BFW23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 401
•2 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFW23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 401
File number: PEG 75 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 2 May 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant a protection visa to the applicant – whether the Tribunal made unreasonable or incorrect findings – whether the Tribunal failed to give proper, realistic and genuine consideration to claims – whether the Tribunal took into account irrelevant considerations – whether the Tribunal erred in application of relevant law – whether the Tribunal erred in its assessment of the applicant’s evidence and in making findings of fact – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 91R, 91S, 476, 477 Cases cited: DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of hearing: 6 February 2024 Place: Perth Applicant: In person Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs. Solicitor for the Respondents: MinterEllison ORDERS
PEG 75 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BFW23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Pakistan who applied for a protection visa in Australia. A delegate of the Minister refused to grant him a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 27 April 2023. The applicant seeks judicial review of the Tribunal decision pursuant to the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant advanced grounds of application asserting that the Tribunal made a finding that was unreasonable, failed to give proper, realistic and genuine consideration to the applicant’s claims and took into account irrelevant considerations. The applicant raised further issues in a written submission filed on the day of the hearing.
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
Before addressing the background and grounds, I note that I have formed the view that discussing the applicant’s claims for protection in detail in this judgment, and referring to the names of witnesses, places and organisations central to those claims, may lead to the identification of the applicant. I have therefore declined to name the political party or organisation that the applicant claimed to have founded and the area in which the applicant lived in Pakistan, and I have referred to witnesses by their first initial only. I mean no disrespect to the applicant or his witnesses in taking this approach. My only intention in writing in such a way is to avoid inadvertently disclosing the applicant’s identity.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in 2011 as the holder of a student visa.
On 9 June 2014 the applicant applied for a Protection (Class XA) visa. The applicant claimed that he would face harm from terrorist groups in Pakistan because of the work he performed as a school teacher and with non-governmental organisations (NGOs).
A delegate of the Minister refused to grant the applicant a protection visa on 21 July 2017.
On 17 August 2017 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 5 May 2021 the Tribunal sent to the applicant, by his representative, an invitation to attend a hearing on 9 June 2021. The applicant attended the hearing on 9 June 2021 assisted by his representative. The Tribunal’s record of that hearing indicates that another hearing was to be scheduled.
On 13 July 2021 the Tribunal sent to the applicant, again by his representative, an invitation to attend a further hearing on 28 July 2021. At the applicant’s request, that hearing was rescheduled to 5 August 2021, and then further rescheduled to 6 August 2021. That hearing was subsequently vacated because the Tribunal member became unavailable.
On 26 November 2021 the Tribunal sent to the applicant a further invitation to attend a hearing on 18 January 2022. The applicant attended the hearing on 18 January 2022, again assisted by his representative. Two witnesses, who had previously made statutory declarations which were given to the Tribunal by the applicant, also attended the hearing to give evidence.
On 9 February 2023 the Tribunal sent to the applicant, again by his representative, a further invitation to attend a hearing on 27 February 2023. At the applicant’s request that hearing was rescheduled to 1 March 2023. The applicant attended the hearing on 1 March 2023 and was again assisted by his representative.
On 27 April 2023 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF TRIBUNAL DECISION
The Tribunal identified that the applicant claimed to fear harm from Sunni extremist groups including the Taliban if he returned to Pakistan due to:
(a)his actual or imputed political opinion because of his activities in Pakistan, including:
(i)his involvement with a party organisation that he claimed to have established;
(ii)his work with NGOs against sectarian violence and honour killing of girls and women;
(iii)his work with NGOs on vaccination programs and medical camps; and
(iv)his involvement as a teacher and accountant at a local school owned by his family;
(b)being perceived as an infidel due to having spent time in a western country; and
(c)generalised violence in Pakistan.
The Tribunal accepted that the applicant’s family had been involved in running a school and a hospital, with one of the applicant’s sisters running the hospital and another sister running the school. The school and the hospital both ceased operating in late 2010 or in 2011.
However, the Tribunal had significant concerns about some aspects of the applicant’s claims. The Tribunal had concerns about the veracity of some documents submitted by the applicant, the delay in the applicant seeking protection and inconsistencies in his claims over time.
The Tribunal considered country information and accepted that the security situation in Pakistan was unstable and that there had been an uptick in extremist violence since mid-2021, following a decline over a number of years. The Tribunal noted, however, that country information suggested that attacks continued to be directed at individuals and groups with a particular profile, including security forces, pro-government tribal elders and political leaders.
The Tribunal did not accept that the applicant had a profile that would cause him to be of ongoing interest to the Taliban, and the Tribunal did not accept that the applicant would be at risk of serious harm for the essential and significant reason of his actual or imputed political beliefs on return to Pakistan.
