directed attention to the claim made by the visa applicant” (SZSWB at [31]).
Relevant to the disposition of the current case, the Full Federal Court in SZSWB at [33], further stated that “the claim must emerge clearly from the materials” (citing NABE (No 2)) or “[p]ut another way, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made”.
I note also the Minister’s reference to SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2014) 241 FCR 214 per Markovic J at [26]:
“In any event, the appellant submits that the primary judge was not correct in finding at [37] of his judgment that the appellant’s claim based upon being a war widow was not based upon ‘established facts’. A Full Court of this Court in SZSWB has interpreted the reference in Dranichnikov to a claim relying on ‘established facts’ as a reference to the ‘factual predicates’ to the making of a claim (at [5]) or the ‘asserted or established facts on which to found the claim’ (at [43]). In SZSWB, the appellant argued that the tribunal failed to consider a claim that, if returned to Iran, he would be targeted by a rival cigarette seller. However, he had not established that he intended to sell cigarettes in the future. In the present case, the only factual predicates to the making of the appellant’s claim were that she was a woman and a widow from the north of the Sri Lanka, which were all facts which were accepted by the Tribunal.”
The following explanation of the presentation of the arguments, by both the applicant and the Minister before the Court is necessary.
The Minister’s submissions, both written and oral, focused essentially on the proposition that the applicant’s “case” was based on what was set out in the applicant’s representative’s submissions to the Tribunal (as reproduced at [18] above). That is, the Minister understood the applicant’s case before the Court, to be that this was an express claim made by the applicant to fear harm because Turis were perceived to be wealthy, that he would be targeted for kidnapping and ransom because of this perception by the Taliban and extremists, and he would be killed when he could not pay the ransom.
It is understandable, given the drafting of the applicant’s ground before the Court and his written submissions to the Court, that the Minister understood the applicant’s argument to be that the express claim arose specifically from what is extracted at [18] above. The Minister’s reading of that material appears, in my view, to be reasonable.
If that were the extent of the applicant’s argument, I would have agreed with the Minister that the purported claim was not expressly made or clearly arising in the manner asserted now by the applicant before the Court. The applicant’s representative’s submissions to the Tribunal (reproduced at CB 173 to CB 174) simply referred to “other” Tribunal decisions. What is set out at CB 173 and reproduced at [18] above, was simply another Tribunal member, in another case, setting out some country information. There is no express statement from the applicant’s representative, or for that matter, from the applicant himself, to explain this general reference to country information in this, or the other, Tribunal decisions.
Such a mere reference without further explanation, analysis or exposition cannot be said to meet the requirements set out in the authorities. In my view, on its face, the Tribunal addressed and considered exactly what was put by the applicant in this part of his submissions as best as this could be reasonably understood.
This is not a case where the Tribunal ignored that part of the applicant’s submissions, or even only made some passing or general reference to them. In this case, the Tribunal made specific reference to the applicant’s representative’s submissions as reproduced at CB 173 to CB 174.
At [97] (at CB 318), the Tribunal made specific reference to the applicant’s representative’s references to “other” Tribunal decisions. In my view, it was reasonably open to the Tribunal to understand that what was being advanced, at this part of the submissions, albeit by way of unexplained and opaque general reference to country information in other Tribunal decisions, was that some members of the Turi tribe have been kidnapped for ransom in Islamabad and Rawalpindi. The Tribunal accepted this.
It also considered what was further quoted in the media reports that the kidnappers “know” who is wealthy, in context, in the Turi community. In this light, it was reasonably open to the Tribunal to find that, as on the applicant’s own evidence his family was “really poor”, there was not a real chance he would be targeted for ransom. As the Minister submits, the Tribunal was entitled to construe the applicant’s representative’s submissions in the way that it did.
Before the Court, the applicant’s primary position was that the claim, now identified, was expressly made in the extract identified at [18] above. That is, it mirrored the written submissions.
I do not agree with that submission. What the applicant’s representative adopted from the “other” Tribunal decision, and as extracted at [18] above, is not clear. Even at best it is internally inconsistent. Mohammad Akbar, who is quoted in the extract, appears to have been confused as to whether all Turis are targeted because of the “perception” of wealth, or that the local militants who “know about the financial positions of [the] Turi tribe”, and kidnap those Turis whom they “know” to be wealthy.
What the “other” Tribunal member made of this inconsistency is not known, because the decision of that Tribunal member is not in evidence before the Court. It may be that in subsequent parts of that decision record the “other” Tribunal member explained this lack of clarity in the country information.
It must be said that this highlights the difficulty for the current Tribunal member who was confronted by selective, and it must be said, random, quotes from other Tribunal decisions. Submissions to the Tribunal from registered migration agents who are also solicitors, should illuminate, not confuse the issues. Unfortunately, I can take judicial note of a large number of cases of this type before the Court, where the approach of such migration agents before the Tribunal is to assume that the weight or substance of a submission is measured by its volume.
In oral submissions, the applicant also advanced a more nuanced argument. That is, that even if it could not be said that the claim was expressly made, or clearly arose, from the extract (see [18] above), then when that was read contextually with the entirety of the applicant’s representative’s written submissions and the applicant’s claims, then the claim which the applicant’s ground now identified, can be said to have been clearly arising from all the circumstances presented.
