BLW15 v Minister for Immigration

[2017] FCCA 464

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLW15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 464

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in failing to consider an expert psychologist’s report – whether the Administrative Appeals Tribunal failed to consider all claims articulated by the applicant – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474.
Migration Regulations 1994 (Cth), reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

First Applicant: BLW15

Second Applicant: BLY15

Third Applicant: BLZ15

Fourth Applicant: BMA15

Fifth Applicant: BMB15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2035 of 2015

Judgment of: Judge Emmett

Hearing date: 13 March 2017

Date of Last Submission: 13 March 2017

Delivered at: Sydney

Delivered on: 13 March 2017

REPRESENTATION

Solicitors for the Applicant: Michael Jones (Parish Patience)

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Brooke Griffin (Australian Government Solicitor)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2035 of 2015

BLW15

First Applicant

BLY15

Second Applicant

BLZ15

Third Applicant

BMA15

Fourth Applicant

BMB15

Fifth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 23 June 2015 (“the Tribunal”).

2. The first applicant claims to be a citizen of Pakistan and of Shia Muslim faith, who fears harm from the Pakistani Taliban (“the Applicant”). The second applicant is the spouse of the Applicant, who is included in the Applicant’s application as a member of the same family unit. The third, fourth and fifth applicants are the children of the Applicant and the second applicant and they are also included in the Applicant’s application as members of the same family unit.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 19 May 2013, the Applicant arrived in Australia having departed legally from Pakistan on a passport issued in his own name and a visitor visa issued on 2 April 2013.

2. On 22 July 2013, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 6 April 2014, the Delegate refused the Applicant’s application for a protection visa.

4. On 14 April 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 23 June 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 22 July 2015, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of his protection visa application in which he stated:

   a)He is a Shia Muslim, a preacher of Shia Islamic practices and a well-known religious poet, who has delivered his poetries at various religious forums since 2009.

   b)He was a member of the managing committee of Hussainia, which is one of the most prominent and prestigious Imambargahs in Karachi. He was entrusted with organising prayers and various event managing duties at Hussainia.

   c)From September 2012, he started to receive phone calls from unknown sources. These callers want him to stop spreading his religious views. Despite these threats, he continued to deliver his poems at religious forums. However, as he received more phone calls, he restricted his children’s movement and stopped going to some events.

   d)On 8 November 2012, a note was left on the gate of his home which threatened his family’s safety. He took the note to a police station, but the police did nothing.

   e)On 4 March 2013, the Pakistani Taliban detonated a bomb near his residence and some of his friends were killed in the incident. He was diagnosed with depression after the incident.

   f)On 19 March 2013, his teacher was killed by the terrorists. He decided to come to Australia because he feels Pakistan is not safe.

   g)On 4 April 2013, he was attacked by four men after his evening prayer. They left him unconscious on the street and he lost his wallet. He did not report the incident to the police as he thought they were incompetent.

   h)On 20 April 2013, he was informed that his life was in danger by the Imambargah.

   i)After he received his visa to come to Australia, he put his personal effects in order and then bought the cheapest tickets to come to Australia

   j)On 15 May 2013, he went with a friend to pick up his wallet from the Imambargah. After his prayer, he was pulled into a lane by three men. His friend saw it and called for help and the three men fled. He lodged a police report following the incident.

   k)He came to Australia on 19 May 2013 and met with a lawyer from Parish Patience on 20 May 2013.

   l)He cannot go back to Pakistan because he will be killed by Sunni extremists.

The Delegate’s decision

1. On 22 November 2013, the Applicant attended an interview with the Delegate.

2. The Delegate accepted that the Applicant is a Shia Muslim who has lived in the West. The Delegate further accepted that the Applicant had an interest in poetry and recited his poems at various religious forums.

3. Further, The Delegate did not accept that the Applicant has an actual or imputed political opinion which has come to the attention of the Taliban. The Delegate also did not accept that the Applicant was a well-known Shia preacher in Pakistan. Further, the Delegate did not accept that the Applicant held a particular political opinion against the Taliban and other Sunni Islamic extremists.

4. On 6 April 2014, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 14 April 2014, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 5 February 2015, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 2 April 2015 to give oral evidence and present arguments.

3. On 27 March 2015, the Applicant’s migration representative provided further submissions in support of the applicant’s review application.

4. On 30 March 2015, the Applicant’s migration representative provided a Statutory Declaration of the Applicant dated 28 March 2015 as well as various other supporting documents to the Tribunal.