The Tribunal was prepared to accept that the applicant, with the assistance and funding of his father, established a party or organisation to promote the applicant’s interest in social welfare initiatives as expressed in the manifesto of the organisation. The Tribunal was also prepared to accept that the organisation had a general membership of 100 people. However, the Tribunal did not accept that the organisation was a political party or that the applicant sought to have it afforded such stature. The Tribunal did not accept that the organisation had any particular prominence or stature in the local or broader Pakistani community such that it came to the attention of extremists leading to the applicant being personally targeted by the Taliban or any other extremist group, or that it would lead to him being of ongoing adverse interest and at risk of serious or significant harm on return to Pakistan.
The Tribunal expressed doubt about the applicant’s claim to fear harm on the basis that the extremists visited the school he worked at and asked the caretaker or doorman where the applicant was. The Tribunal noted inconsistencies between the applicant’s initial evidence and documentary evidence provided to support his claim, in the form of a first information report made to the local police. The Tribunal did not accept that the applicant was targeted on this occasion because the evidence suggested that the attackers inquired about ‘the owner of the school’ and the applicant was not the owner. The Tribunal did not consider it credible that a local terrorist act group would mistake the applicant, who was then a teenage boy, as the owner and administrator of the school.
Taking into account country information, the Tribunal was prepared to accept that extremists may have threatened school staff in 2010 and that students may have withdrawn in the face of those threats. The Tribunal noted that the decision to close the school, on the applicant’s evidence, was made in December 2010 in the context of declining enrolment, which suggested to the Tribunal that the motivating factors for the school’s closure were other than an incident that had occurred some eight months prior, in March 2010. The Tribunal did not accept that the applicant was at risk due to his prior involvement with the school and did not accept that he would be involved in running a school in the future given his lack of qualifications as a teacher and the fact that the school’s prior operation appeared to have been linked to his sister’s leadership and qualifications.
The Tribunal also had concerns about the applicant’s claim to have been involved with NGOs supporting community health programs including vaccination. The Tribunal did not accept that the applicant had a profile within his local area or that he possessed immutable characteristics that would have made him a target. In any event, the Tribunal accepted that the hospital closed after the applicant’s sister married and moved to another city. The Tribunal did not accept that the hospital was closed on account of any threats against the applicant or the medical clinic.
While the Tribunal accepted that the applicant’s family’s prior activities may have drawn the attention of extremists when they were operating more than 10 years ago, the Tribunal did not accept that the family would still be of interest on that basis, having ceased operating the school and the medical facility. The Tribunal also considered that it was those activities, and not the applicant, that would have been the target of attention, with the heads of those organisations, namely the applicant’s sisters and father, being persons at risk to the extent that such a risk was present.
The Tribunal did not accept that the applicant would face a real chance of serious harm as a person who had spent significant time abroad or that he would be imputed to be an infidel for having spent time abroad. This finding was based on the Tribunal’s consideration of the applicant’s personal circumstances and credible country information.
Having considered the applicant’s claim separately and cumulatively, the Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 12 May 2023, which is within 35 days of the date of the Tribunal decision and the application is therefore made within the time frame prescribed by s 477(1) of the Migration Act.
The applicant relies on an application which asserts the following grounds (reproduced without alteration):
1.While finding “the Tribunal accepts the applicant’s family have been involved in activities which may have brought them to the adverse attention of extremists groups or supporters in the past” however concluding that “the tribunal had concerns with the credibility of the applicant’s claims to have been personally targeted by the Taliban in Pakistan due to his profile when in Pakistan and to be of ongoing interest to the Taliban on this basis [para 136], is contrary to the evidence. The Tribunal’s concerns regarding the applicant’s credibility and its assessment are not based on a reasonable approach. The Tribunal constructively failed to exercise its jurisdiction, or otherwise failed to carry out its statutory task logically and rationally to consider a ‘reason’ claimed by the Applicant that he has not travelled back to Pakistan for the past nearly 12 years since arriving in Australia … [in] April 2011 as ‘he fears being killed’
2.The Tribunals finding that “Given country information regarding attacks on schools in […] the Tribunal is prepared to accept extremists may have threatened school staff in 2010. The Tribunal also accepts that students have withdrawn in the face of those threats and the Applicant's family may have made a decision to close the school” however, rejecting the Applicant’s claim that he was personally targeted by concluding “and the fact he was not the owner of the school and what he claims to be a contemporaneous record of the events indicates the threats were directed at the owner of the school, his father, the Tribunal does not accept the applicant was personally targeted in an attack on the school in 2010 or at any other time” [para 144]. This finding is infected by jurisdictional error.
