AOX16 v Minister for Immigration
[2019] FCCA 132
•25 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOX16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 132 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it considered the applicant’s claims by reference only to the immediate future and not also the reasonably foreseeable future, made incorrect findings of fact, failed to consider a particular social group of which the applicant had not claimed membership, and failed to consider a claim not made. |
| Legislation: Migration Act 1958, ss.36, 91R, 424AA, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | AOX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 127 of 2016 |
| Judgment of: | Judge Cameron |
| Hearing date: | 27 March 2017 |
| Date of Last Submission: | 27 March 2017 |
| Delivered at: | Sydney by telephone to Perth |
| Delivered on: | 25 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Crowley |
| Solicitors for the Applicant: | Craig McKie Lawyer Pty Ltd |
| Counsel for the First Respondent: | Mr P. R Macliver |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 127 of 2016
| AOX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan who arrived in Australia on 20 March 2012. On 10 June 2013 he lodged an application for a protection visa with what is now the Department of Home Affairs, alleging that he feared persecution in Pakistan because of his religious beliefs and political opinion. On 4 September 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection. As summarised by the Tribunal, in his protection visa application the applicant relevantly claimed that he had been targeted by extremists in Pakistan because he is a Shi’a Muslim. The applicant claimed that he had been attacked by extremists many times and had sustained injuries during a bomb blast. He also claimed that he had been threatened by a well-known terrorist, Mr X, who was associated with an organisation known as Lashkar I Jhangvi (“LeJ”).
In support of his application the applicant provided:
a)a US State Department sheet dated 6 February 2014 stating that Mr X was a terrorist who had been arrested by Pakistani police in February 2013;
b)a handwritten letter dated 22 December 2011 from a police station in the applicant’s home area stating that the applicant had submitted a protection application against Mr X due to threats he had received from Mr X’s organisation;
c)numerous articles about attacks on Shi’as by extremist organisations in Pakistan and Afghanistan;
d)undated letters signed by the applicant petitioning the Pakistani government, judiciary and media on behalf of Shi’as; and
e)a letter dated 12 February 2013 from the Central Secretary Information of Tehreek-e-Nifaz-e-Fiqah-e-Jafariya (“TNFJ”), a pro-Shi’a organisation stating that the applicant was a Shi’a who was an active member of the organisation. The letter stated that the applicant’s life was under threat from terrorist activities targeted towards Shi’as.
At a Tribunal hearing on 15 October 2015 the applicant made the following additional claims:
a)as a Shi’a he was at risk of harm from Sipah-e-Sahaba Pakistan (“SSP”), a pro-Taliban and anti-Shi’ite militant group. He was also at risk of harm from LeJ and other extremist Sunni groups. These groups had nominated him to be killed;
b)all of his family members were Shi’a Muslims but not all of them practised their religion. Although they were Shi’as, some of his maternal relatives had joined SSP for their own safety;
c)he started speaking out against militant groups while in high school. In 2003, while still in high school, he joined the Imamia Student Organisation (“ISO”), the student wing of TNFJ. He made speeches, contacted mullahs and organised community meetings. The militant organisations saw that he was speaking out against them and so they tried to assassinate him;
d)after completing high school in 2006, he moved from his home area to Rawalpindi and in 2007 or 2008 he joined TNFJ. His main role was to act as a co-ordinator between the community, TNFJ and religious scholars. He organised religious scholars to speak to members of the community;
e)in 2007 he was threatened by members of the militant organisations and he made a report to the police in Rawalpindi. In 2009 he also made a civil application in his home area against the militant groups and it was referred to the police;
f)in 2004 an SSP suicide bomber detonated a bomb outside a Shi’a mosque he was visiting. In 2009 there was another bomb blast while he was at a religious seminar. The attacks were targeted at Shi’as and not him specifically. He later said that he was the target;
g)one night in 2009 while he was on his way home from the mosque he was threatened by a man with a knife. The man threatened to kill him and told him to stop attending the mosque. The man also injured him;
h)in 2010 Mr X called him and threatened him. Mr X also called his mother and sent her a letter threatening to harm him. When the Tribunal put to the applicant that information indicated that Mr X had been in gaol until December 2014, he said that Mr X must have had someone else call him. He said that even though Mr X died in July 2015, the organisation he had been associated with, LeJ, was still in operation;
i)from 2005 to 2011 he worked irregularly as a volunteer for a number of agencies. He had also worked as a salesperson from 2009 to 2011 but his employment was terminated after the SSP called his employer and threatened him for hiring a Shi’a;
j)in July 2014 his family home was destroyed by militants while his family was away. They did it because they did not want him to return to his home;
k)he had delayed leaving Pakistan because from 2007 to 2009 he had been taking care of his ill grandfather. After his grandfather died in 2009 he started applying for visas to travel abroad;
l)after his arrival in Australia his lawyer advised him to seek protection after his student visa expired. At the time he held a visa and felt safe in Australia and so had delayed seeking protection; and
m)he would not be safe if he returned to Pakistan. The militant groups in his area would know of his return and would think that he had returned to speak out against them. The militant organisations also had large communication networks and would find him anywhere. His relatives who were SSP members would also know about his whereabouts.