5. On 2 April 2015, the applicant attended the Tribunal hearing and gave evidence.

6. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

7. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.

8. The Tribunal found the Applicant was not a witness of truth.

9. The Tribunal noted that the Applicant’s oral evidence with respect to the two alleged incidents on 4 April 2013 and 15 May 2013 was substantially inconsistent with his written claims. The Tribunal noted that as these incidents occurred two years ago, the applicant could reasonably be expected to give a consistent account of what actually happened on these occasions.

10. Further, the Tribunal was concerned about the Applicant’s claim that the Imambargah had only begun their investigation after 4 April 2013. The Tribunal noted the applicant’s explanation but found them to be unconvincing. In particular, the Tribunal noted that if the Applicant’s claims about his importance in the community and the various telephone threats in September 2012 were true, it was inconceivable that the Applicant’s Imambargah only start investigating the matter after the alleged incident on 4 April 2013 had occurred. Accordingly, the Tribunal found the Applicant’s evidence in this regard to be unsatisfactory and unconvincing.

11. The Tribunal noted the Applicant’s evidence that he had organised and attended a very important religious ceremony held for the Applicant’s deceased teacher on 28 April 2013. However, the Tribunal found it hard to believe that the Applicant’s Imambargah would request the Applicant to arrange the ceremony given that the Applicant was attacked on 3 April 2013.

12. Further, the Tribunal was concerned about the Applicant’s conduct after his decision to leave Pakistan in March 2013. In Particular, the Tribunal found it hard to believe that the Applicant would continue to participate in religious ceremonies up until 3 April 2013. The Tribunal also found it difficult to accept that the Applicant would attend the religious ceremony on 28 April 2013.

13. The Tribunal had concerns about the Applicant’s evidence that the central Imambargah demanded the Applicant to collect his wallet in person and put him at risk of being attacked. The Tribunal found the Applicant’s evidence in response to be unpersuasive.

14. In assessing the Applicant’s credibility, the Tribunal noted a psychologist’s report dated 21 April 2015. The Tribunal noted the psychologist’s assessment that the Applicant has memory impairment and was suffering from high level of anxiety and depression. However, the Tribunal noted that during the Tribunal hearing, the Applicant appeared to be capable of understanding and answering the Tribunal’s questions. The Tribunal concluded that the Applicant’s psychological conditions did not adequately explain the credibility concerns the Tribunal had in relation to the Applicant’s evidence.

15. The Tribunal also considered the various documents the Applicant provided in support of his review application. The Tribunal accepted that the Applicant is a Shia poet and an event organiser for his Imambargah. The Tribunal also accepted that the Applicant read his poems at various religious ceremonies. The Tribunal further accepted that the Applicant’s father-in-law is a well-known Shia scholar.

16. However, the Tribunal did not accept the doctor’s certificates from Pakistan, the police report, the letters from his Imambargah and other letters, which assert the Applicant was in danger in Pakistan. The Tribunal declined to give any evidentiary weight to these documents as they did not overcome the Tribunal’s concern over the Applicant’s credibility.

17. The Tribunal accepted that according to country information, there is some level of sectarian violence in Pakistan and prominent political, religious and business figures have been victims of targeted killing. The Tribunal found that religious extremists would be unlikely to target a person with the Applicant’s profile. Further, the Tribunal found the likelihood of the Applicant suffering serious harm due to random sectarian violence in Pakistan to be remote. The Tribunal also considered  whether the Applicant would be harmed in Pakistan due to him spending time in Australia and found that he would not.

18. Having considered the Applicant’s claims, the Tribunal found that there was no evidence to support a finding that the Applicant would suffer harm for a Convention related reason were he to return to Pakistan, that the Applicant did not have a well-founded fear of persecution in Pakistan and for this reason the Applicant was not a person to whom Australia owed protection obligations.

19. The Tribunal also considered whether the Applicant met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that the Applicant would be harmed in Pakistan due to his religious belief. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Pakistan, there is a real risk that the applicant would suffer significant harm.

20. Accordingly, having determined that the Applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was represented before this Court by his solicitor, Michael Jones. By consent, the Applicant was given leave to file in Court and rely upon an Amended Application identifying the following Grounds:

   “1. The Tribunal in assessing the credibility of the applicant failed to consider relevant considerations.