3.Failed to give proper, realistic and genuine consideration
(a) While accepting that the Applicant “has not returned to Pakistan lends supports to his claims to fear returning there”, however, failed to give proper, realistic and genuine consideration to the Applicant’s claims in finding that “It does not, however, establish that such fears are well-funded, nor that his desire reasons for not wanting to return give rise to a claim for protection. On its own, a lack of return travel to Pakistan is not sufficient to establish a real risk of serious or significant harm arises if the applicant were to return” [para 153].
(b) Took into account irrelevant considerations.
A Registrar of this Court made an Order on 22 August 2023, which contained a number of orders about steps that the parties were required to take prior to the hearing. One of the orders made by the Registrar required the applicant to file and serve written submissions, any amended application and any additional evidence at least 14 days before the hearing. The applicant did not file documents in accordance with this order, but did provide a written submission and two statutory declarations to my chambers the day before the hearing. The Court does not accept documents for filing when they are simply emailed to chambers. However, at the hearing I accepted the two statutory declarations as exhibits and I told the applicant that I would have regard to his submission and requested that he file it with Registry after the hearing, which he did. The Minister filed written submissions in accordance with one of the orders made by the Registrar.
The submission provided by the applicant appears to raise additional grounds to those in his application and it is therefore convenient to set out in full, albeit with the removal of any information that may cause the applicant to be identified:
AAT Member made a Judicial error when assessing credibility and ignore the procedure which applies on credibility.
AAT Member made a judicial error while assessing the protection law and ignore UN convention on the basic rights of refugee.
AAT Member made a judicial error while assessing the party’s Presidency, as I provided all the documents which proves my presidency.
AAT Members mentioned about [N] and [Q] statements regarding that they have not mentioned anything about my designation in the organization, while they were not asked this question directly, if they had a doubt, they could have asked this question.
AAT member made a judicial error while assessing my part [party/organisation], and in 137 they mentioned.
I started this organization on the basic right of women because women were fearful about their involvement in the organisation that’s why they were not active members.
I founded this organization to champion women’s rights. However, ensuring their protection becomes challenging when my own life is under threat.
The evidence before the Court comprises:
(a)the court book filed on behalf the Minister (exhibit 1);
(b)the statutory declaration made by Q on 4 February 2024 (exhibit 2);
(c)the statutory declaration made by N on 5 February 2024 (exhibit 3);
(d)an 11 page document published by the Tribunal titled ‘Guidelines on the Assessment of Credibility’ (exhibit 4);
(e)an affidavit filed by the applicant on 12 May 2023, which annexes a copy of the Tribunal decision; and
(f)an affidavit of service of Grace Mickle filed on behalf the Minister on 5 February 2024.
CONSIDERATION OF APPLICANT’S GROUNDS AND SUBMISSIONS
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute…
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed…. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Disagreement with the decision of the Tribunal, even emphatic disagreement, is not, of itself, sufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
Ground 1
By ground 1, the applicant asserts that the Tribunal:
(a)made a finding that was contrary to the evidence;
(b)took an unreasonable approach to the assessment of the applicant’s credibility; and
(c)constructively failed to exercise its jurisdiction, or acted illogically and irrationally, in failing to consider that the reason the applicant had not travelled back to Pakistan for the past 12 years was that he feared being killed.
To the extent that this ground asserts that the Tribunal took an unreasonable approach to the assessment of the applicant’s credibility, it overlaps with the first paragraph of the applicant’s submission and I treat that submission as being directed to this ground.
The finding that the applicant believes was made contrary to the evidence is at [136] of the Tribunal’s reasons. In that paragraph, the Tribunal said (emphasis added):
While the Tribunal accepts the applicant’s family have been involved in activities which may have brought them to the adverse attention of extremist groups or supporters in the past, the Tribunal had concerns with the credibility of the applicant’s claims to have been personally targeted by the Taliban in Pakistan due to this profile when in Pakistan and to be of ongoing interest to the Taliban on this basis.
It is convenient to first address the Tribunal’s approach to its assessment of the applicant’s credibility at a more general level, before considering the specific adverse credibility finding reflected at [136] of the Tribunal’s reasons.
The Tribunal set out its approach to the assessment of credibility at [111]-[115] of its reasons, where it said (footnotes omitted):
111.In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact‑finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in several decisions.
112.The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
113.If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
114.However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision-making. In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.
115.Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.
I am satisfied that this summary accurately reflects the case law on the assessment of credibility, based on the cases cited in the footnotes to the Tribunal decision, which have not been reproduced in this judgment.