At its hearing the Tribunal put certain information to the applicant pursuant to s.424AA of the Act, including the fact that the dates in his student visa application relating to his studies, employment and volunteering activities were different from those he had provided to the Tribunal. The applicant stated that this was because at the time he lodged his student visa application, his lawyer made adjustments to the timeline so there would be no gaps in his employment.
The applicant also advised the Tribunal that the delegate had commented on his lack of knowledge about TNFJ and so after he read the delegate’s decision he found out further information about SSP, LeJ, ISO and TNFJ.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.
The Tribunal did not accept that the applicant had been targeted or nominated by the SSP, LeJ or any other Sunni extremist group for harm. It did not accept that the applicant had ever been harmed or threatened by the SSP, LeJ, any Sunni extremist groups or by any person associated with those groups. The Tribunal also did not accept that the applicant had a profile which would warrant him being targeted by Sunni extremist groups. In this regard:
a)based on country information indicating that student unions predominantly existed in universities and colleges, the Tribunal did not accept that the applicant was involved with the ISO while he was at high school. While it accepted that it was possible that he had become involved with the ISO when he completed a construction course after high school, it did not accept that he had developed a profile above others which caused him to be targeted by Sunni extremist groups. The Tribunal also did not accept that the applicant was involved with TNFJ while living in his home area before moving to Rawalpindi. It noted in that regard that the applicant would still have been in school at that stage and that his evidence about when he joined the organisation was inconsistent;
b)the Tribunal noted that the applicant’s evidence concerning his activities while in Rawalpindi was inconsistent and it did not accept his explanation that his migration agent had adjusted the dates in his student visa application so there would be no gaps between his studies and employment, noting that there remained inconsistencies between dates in his protection visa application and dates in his evidence at the Tribunal hearing;
c)the Tribunal noted that while the applicant demonstrated basic knowledge of TNFJ at its hearing, his evidence in this regard was rehearsed and scripted. It was therefore not satisfied that the applicant had obtained that knowledge from his involvement with the organisation and found that he had obtained it after reading the delegate’s decision because of a desire to improve his performance at the Tribunal hearing;
d)the Tribunal noted that the applicant’s evidence about his role in TNFJ indicated that he had arranged speaking engagements for scholars rather than speaking out himself and that the only time he had spoken out was when a comment he made in school was misinterpreted as being against Sunnis. The Tribunal did not accept that that indicated that he had spoken out against Sunni militant organisations or Sunni Muslims. The Tribunal also did not accept that the applicant’s role in TNFJ could be considered to have built up the organisation and it did not accept that he had been targeted because he undertook his role with passion;
e)the Tribunal did not accept that the applicant’s attack at knifepoint in 2009 was anything more than a random attack. It found that if the applicant had been genuinely targeted as he claimed, he would have suffered greater harm than a simple cut, especially as he claimed that Sunni extremist groups had marked him for death. The Tribunal accepted that the applicant had been in attendance “at mosque” when it was attacked but found that those attacks had also been random;
f)the Tribunal noted that the applicant had provided little detail about the threats he claimed to have received in 2007 and which led him to make a report to the police. It found that if Sunni extremist groups had targeted the applicant for harm, they would have done more than just threaten him in 2007. The Tribunal also noted that the applicant claimed to have made a civil application in 2009 which was referred to the police in his home area but he was living in Rawalpindi then and had been since 2006. It found that if the Sunni extremists groups had wished to target the applicant, they had had the opportunity and the means to do so on a number of occasions;
g)the Tribunal did not accept that the applicant or his mother had been personally contacted by Mr X. It noted that the applicant’s evidence in this regard was inconsistent in that he claimed that Mr X had personally contacted him and his mother but then said it was someone else from Mr X’s organisation who had done so. The Tribunal did not accept that the applicant had a profile which would cause him to be of interest to any Sunni organisation such that Mr X would have been interested in contacting and threatening him personally. It found that the applicant had raised that claim for the specific purpose of enhancing his protection claims;