   Particulars

   The member failed to adequately take into account of the finding of the expert Psychologist’s report prepared by Associate Professor Amanda Gordon after undertaking the psychometric test that the applicant’s mental state was confused and abnormal. The Tribunal should have taken this into account in its own assessment of credibility (paras 116 and 122 of the RRT decision).

   2. The Tribunal failed to consider relevant considerations and claims articulated by the applicant in his statement and submissions.

   Particulars

   The applicant gave the following reasons for claiming that he would be targeted and may be killed by Sunni Islamic fundamentalists:

   a. I am a practising Shia.

   b. I am not an ordinary Shia follower. I am a Shia preacher who recites and promotes Shia Islamic principles.

   c. In addition to that, I am a well-known poet who writes poems on Shia Islamic principles.

   d. My family and I have always actively Participated in Moharram ceremonies and we also voluntarily acted as security guard during the processions. My wife and my children also active of Imambargah.

   e. I am a leader of my congregation.

   f. I am a close associate and student of the late Sibt-e-Jaffer.

   The Tribunal failed to give any consideration to points b or d.”

Ground 1

1. Ground 1 asserts that the Tribunal failed to adequately take into account the finding of an expert psychologist who undertook psychometric tests leading to her conclusion that the Applicant’s mental state was confused and abnormal. Ground 1 asserts that the Tribunal should have taken this into account in its own assessment of the Applicant’s credibility.

2. Mr Jones, the Applicant’s solicitor, summarised the conclusions based on the results of formal memory and intellectual tests conducted at the direction of the psychologist as follows:

   “The Applicant became distressed, sweaty and unable to look at faces in a test involving facial recognition, this being “only one example of [his] emotional distress disrupting his cognitive (especially memory) functioning”.

   He “had difficulty recalling facts in the delayed subtests”

   “Clinical assessment revealed a man who is suffering from severe levels of anxiety and depression, and who is extremely stressed”.

   “Psychological assessment suggests that [he] [...] is now impaired cognitively, almost certainly as a result of his emotional state”.

   There had been an impact on his cognitive function and his memory was impaired.

   He continues to have “memory lapses” and to “function uncharacteristically poorly when in a stressful situation”.”

3. Mr Jones conceded that the Tribunal gave a reasonably accurate summary of the psychologist’s assessment at paragraphs 64 to 66. However, Mr Jones submitted that the Tribunal incorrectly stated that the psychologist’s opinions were based on events reported by the applicant. Mr Jones submitted that the psychologist’s opinions were in fact based on the psychometric tests undertaken at the direction of the psychologist.

4. In relation to this claim I note that the psychologist’s report (obtained after the conclusion of the Tribunal hearing) was the subject of a post-hearing submission by the Applicant’s representative. In that submission, the Applicant’s representative stated that the psychologist’s report confirmed that if asked to remember past traumatic events, the Applicant would have “strong emotional responses that left him unable to access his memory appropriately.” The submission stated that was a relevant observation and submitted that due to the Applicant’s mental status at the time of the Tribunal hearing, he may have provided some inconsistent evidence, but that it should not affect his overall credibility.

5. In obtaining the Applicant’s relevant psychosocial history, the psychologist stated as follows:

   “You are familiar with (the applicant’s) history which was clearly delineated in his Statutory Declaration.

   …

   The history of the harassment and threats (the applicant) experienced in Pakistan over the years prior to his arrival in Australia in 2013 is documented in the Statutory Declaration provided (the applicant) told of the extreme fear he experienced over this time, and his belief that his life and livelihood would again be threatened if he returned to Pakistan. During 2012 and 2013 he stopped going out, could not allow his children to go outside to play, and lived in daily fear for his own and his family’s wellbeing. In particular, some of his friends were killed and he believed he was on a list. He believes that his fame, especially as a religious poet, puts him at risk wherever he lives in Pakistan, and that it is not nearly his old home that is denied him.”

6. The Tribunal noted that the representative and the Applicant claimed that because of his mental state he has given adverse evidence on certain matters. While the Tribunal noted that the psychologist stated that his mental state was based on traumatic events which occurred in Pakistan, she was not in a position to test the Applicant’s credibility about that and her opinions are based on the Applicant’s report of events.

7. While the Tribunal noted that the psychologist found impairments of the Applicant’s cognitive function, in particular, his memory, the Tribunal did not accept that such explanations were sufficient to overcome the Applicant’s inconsistent evidence. The Tribunal did not accept that the Applicant’s inconsistent evidence about occasions in which he claimed to be physically attacked were attributed to his mental state.