When I asked the applicant at the hearing about the mistake he asserts the Tribunal made in assessing his credibility, the applicant submitted that the Tribunal should have given him the benefit of the doubt and believed whatever he was saying. He believes the Tribunal did not have any regard to his situation. The applicant submitted that, even if the Tribunal had concerns about the ease with which fraudulent documents can be obtained in Pakistan, he should have been given the benefit of the doubt because he has been living in Australia for so long without support from his family.
The applicant submitted that the Tribunal found his family members were not targeted even though the applicant provided evidence that they were targeted. The applicant further submitted that he was the face of the organisation, and nobody else in his family was the face of the organisation, which is why he was the one who was targeted.
I do not accept that the Tribunal’s reasons disclose jurisdictional error in relation to its assessment of the applicant’s credibility, either generally or with respect to the specific findings identified by the applicant. The approach taken by the Tribunal is consistent with the case law it identified and with the Tribunal’s guidelines for the assessment of credibility, which the applicant provided to the Court but did not address in his submissions.
The main complaint of the applicant is that the Tribunal did not give him the benefit of the doubt. However, it is important to note that the Tribunal is not required to uncritically accept all of the applicant’s claims and evidence: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 (Beaumont J); DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [26].
The Tribunal carefully assessed the evidence before it and gave logical reasons for the adverse credibility findings identified by the applicant.
The Tribunal’s finding that the applicant was not personally targeted was made after a detailed consideration of various sources of evidence. The Tribunal found, based on the applicant’s evidence, that his father provided the funds, one sister ran the hospital and another sister ran the school. The Tribunal considered that it was implausible that the applicant would be targeted, rather than his father or sisters.
The Tribunal considered the first information report and a threat letter that had been provided by the applicant as documentary support for his claims. The Tribunal identified inconsistencies between the applicant’s evidence and the first information report in relation to the date of the attack on the school and the Tribunal also noted that the first information report referred to the visitors to the school enquiring about ‘the owner of the school’. The Tribunal took into account the applicant’s own evidence in finding that he was not the owner of the school nor its principal and therefore found that the applicant was not the person who was targeted. The Tribunal also had regard to the evidence of the applicant’s father, which although it referred to the applicant being threatened, made no reference to the applicant being targeted due to his involvement with the school.
In relation to the threat letter, the Tribunal was concerned that the letter was the only document that named the party established by the applicant. The Tribunal was also concerned that the letter referred to the applicant failing to close his school in circumstances where the applicant’s father owned the school and his sister operated the school. The Tribunal did not consider it credible that a local terrorist group who was aware of the applicant’s small organisation by name would then mistake the applicant, who was a teenage boy at the time, as the owner and administrator of the school.
The Tribunal questioned the applicant as to why it was that he believed he was at risk rather than his sisters or father. The Tribunal considered the applicant’s explanations about why he believed he had a higher profile than his sisters, but found that his responses, namely that his sister who operated the school was a woman who kept a low profile and his sister who ran the hospital had a lower profile than the applicant because she got married and stopped practising medicine, lacked credibility. The Tribunal also noted that the applicant’s explanation in relation to his sister who ran the hospital was inconsistent with his earlier evidence that the sister got married and ceased operating the hospital after the applicant left Pakistan.
The Tribunal had regard to the evidence that the applicant provided in relation to his claims that other family members had been targeted. The Tribunal noted that prior to the second hearing the applicant produced several police reports recording complaints about attacks on family members, but considered the applicant’s explanation that his family had not told him about the incidents earlier to be not credible in circumstances where the applicant’s family knew that he was applying for a protection visa. The Tribunal also noted that credible country information suggested document fraud in Pakistan was a significant issue and first information reports cannot be relied upon as proof of the incidents reported. The Tribunal also noted that the applicant’s claims of further harm to his family were in direct contrast to his earlier evidence that no harm had come to his family due to their low profile and his parents’ ages.
The Tribunal has provided an intelligible justification for the adverse credibility findings it made against the applicant. No jurisdictional error is evident from the Tribunal’s reasons.
To the extent that the applicant claims that the Tribunal constructively failed to exercise its jurisdiction, or acted illogically and irrationally, in failing to consider that the reason the applicant had not travelled back to Pakistan for the past 12 years was that he feared being killed, the ground is without foundation. The Tribunal clearly considered the applicant’s claim that he had not returned to Pakistan since arriving in Australia due to his fear at several places in its reasons. Most significantly, the Tribunal addressed this at [153] of its reasons, which is the paragraph the subject of ground 3 and the Tribunal’s findings in this paragraph are discussed in the context of ground 3 below. The Tribunal also referred to this claim again at [158] of its reasons. The Tribunal found that the applicant’s lack of desire to return to Pakistan and that he had not returned to Pakistan whilst living in Australia lent weight to his claim to have a subjective fear of returning to Pakistan, but did not, of itself, establish that the fear was well-founded. For the reasons explained in the context of ground 3 below, this finding was open to the Tribunal.