h)the Tribunal noted that although the applicant claimed that he had been unable to leave Pakistan because he had been caring for his grandfather from 2007 to 2009, he had remained in Pakistan for two years after his grandfather’s death in 2009. It noted that the applicant lived at his family home and did not claim that Sunni extremists had come looking for him or had attempted to harm him during that time. It found that the applicant’s delay in leaving Pakistan undermined the credibility of his claim to fear harm there. The Tribunal further noted that the applicant did not lodge his protection visa until just before his student visa expired, over twelve months after his arrival in Australia, and considered that that delay also undermined the credibility of his claim to fear harm;
i)the Tribunal did not accept the applicant’s claim that members of his family had joined SSP and that he would therefore be found through family networks. It noted that the applicant claimed that all his family members were Shi’a Muslims, although not all of them were practising, whereas SSP was a pro-Taliban, anti-Shi’a militant group which had massacred Shi’a Muslims and had targeted prominent members of the Shi’a community. The Tribunal did not accept as plausible that Shi’a Muslims, even those who were non-practising and even for their own safety, would join an organisation which targeted Shi’a Muslims;
j)as the Tribunal found that the applicant was not of interest to the SSP, LeJ or any other Sunni extremists groups, it did not accept that his family home had been destroyed by Sunni militants. It noted that there was ongoing conflict in the applicant’s home area and that it was more likely that his home had been destroyed as a result of that conflict rather than because it was specifically targeted; and
k)the Tribunal also did not accept that the applicant was dismissed by his employer because Sunni militant organisations had contacted his employer threatening to harm him if he continued to employ the applicant because he was a Shi’a Muslim.
The Tribunal found that the applicant did not face a real chance of persecution in the reasonably foreseeable future because of his Shi’a religion and did not accept that there was a real risk that he would suffer significant harm because of his Shi’a religion. The Tribunal accepted that if the applicant returned to Pakistan he would attend Shi’a mosques and religious gatherings. Having referred to country information about the situation of Shi’as in Pakistan, the Tribunal was satisfied that Shi’a Muslims could and did openly practise their faith in Pakistan and that their right to do so was enshrined in the country’s constitution and law. The Tribunal also did not accept that the applicant would have to modify his religious practices or that his involvement with a Shi’a organisation would result in him facing harm on his return to Pakistan. Taking into account the size of the Shi’a community, the low number of attacks and violence against Shi’as and evidence indicating that in many areas Shi’as and Sunnis lived together without significant issues, the Tribunal was satisfied that the chance that the applicant would suffer serious harm because of his religion was remote. It also found that the chance that the applicant would be the victim of criminal or political violence was remote.
Proceedings in this Court
In his amended application the applicant alleged:
The decision of the Administrative Appeals Tribunal (AAT) was vitiated by jurisdictional error in that the AAT:
1.Did not substantively address the prospects of persecution in the reasonably foreseeable future as distinct from the present or immediate future, thereby constructively failing to exercise jurisdiction by not engaging with an aspect of the Applicant’s claim for protection, alternatively;
2.Misapplied the ‘real chance’ test by not considering the possibility that its primary findings of fact and inferences it drew, and its failure to find other facts, may be open to doubt or might distort its reasoning in assessing the likelihood of future persecution;
3Did not consider the Applicant’s membership of the narrower ‘particular social group’ of ‘religiously observant Shi’a in North-West Pakistan who were members of both the TNFJ and ISO organisations’, but, having found that the Applicant did not have a ‘high profile’ as a TNFJ or ISO member with Sunni extremists as claimed, considered the Applicant as a member of the religious group of Shi’a in Pakistan;
4.Reasoned in a manner which was irrational or illogical, or manifestly unreasonable as being without an intelligible justification, in summarising that the Applicant ‘has not … previously been harmed’ where the AAT accepted that the Applicant was at a Shi’a mosque when it was bombed, while making no finding on the Applicant’s claim that he sustained actual injuries in a bomb blast.