It must be said that before the Court, the Minister appeared not to have grasped that nuance in the applicant’s argument. This is because even after the applicant’s oral submissions had closed, the Minister’s reply was that what is set out at CB 173 (that is, the part of the written submissions extracted above at [18]), was the only reference that was “actually made in the context of criminal gangs kidnapping members of the Turi tribe whom they perceive to be wealthy.”
The Minister’s argument before the Court was that “nowhere in the context of these submissions” (what is extracted in the applicant’s representative’s submissions and reproduced at CB 173 to CB 174) were the references in the “other” Tribunal decisions “tied” to the “particular claims and circumstances of the applicant”.
I do not agree with that submission. In his Statutory Declaration which accompanied his application for the protection visa, amongst other matters, the applicant expressly stated that he was a member of the Turi tribe and a Shia Muslim ([1] at CB 53). The Taliban targeted, and amongst other things, kidnapped Shias ([8] - [12] at CB 54). He could not go anywhere in Pakistan to escape this threat ([14] at CB 55).
In his interview with the Minster’s delegate, the delegate reports that the applicant stated he was a Turi, and that “[c]ountry information asserts that Turi are almost exclusively Shia Muslims” (CB 109.3). The delegate further reported that the applicant stated, as a Shia, he would be targeted for kidnapping by Sunni’s, in context, Sunni extremists (CB 115.4).
Further, the delegate relevantly reported (at CB 117.7):
“In December 2011 Dawn News Group reported that several Shia from Kurram Agency has been kidnapped for ransom in Islamabad and Rawalpindi after relocating there. One of the targets, who managed to escape, guessed that the culprits were from Parachinar based on their Pashto accents.”
In that context, in the same submissions which contained the passage extracted at [18] above, the applicant’s representative submitted to the Tribunal an “outline” of his case to fear harm (CB 152). That “outline” included references to the applicant being a member of the Turi tribe, of Shia faith, who feared harm at the hands of the Taliban. Amongst the reasons that he feared persecution were that he would be the subject, from the Taliban, of “abduction”, “extortion” and “possibly death” (CB 152.6).
In the same submissions, the applicant’s representative referred to another Tribunal decision, where the Tribunal in that case actually found that Turi tribe members are targeted for kidnapping in Rawalpindi for reasons including “because of their money” (CB 174.8).
In a statement submitted to the Tribunal by the applicant dated 5 November 2014, the applicant stated, amongst other things, that he came from “a poor family” ([35] at CB 197). This was a fact accepted by the Tribunal ([97] at CB 318).
In all therefore, the entirety of the applicant’s circumstances as presented, included the claim that he was a member of the Turi tribe and of Shia religion from a poor family who, if he were to relocate to Islamabad or Rawalpindi, would be targeted by the Taliban for kidnapping and extortion because he would be perceived to be wealthy.
I do not agree with the applicant that what is set out at CB 173 (see [18] above) in his representative’s submissions, of itself, and in its terms, is a clear express claim to fear harm as he now proposes. On its own, what is referred to there is unclear and seemingly internally inconsistent (see above at [40] – [41]).
However, when that extract is considered in the totality of what the applicant (and his representative on his behalf), had claimed and submitted, it is given relevant meaning such that I find that the claim which the applicant now says was not considered by the Tribunal did clearly arise from the circumstances presented.
It would appear that the Tribunal read that extract as being that only wealthy Turis are kidnapped for extortion because the Taliban “know” who, amongst the Turis, are wealthy. As the applicant’s counsel submitted before the Court, that reading, in context, leaves unexplained the last sentence that “[p]oor people kidnapped for ransom are killed as they cannot pay the money” (CB 173.7).
The totality of the claim made by the applicant was one of “perception” by the Taliban of Turis as a group, not that they actually “knew” of the individuals amongst the Turis who are wealthy. The Tribunal gave the latter meaning to the extract at CB 173.
However, as set out above, and as the applicant’s counsel, correctly in my view, submitted before the Court, that raises the obvious difficulty as to why the extract then says in the last sentence that the poor (in context poor Turis) are killed when they cannot pay. With respect to the Tribunal, its reading is not reasonably available. In essence, the Tribunal has failed to appreciate the distinction between the claimed perception by the Taliban and the actual knowledge of the Taliban.
This is clear when the entirety of the applicant’s circumstances are considered. In all therefore, what can be said is that the applicant’s claim, clearly arising from the circumstances presented, was that he was a Turi from a poor family. If he went to Rawalpindi or Islamabad, he would be perceived to be wealthy because the Taliban perceived Turi’s to be wealthy. Given that he was not wealthy and came from a poor family, there was a real risk he would be killed by the Taliban in the circumstances.
The Tribunal did not address this claim. That reveals jurisdictional error. In the circumstances it is appropriate to grant the relief the applicant seeks. I will make the appropriate orders.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 16 March 2017
Corrections
From paragraph 19, the name of the applicant has been removed from the excerpt of the Tribunal’s decision pursuant to s.91X of the Migration Act 1958 (Cth).
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