Ground 1 does not establish jurisdictional error.
Ground 2
By ground 2, the applicant asserts that the Tribunal’s finding at [144] of its reasons is affected by jurisdictional error. In that paragraph, the Tribunal said:
Given country information regarding attacks on schools in [area] the Tribunal is prepared to accept extremists may have threatened school staff in 2010. The Tribunal also accepts that students have withdrawn in the face of those threats and the applicant’s family may have made a decision to close the school. However, the Tribunal notes that on the applicant’s evidence this was done at the end of the school year in December 2010 and in the context of declining enrolments. This suggests the motivating factors for the school’s closure were other than an incident which had occurred some 8 months prior, in March 2010. In any event, given the applicant’s self-described role at the school as a teacher in two subjects and accountant, the fact it was run by his sister including for some significant time before he taught there, and the fact he was not the owner of the school and what he claims to be a contemporaneous record of the events indicates the threats were directed at the owner of the school, his father, the Tribunal does not accept the applicant was personally targeted in an attack on the school in 2010 or at any other time.
The applicant in his application does not characterise the type of jurisdictional error that he believes the Tribunal made in this paragraph. The applicant was given an opportunity at the hearing to better explain the nature of the jurisdictional error asserted.
The applicant submitted that the Tribunal accepted that schools were targeted, and even accepted that the applicant’s school would have been targeted, but did not give any weight to the applicant’s own life. The Tribunal did not consider that the applicant’s life was personally targeted even though it accepted that schools were targeted. The applicant believes the Tribunal made a jurisdictional error by not accepting that he was personally targeted.
The applicant also submitted that every country has a different understanding of ownership of property. He submitted that anything owned by his father would be considered as being owned by him because he is his son, so therefore it did not mean that the owner of the school necessarily meant his father. The applicant submitted that he was the face of the organisation and doing all the activities himself and therefore the threats were aimed at him, not his family members or his father. That is the reason he has been living here since 2011, without visiting Pakistan once in that time.
The applicant has not established any jurisdictional error in the reasoning of the Tribunal at [144] of its reasons. The Tribunal was considering whether the applicant himself had a profile that would cause him to be targeted for harm. It was in this context that the Tribunal accepted that there may have been an attack on the school, whilst also finding that the applicant was not personally targeted in that attack because of any profile he held or was perceived to hold. This is not, as the applicant submitted, an instance of the Tribunal failing to give any weight to the applicant’s own life. Rather, in considering all the circumstances, the Tribunal was not satisfied that the applicant was, or was perceived to be, the leader of the school. The finding that the applicant did not own the school was based on his own evidence. The Tribunal’s finding that the applicant was not personally targeted was open to it on the evidence before it and the Tribunal has given an intelligible justification for its finding.
It is also relevant to note in the context of this ground that the Tribunal was required to consider whether the applicant would face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. The Tribunal made a factual finding that the applicant would not be involved in running a school in the future given his lack of qualifications as a teacher and the fact the school’s prior operation appears to have been linked to his sister’s leadership and qualifications as a tertiary teacher. To the extent that the applicant’s ground might be understood as a complaint that he could be at risk of harm on the basis that the school was targeted, even if he personally was not, the Tribunal’s finding that he would not be involved in running a school in the future adequately explains why the Tribunal did not consider that the applicant faced a real chance of such harm.
Ground 2 is not established.
Ground 3
Ground 3 refers to [153] of the Tribunal’s reasons, where the Tribunal said:
The applicant also claimed that the fact he has not returned to Pakistan is proof that he is at risk of serious or significant harm there. The Tribunal accepts that the fact that the applicant has not returned to Pakistan lends supports to his claims to fear returning there. It does not, however, establish that such fears are well-founded, nor that his desire reasons for not wanting to return give rise to a claim for protection. On its own, a lack of return travel to Pakistan is not sufficient to establish a seral risk of serious or significant harm arises if the applicant were to return.
The applicant’s assertion that the Tribunal did not give proper, realistic and genuine consideration to his claims appears to be an expression of disagreement with the finding made by the Tribunal.
The applicant’s oral submissions confirmed that he is simply expressing disagreement with the finding made by the Tribunal. The applicant submitted at the hearing that the Tribunal found that the applicant’s lack of desire to return home did not of itself establish that the fear of harm was well-founded or give rise to a claim for protection, but the applicant thinks this is a serious issue. If it was not a serious issue, he would have returned home, because it is taking a toll on his mental health and there is uncertainty of his life in the future.