Ground 1
Applicant’s submissions
In support of his allegation that the Tribunal applied an incorrect test the applicant referred to MZYXR v Minister for Immigration & Citizenship (2013) 141 ALD 276 where North J held that an Independent Merits Reviewer had erred in law by not considering whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future as distinct from the present or immediate future. The applicant submitted that such a failure might be discernible or capable of being inferred from the structure and methodology of the reasons for decision.
The applicant submitted that although the Tribunal had concluded that the applicant did not have a well-founded fear of persecution for a Convention reason “now or in the reasonably foreseeable future”, it had not identified the material on which that finding was based and it was “difficult to reconcile the finding that the Appellant was both present at [at] least one mosque bombing [with the] finding that the Appellant has neither ‘previously been harmed [or] targeted’.” The applicant submitted that the Tribunal’s invocation of the correct test was simply formulaic.
It was argued that the Tribunal’s use of the present and present perfect tenses, while avoiding tenses expressing the future, was telling and pointed to the application of an inappropriate test. The following examples were cited:
9.1 Attacks on Shi’a ‘do occur in Pakistan’
9.2 There “is a high level of generalised violence in Pakistan”
9.3 Sunni and Shi’a mosques “are clearly distinguishable”
9.4The names of Shi’a mosques “can also identify them as Shi’a”
9.5The “visibility of Shi’as increases [sic] when they are engaged in religious festivals such as Muharram, and Ashura processions
9.6Militants “have conducted large-scale attacks on Shi’a mosques and religious processions and Shi’a enclaves”
9.7Paraphrasing the UNHCR, “members of the Shi’a community in urban centres may depending on their individual circumstances be in need of international refugee protection on account of their religion and/or (imputed) political opinion”
9.8But the UNHCR “did not say that all Shi’as in Pakistan are in need of international refugee protection”
9.9According to DFAT, “relative to other parts of Pakistan, Shi’as face lower threats of violence and there are areas in Punjab where Sunnis and Shia’s live together”
9.10According to DFAT, “there were relatively few major sectarian attacks in recent years”
(underlining in submissions)
The applicant also contended that the Tribunal omitted from its reasoning country information in its possession which he said described a trajectory of escalating violence against Shi’a in Pakistan including, relevantly, in Rawalpindi and that that omission would not have occurred if the Tribunal had “engaged fully with the question of the Applicant’s risk of persecution in the reasonably foreseeable future, as distinct from the present or immediate future” (emphasis included).
Discussion
In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 the plurality of the High Court said at 279:
… The Tribunal had expressed the following conclusion:
“Looking at the applicant’s claims overall, I am unable to find that there is a real chance that he would be persecuted for a Convention reason were he to return at this time or within the reasonably foreseeable future.”
On its face, this is the correct test. (reference omitted)
In Minister for Immigration & Citizenship v SZQKB (2012) 133 ALD 495, Yates J said:
The IMR was required to consider whether there was a real chance that the first respondent would be persecuted for a convention reason were he to return to Afghanistan at the present time or within the reasonably foreseeable future: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. … (at 503 [41])
Consequently, if the Tribunal did consider whether the applicant’s fear of persecution was well-founded in relation only to the immediate future, and did not also consider the reasonably foreseeable future, it would have erred.
It might be noted that such a consideration also required acceptance that the applicant’s claimed fear was well-founded at all. In that regard it is to be recalled, as the summary set out earlier in these reasons discloses, that the Tribunal did not accept many of the applicant’s central claims. In para.66 of its reasons it said:
The Tribunal does not accept that the applicant has been targeted or nominated by the SSP, LeJ or any other Sunni extremist group for harm. The Tribunal does not accept that the applicant has ever been harmed or threatened by the SSP, LeJ or any other Sunni extremist group. The Tribunal does not accept that any incident in 2004, 2007 or 2009 were incidents where the applicant was specifically targeted by any Sunni extremist group. The Tribunal does not accept that any letters from SSP, LeJ or any other Sunni extremist group have been sent to the applicant or his mother threatening him with harm. The Tribunal does not accept that the SSP, LeJ or any other Sunni extremist group have telephoned the applicant or his mother threatening him with harm. The Tribunal does not accept that [Mr X] or any person acting on his behalf has telephoned the applicant or his mother threatening him with harm. The Tribunal does not accept that [Mr X] has personally targeted the applicant for harm.
The Tribunal’s phraseology should be understood to imply an acceptance on its part that the 2004, 2007 and 2009 events occurred as does its express acceptance in para.70 of the decision record that:
… the applicant has been in attendance at mosque when it has been attacked and was attacked when returning home one night after attending mosque.
However, it also found in para.70 that those attacks were random vis à vis the applicant and that he was not targeted as a particular and specific individual, an unsurprising conclusion considering the findings expressed in para.66 of the decision record.
After those findings, all that remained of the applicant’s claims was the general situation of Shi’a Muslims in Pakistan, an issue which the Tribunal addressed in some detail. Relevantly, it said at paras.74 and 75 of its reasons:
The Tribunal accepts the evidence provided by the applicant showing some attacks against Shi’as in Pakistan as a whole, but the evidence indicates and DFAT reports that there were relatively few major sectarian attacks in recent years. The Tribunal does not accept that the applicant will have to modify his religious practices upon his return to Pakistan or that his involvement in a Shi’a organisation will result in a real chance that he will be harmed upon his return to Pakistan. As also stated above, the Tribunal has not accepted that the applicant has previously been harmed or targeted and finds that he has been educated and employed. Thus, taking into account the size of the Shi’a community, the low number of attacks and violence against Shi’as, as well as the evidence indicating that in many areas Shi’as and Sunnis generally live together without any significant issues, the Tribunal is satisfied that the chance that the applicant would suffer serious harm for reasons of his religion, as a result of generalised sectarian violence or a specific attack, is remote. The Tribunal also considers that the chance that the applicant would be the victim of criminal or political violence in Pakistan is also remote.
Therefore, based on the independent country information and his individual circumstances, the Tribunal finds that that [sic] the applicant does not face a real chance of persecution in the reasonably foreseeable future from the SSP, LeJ or any other Sunni extremist groups or any person associated with a Sunni extremist group, the state or anyone else because of his Shi’a religion.
In circumstances where, as in this case, the Tribunal expressly stated in its reasons that:
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future
I am not willing to accept that the Tribunal did not, in paras.74 and 75 of its reasons, apply the correct test.
In particular, I am unpersuaded by the applicant’s argument that the manner of the Tribunal’s expression of its reasons gives the lie to para.75 of its decision and demonstrates that it was doing no more than reciting a test which it did not apply. Rather, the substance of the Tribunal’s reasoning demonstrates a consideration of the future which included not only the immediate future but also more remote points. It was broad rather than narrow in consideration and expression and, to borrow from counsel’s address, it looked not only to the hills but also to the horizon.
Similarly, too much should not be made of the argument that the Tribunal did not quote certain country information in the detail which the applicant would have liked to have seen. The applicant quoted in this connection certain country information to which he said the Tribunal had failed to make any or any adequate reference but, although recording persistent sectarian violence and instability, most relevantly in the Punjab where the applicant lived from 2006, I do not agree that it depicted a “trajectory” of the sort for which the applicant contended or at least not one relevant to the applicant’s particular circumstances as a resident of Rawalpindi.
In any event, the applicant’s argument that the Tribunal would not have omitted reference to the country information in question had it been engaged fully with the question of his risk of persecution in the reasonably foreseeable future fails to acknowledge that the Tribunal was not required to recite information on which it placed no reliance, information which it might be noted the applicant does not contend was not considered. Given the reasoning exposed in the decision record, it would be better to conclude that the Tribunal chose to place no reliance on the material in question and so did not burden its reasons with its inclusion. I do not find that it was a subconscious manifestation of a failure to apply a test which the Tribunal expressly stated that it had applied.
Ground 2
In support of the second ground of the amended application the applicant referred to the following passages from two judgments of the High Court:
It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
(Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)
and
… it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event. …
(Wu Shan Liang per Brenan CJ, Toohey, McHugh and Gummow JJ)
In his address to the Court the applicant explained the significance of those passages by saying that “if you’re going to build a structure, you need to make sure that the foundations are sound, and the foundations weren’t sound in this case, because the primary findings of the tribunal were highly contestable”. It should be noted that it was not contended that the Tribunal’s factual findings were affected by legal error, such as by a failure to consider claims or material evidence.