There is no jurisdictional error evident in the Tribunal’s finding at [153]. The test relating to whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act contains both subjective and objective elements. The Tribunal at [153] accepted that the fact that the applicant had not returned to Pakistan tended to support a finding that he had a subjective fear of returning there. However, the Tribunal’s reasons at [153] also acknowledge that there is an objective element to the test that also needs to be satisfied, namely, whether the fear of harm is well-founded. The Tribunal effectively acknowledged at [153] that consideration of the objective element of the relevant test requires it to consider a range of circumstances beyond the applicant’s subjective fear. The Tribunal considered those other circumstances elsewhere in its reasons and made a factual finding that the applicant’s fear was not well-founded.
The Tribunal’s reasons are thorough and detailed and I am satisfied that the Tribunal gave proper, realistic and genuine consideration to the applicant’s claims.
The applicant also asserts by ground 3 that the Tribunal took into account irrelevant considerations, but in his application he does not identify what irrelevant considerations he believes the Tribunal took into account. When asked about this at the hearing, the applicant submitted that he believes the Tribunal made an error when they took into account irrelevant considerations that he was not a member, or owner, of the school and was not the president of a party.
This again is an expression of disagreement with the factual findings made by the Tribunal. The applicant does not appear to be asserting that there was an implied limitation, found in the subject matter, scope and purpose of the Migration Act, preventing the Tribunal from taking into account whether he was involved in a school or president of a party organisation: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15(b)]. Indeed, the Tribunal was required to consider those matters, as they were raised by the applicant as part of his claims for protection: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [58].
Rather, the applicant is asserting that the Tribunal made incorrect findings of fact and therefore found that he did not engage Australia’s protection obligations. There was evidence before the Tribunal to support a finding by the Tribunal that it was the applicant’s father, rather than the applicant, who was the owner of the school which was run by his sister. I am unable to locate any finding in the Tribunal’s reasons to the effect that the applicant was not the president of the party. Rather, the Tribunal accepted that it was plausible that the applicant established the party, with the assistance and funding of his father, but did not accept that the organisation was a political party or that it had such prominence or stature in the community that it came to the attention of extremists. Again, this finding was open to the Tribunal on the evidence before it.
Ground 3 does not establish jurisdictional error.
Other matters raised in the applicant’s submissions
The other matters referred to in the applicant’s submissions, which are not addressed in the consideration of the grounds above, include assertions to the effect that:
(a)the Tribunal incorrectly applied the relevant law in assessing whether the applicant was a refugee;
(b)the Tribunal made a jurisdictional error in assessing the party’s presidency, because the applicant provided all the documents that proved his presidency;
(c)the Tribunal placed weight on the failure of the applicant’s witnesses to state his designation within the party or organisation without asking the witnesses about this; and
(d)the Tribunal erred in its findings at [137] in assessing the applicant’s role within a relevant party or organisation.
I address these in turn.
Application of relevant law relating to refugees
At the hearing, the applicant submitted that the Tribunal accepted there was country information that those of Han ethnicity were targeted, that a lot of law enforcement people were targeted, and over 800 civilians were targeted. The applicant submitted that even if a single person is targeted, the Tribunal should have taken that into consideration, but there was a large number of people who were targeted.
The Tribunal correctly identified the law that it was required to consider in determining whether the applicant satisfied the refugee criterion in s 36(2)(a) of the Migration Act, as the law stood at the date of his application, being 9 June 2014. The Tribunal recognised that it was required to consider whether Australia owed protection obligations to the applicant under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. The Tribunal identified the requirements of Article 1 and Article 1A of the Convention and recognised that ss 91R and 91S qualify some aspects of Article 1A(2) for the purposes of the application of the Migration Act and Regulations to a particular person. The Tribunal identified that there are four key elements to the Convention definition, namely:
(a)the applicant must be outside his or her country;
(b)the applicant must fear persecution;
(c)the fear of persecution must be for one of the reasons enumerated in the Convention definition, namely, race, religion, nationality, membership of a particular social group or political opinion; and
(d)the applicant’s fear of persecution must be ‘well-founded’, which adds an objective element to the requirement that the applicant hold such a fear.
The Tribunal recognised that a person will have a ‘well-founded fear’ of persecution if they have a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention reason and that a ‘real chance’ is one that is not a remote or insubstantial or far-fetched possibility.
The Tribunal applied this law throughout its reasons.