The applicant submitted that the Tribunal had failed to address the following matters in its reasons, implicitly contending that such failure led to its decision being affected by jurisdictional error in some unspecified way. He submitted:
… The Tribunal ought to have, but did not, in correctly addressing the likelihood of persecution:
32.1Address the fact as found, contrary to the Tribunal’s summing up of its findings at [74], that the Applicant had in fact already been the victim of a bomb blast
32.2Address the Applicant’s claim that he had been present at a second bomb blast
32.3Address the claim the Applicant’s cousin and friend had been murdered in a suicide attack, in assessing the likelihood of a similar attack on the Applicant
32.4Admit the possibility that the Applicant had been understood to have ‘spoken out’ against Sunni groups
32.5Make any positive finding as to the Applicant’s membership of the TNFJ and ISO at all
32.6Introduce into its calculus the possibility that the inconsistent dates given by the Applicant were not the product of lies or embellishment, but were [sic] had a less sinister explanation such as inaccurate recall or nervousness
32.7Admit the possibility that the individual attacks on the Applicant were warnings or graduated forms of threat, and that the fact that the Applicant was not killed or ‘seriously harmed’ did not only lead to the conclusion that the attacks were totally random
32.8Admit the possibility that the Applicant not applying for a protection visa at the earliest available opportunity, having secured a student visa for the immediate future, was not the product of a later conspiracy to cheat the immigration authorities
32.9Consider country information geographically and temporally specific to Punjab and Rawalpindi in respect of sectarian violence against Shi’a placed the Applicant in a different category to Shi’a across the broad swathe of Pakistan
What in substance the applicant was doing by that argument was inviting review of the Tribunal’s fact finding. Putting aside the fact that the contentions in paras. 32.1 and 32.2 are not factually correct, in that there was no finding that the applicant had been injured in a bomb blast, indeed quite the reverse, and that the Tribunal did accept that the applicant had been present at both the 2004 and 2009 bomb attacks, this submission discloses no reviewable error on the Tribunal’s part because the Court has no power to embark on a review of the Tribunal’s fact finding.
In his address to the Court the applicant’s counsel said:
I just want to make it clear we’re not saying that the fact-finding itself wasn’t open, but those were very uncertain premises from which you could apply the test as described by Brennan CJ. And to approach it in the way that they did on that – such an uncertain foundation, that was error, jurisdictional error, we contend.
However, in Guo the plurality went on after the passage quoted by the applicant to say in a further passage to which the Court was not taken:
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong. (at 576)
That statement and the other presently relevant passages from Guo and Wu Shan Liang were considered in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 where Sackville J said at 240 [62]-[63] and 241 [67], North J agreeing at 253 [129]:
… it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. …
Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. …
…
In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. … Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
I do not accept that a fair reading of the Tribunal’s findings on the facts it considered material to the disposition of the applicant’s review, which have been summarised earlier in these reasons, provide a proper basis to suspect that it entertained no real doubt that those findings were correct. It expressed its conclusions in firm terms which did not require it to question the correctness of its findings.
Ground 3
The applicant submitted that jurisdictional error may result from the Tribunal framing a review of the applicant’s claims too narrowly. In this case, the applicant made no express claim to membership of a particular social group, other than perhaps Shi’a Pakistanis, and so the third ground of the amended application requires the Court to decide whether a claim to membership of a different group, specifically the narrower group pleaded in this allegation, was one which should have been considered because such a claim was clearly raised by the material before the Tribunal.
The applicant submitted:
… the Tribunal proceeded upon the latent premise that if the Applicant could not make good his contention that he had acquired an individuated ‘profile that would warrant him being targeted by Sunni extremist organisations’ in his capacity as a member of TNFJ and/or ISO, then the Convention Reason framing his protection application would be either membership of the ‘particular social group’ of Shi’a Muslim in Pakistan, or else as a member of the ‘religious’ group of Shi’a in Pakistan. Hence, the Applicant was to be understood not as a member of the particular social group of ‘young, religiously observant, Shi’a males in Rawalpindi who were also members of both the TNJF and ISO’, but instead as a member of a social group consisting of tens of millions of Shi’as. (references omitted) (underlining in submissions)
It is to be noted that this submission makes an allegation different from the one in the third ground of the amended application.
The applicant continued:
But the Tribunal accepted the ‘possibility’ that the Applicant had joined the ISO after 2008. The Tribunal did not, expressly, accept or reject the claim that he was a member of the TNFJ as well. Members of the ISO and TNFJ were a ‘particular social group’ capable of separate identification within Pakistan. It was erroneous for the Tribunal to reject the proposition that the Applicant had no ‘profile’ in the eyes of Sunni extremists as a member of the TNFJ and ISO, in the absence of which treat the Applicant as a member of the religious group of ‘Shi’a in Pakistan’.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 20 [62], the Full Court of the Federal Court referred to what Gleeson CJ had said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 479 [1]:
… Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
That is really what has happened here. The difficulty with the applicant’s submission/allegation is that he made no claim of the sort now advanced when he was before the Tribunal. At his review, his claim to fear persecution was relevantly based on the activities which he undertook as a member of the TNFJ and the ISO, not upon the purported fact of his membership of those organisations. Further, to quote the Full Court of the Federal Court in NABE at 22 [68]:
Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
Those criteria have not been met in this case and so the third ground of the amended application has not been made out.
Ground 4
The burden of the final ground of the amended application is that the Tribunal’s statement in para.74 of its decision record that:
As … stated above, the Tribunal has not accepted that the applicant has previously been harmed or targeted …
was illogical and lacked intelligible justification because the Tribunal accepted that the applicant had been present at the two mosque bomb attacks. In addresses the applicant’s counsel submitted in this connection:
We say that that demonstrates a misunderstanding of harm within the meaning of the Convention. To be present at a suicide bombing is necessarily harm and, in any event, that’s what he said in the transcript. He says that, “I mentally suffered by being there,” …
At page 27 of the transcript of the Tribunal hearing the applicant was recorded as saying in relation to the 2009 bombing:
And that was most startling for me mentally. I was mentally stressed [inaudible] things like that.
The applicant did not suggest that the transcript otherwise recorded him having told the Tribunal that he was physically harmed in any way in the 2004 or the 2009 bombings. That was fair given that at pages 25 to 27 of the transcript he is recorded as having been asked about those events and as having given evidence about them without alleging that he had suffered anything other than mental stress in 2009.
Further, when the Tribunal’s statement in para.74 of its reasons, which reflects its findings in para.66 of its reasons, is read in context it should be understood to relate to physical harm. The applicant’s claims to fear persecution turned on his stated fear of physical harm because he was being targeted because of his activities or because of more generalised violence against Shi’a Muslims, not that he suffered mental stress. The finding now complained of reflected the issue raised by the applicant’s claims and was open on the evidence. This was not a case of a claim being overlooked by the Tribunal but a case of the applicant not persisting with a claim of physical harm when given the opportunity to do so. No error is shown by the Tribunal dealing with the applicant’s claims in the form in which they were pressed before it.
Moreover, the applicant’s claimed mental stress was irrelevant to the Tribunal’s considerations because it was not suggested, nor was it apparent from the evidence, that any mental stress he suffered amounted to harm serious enough to engage Australia’s protection obligations under the Convention: cf s.91R(2) of the Act as it applied to this application:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(dsignificant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
In any event, even if the finding that the applicant had not suffered physical harm was incorrect, that was an error within jurisdiction.
The statement about which the applicant complains addresses two issues, “harm” and “targeting” which reflect two of the three elements of “persecution” as s.91R(1) defined it at the time. The applicant has focussed on only one of these, “harm”. He has not substantively challenged the Tribunal’s finding that he was not “targeted”, in the sense that the persecution he claimed to fear did not involve “systematic and discriminatory conduct”: s.91R(1)(c). His written submissions contended that a suicide bombing cannot be characterised as randomised violence but, as was open to it, the Tribunal found that the attacks in question were indeed random, vis à vis the applicant, which was the relevant issue.
Unless the Tribunal’s conclusion that the applicant had not been targeted is shown to have been legally erroneous, which the applicant did not attempt, any error in its finding as to an absence of harm does not provide a basis to set its decision aside. The absence of a finding that s.91R(1)(c) was satisfied, by a conclusion that the applicant had been targeted for harm, provides an independent basis for the statement made in para.74 of the Tribunal’s reasons. That intermediate finding was logically and reasonably open to the Tribunal given its primary findings of fact which were, in turn, open on the evidence.
For those reasons, the fourth ground of the amended application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 25 January 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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