The applicant in his submissions to the Court referred to a risk of harm to people of Han ethnicity and to people in law enforcement. The applicant claimed before the Tribunal to be of Han ethnicity but I cannot locate anything in the court book to indicate that the applicant claimed that he would face harm on this basis. The applicant has not identified any material before the Tribunal from which he says that an unarticulated claim may have clearly emerged from the material before the Tribunal. The Tribunal is not required to consider any claim that is not expressly articulated by an applicant or which does not clearly emerge from the material before the Tribunal based on established facts: NABE at [60]; Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [13]. I am not satisfied that the Tribunal had any obligation to consider whether the applicant would face harm on account of his Han ethnicity.
The applicant did not claim to be involved in law enforcement and there is no evidence before the Tribunal that the applicant had any role in law enforcement. Therefore, the Tribunal was not required to consider the risk of harm to the applicant based on any law enforcement role.
To the extent that the applicant in his submission is claiming that the Tribunal was required to take into account if any single person is targeted, it is not clear whether the applicant is asserting that there was any particular evidence that the Tribunal failed to take into account. He has not identified any such evidence. The Tribunal was required to consider the risk of harm only in relation to the applicant, taking into account the applicant’s circumstances, and was not required to find that the applicant faced a real chance of serious harm if the chance was one that was remote.
I am satisfied that the Tribunal correctly identified and applied the relevant law.
Finding of fact in relation to whether the applicant was the president of his party
The other matters raised by the applicant in his written submission all relate to a finding he believes the Tribunal made to the effect that the applicant was not the president of his party.
In his oral submissions at the hearing, the applicant characterised the Tribunal’s finding as being that because the affidavits made by his father and his friends did not mention him as president of a party, the Tribunal did not believe he was the president of the party. The Tribunal then said that he would not have a profile that would have attracted the attention of the Taliban, but even people doing minor things such as not praying properly get targeted. The applicant also said that a person who has a party of 100 people doing work on the ground and fighting for something can be a big target and the Tribunal did not take this into consideration.
The applicant submitted that the Tribunal did not ask his two witnesses, N and Q, about his designation or position within his party. In his statutory declaration provided to this Court, N states that the Tribunal member did not ask him about the applicant’s designation within the party and confirms that the applicant was the president of the party. Q, in his statutory declaration to the Court, confirms that the applicant served as president of the party and stated that the Tribunal did not raise inquiries about the applicant’s presidency during the hearing.
The final point made in the applicant’s submissions relates to an alleged error made at [137] of the Tribunal’s reasons. The Tribunal at [137] set out a number of concerns that it had regarding the applicant’s claim to be at risk of serious or significant harm due to his activities, leadership or association with the party. Based on the way the applicant advanced his submissions, the particular concern identified by the Tribunal at [137] that the applicant impugned in his submissions is that:
While [N], [Q] and [A] mentioned the applicant being engaged in social activities in Pakistan, none mentioned him being the president of a political or social party such as might suggest an organisation of recognised social standing or profile. Likewise, the applicant’s father’s statement makes no mention of the applicant’s membership or leadership of the [party]. This caused concerns regarding the credibility of claims the organisation or the applicant as president was of such stature that the applicant’s involvement placed him at ongoing risk from militants some 10 years after it ceased operating. This is particularly so given it was the applicant’s father who assisted in writing the organisation’s manifesto and funding its activities yet there was no evidence his father had been targeted for any harm due to his own involvement in funding and establishing the [party] despite remaining in the same area and in the same home in the intervening 10 years.
In considering the applicant’s submissions, I first note that I am not satisfied that the applicant has correctly identified and characterised the relevant finding of the Tribunal. As mentioned at [67] above, I am unable to locate anywhere in the Tribunal’s reasons a finding made by the Tribunal rejecting the applicant’s claim to have been president of the party. Rather, the Tribunal was prepared to accept as plausible that the applicant, with the assistance of funding from his father, established the party to promote the applicant’s interest in social welfare and initiatives. The Tribunal had noted the evidence that the applicant was the only officeholder of the party and did not reject that evidence. The Tribunal’s reasons for finding that the applicant did not face a real chance of serious harm on account of his involvement with the party, was not that he was not the president, but rather that the organisation or party itself was not of sufficient prominence or stature in the community to come to the attention of extremists or to cause the applicant to be of ongoing adverse interest and at risk of serious or significant harm if he now returns to Pakistan.
Given that I do not accept the applicant’s characterisation of the Tribunal’s findings, it follows that I cannot be satisfied of most of the other submissions advanced by the applicant in relation to this issue. I do, however, make some observations.
First, the applicant’s submission again in part expresses disagreement with the Tribunal’s decision and asks the Court to review the merits of the Tribunal’s decision. Disagreement with a decision is not, of itself, sufficient to establish jurisdictional error and the Court has no power to conduct merits review of the Tribunal decision.
The applicant’s submissions also address the approach that the Tribunal took to the evidence of witnesses who gave evidence on the applicant’s behalf. The applicant’s complaint is that the Tribunal did not ask his witnesses, when they gave oral evidence, about whether he was the president of the organisation. The applicant accepted in his oral submissions to the Court that the Tribunal did not have an obligation to ask his witnesses about this issue. My understanding of the complaint as advanced by the applicant is that the applicant is asserting that the Tribunal acted unreasonably in making the findings it did, without specifically asking his witnesses about this issue.
I do not accept that there is any jurisdictional error in the Tribunal decision on this basis. Again, on my reading of the Tribunal’s reasons, the Tribunal did not find that the applicant was not the president of the party because his witnesses did not raise this. Rather, I understand the Tribunal’s reasons to convey a finding that the absence of any assertion by the people who gave evidence on behalf of the applicant that the applicant was targeted because of his role within the party weighed against a finding that the applicant was targeted on that basis. There is nothing unreasonable, illogical or irrational in the Tribunal making such a finding. The applicant’s witnesses gave evidence in relation to factual matters to support the applicant’s claim that he engaged Australia’s protection obligations. It was reasonably open to the Tribunal to infer that the witnesses’ failure to refer to one of the matters that the applicant heavily relied on in advancing his claims for protection weighed against a finding that the applicant had in fact been targeted on the basis he claimed.
The matters raised in the applicant’s written submission do not establish jurisdictional error.
Further matters raised in oral submissions
There were further matters raised in the applicant’s oral submissions that have not been addressed in the consideration of his grounds and written submission.
The applicant submitted that the statements by N and Q were not taken into account and the evidence he provided was not taken into account, including evidence from the police department.
This submission is rejected. The Tribunal summarised the evidence given by N and Q at [80]-[87] of its reasons. The Tribunal considered that evidence in the deliberative stages of its reasons, including at [137] which was addressed in the applicant’s written submission. The Tribunal considered the documentary evidence provided by the applicant and, as discussed above, noted that in some places the documentary evidence was inconsistent with the applicant’s evidence. The Tribunal considered the prevalence of document fraud in Pakistan and gave little weight to some of the documentary evidence provided by the applicant. The weight to be given to the evidence was a matter for the Tribunal and does not amount to a failure to take into account that evidence.
The applicant also submitted that the Tribunal said that his organisation was not a political organisation, or was not registered, but he explained to the Tribunal that any organisation starts small. He further submitted that the party’s manifesto clearly states its aims and goals and objectives and explains how they were going to start as a political force. However, it did not get to the point of registration.
The Tribunal in its reasons did not accept on the evidence before it that the organisation was a political party or that the applicant sought to have it afforded such stature, noting that the applicant’s evidence on this point was inconsistent over time. The applicant did not provide evidence that the party was registered and does not submit to this Court that the party was ever registered. The Tribunal’s finding that the organisation was not, at the time it was active, a political party was open to it on the evidence before it.
The applicant submitted in reply that he provided to the Tribunal photographs of him in Australia meeting with visitors from Pakistan who had high public profiles (my general description) and submitted that these people would not have met with him if he did not have a significant profile. Based on a review of the court book, it appears that these photographs were provided after the Tribunal hearing in February 2022 and the submission that accompanied the photographs described them as photographs demonstrating the applicant’s involvement in social and political activities in Australia. The Tribunal considered evidence of the applicant’s political activities while in Australia at [164] of its reasons, noting that the applicant had been engaged in community fundraising activities in Australia and has worked at a supporter level on local political campaigns. The Tribunal found, based on country information, that if the applicant were to engage in such activities in Pakistan, it would not give rise to a significant political profile and would not place him at real risk of significant harm from extremists. The Tribunal noted that the applicant had not indicated any intention to engage in activities which would place him at a real risk of serious or significant harm.
I am unable to locate any claim before the Tribunal that the simple fact that people from Pakistan with high public profiles met with the applicant while he was in Australia indicated that he would have a significant adverse profile with the Taliban and this is not a claim that clearly emerges from the materials before the Tribunal. No jurisdictional error is evident based on the Tribunal’s consideration of the photographs submitted by the applicant.
The matters raised by the applicant in his oral submissions do not establish jurisdictional error.
CONCLUSION
The applicant has not established that the Tribunal made a jurisdictional error in reaching its decision. His application for judicial review is therefore dismissed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 May 2024
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