8. Mr Jones submitted that it was not for the Tribunal to replace the psychologist’s opinion. Mr Jones submitted that the Tribunal misunderstood what the psychological report was about and that the point of the report was to provide a psychological assessment of the Applicant based on the results of formal memory and intellectual tests as referred to in paragraph 48 above.

9. Mr Jones submitted that the Tribunal simply brushed aside the psychologist’s assessment. Mr Jones submitted that the psychologist’s findings that the Applicant suffered from stress, anxiety, cognitive impairment and memory loss were relevant to the Tribunal’s assessment of the inconsistencies in the Applicant’s evidence leading to the Tribunal’s adverse credibility findings.

10. A fair reading of the Tribunal’s decision record makes clear that, in assessing the Applicant’s credibility, the Tribunal’s reasoning gave less weight to the psychologist’s report than to its own concerns about the Applicant’s credit when assessing whether his claims concerning past events were true.

11. I do not accept that the Tribunal treated the psychologist’s assessment as if it was evidence relating to the Applicant’s factual claims. The Tribunal referred to the report in some detail and noted the opinion that the Applicant’s cognitive functioning, in particular his memory, had been disrupted by traumatic events in his life and that he was suffering from severe levels of anxiety and depression and being extremely stressed, all of which could be alleviated through out-patient therapy.

12. The Tribunal also noted the Applicant‘s Statutory Declaration in which he submitted that his depression caused him to get confused. The Tribunal noted that after a break had been taken during the hearing and when discrepancies in his evidence were put to him, the Applicant said that his blood pressure was high thereby causing him to make mistakes.

13. The Tribunal stated that it considered all this evidence and submissions, but that the Applicant appeared to be well able to comprehend the Tribunal’s questions, respond to them and participate in the hearing. The Tribunal noted that the Applicant had no difficulties with communication and giving evidence.

14. Ultimately, the Tribunal found that the Applicant’s mental state did not explain or excuse the concerns it discussed with the Applicant about his evidence. The Tribunal noted that in reaching that view it took into account all the materials provided by the Applicant. The Tribunal also did not accept the Applicant’s claims that his blood pressure at the hearing explained or excused the concerns that the Tribunal had about his credibility.

15. The Tribunal’s reasons run for 28 pages and disclose in some detail many exchanges that the Tribunal had with the Applicant about its concerns in relation to inconsistencies in his evidence and in relation to his claims generally.

16. The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.”(see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

17. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

18. In making these adverse credibility findings, the Tribunal did consider adequately the psychologist’s report insofar as it identified the Applicant’s mental state as confused and abnormal. Ultimately, as stated above, the Tribunal found that the Applicant’s mental state as described by the psychologist, not to be sufficient to overcome the Tribunal’s concerns about the Applicant’s evidence and the inconsistencies that it identified and discussed with the Applicant.

19. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal failed to take into account the Applicant’s claim that he would be targeted and may be killed by Sunni Islamic fundamentalists because he is a Shia preacher who recites and promotes Shia Islamic principles; and that the Applicant and his family were active participants in ceremonies, acted as security guards during processions and were all active members of Imambargah.

2. In support, Mr Jones referred to Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, at paragraph 152 which referred to the requirement under s.414 of the Act to consider the claims of an applicant. At [152] Allsop J stated that “to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon…the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”

3. Mr Jones referred to the Applicant’s Statutory Declaration in support of his claims where he stated that he feared if he and his family returned to Pakistan they would be targeted and may be killed by the Sunni Islamic fundamentalists for those reasons. In a Statutory Declaration prepared for the Tribunal the Applicant repeated those claims. In relation to being a “preacher” the Applicant stated that he was a Shia preacher who writes, recites and promotes Shia Islamic principles through his poetry in front of large numbers. Mr Jones submitted that the Tribunal failed to consider the risk to the Applicant as a preacher and accepted only that he is a Shia poet and event organiser.

4. However, the Tribunal referred to the Applicant’s representative’s submission that stated that the Applicant was a preacher in Pakistan involved in promoting Shia religious activity. The Tribunal noted in its reasons that the Applicant referred to his poetry at various times as preaching and singing. In particular, the Tribunal expressly stated that it had given reasons why it found that the risk of the Applicant suffering serious harm because “he is a Shia poet (which the Applicant also referred to as preaching and singing) and because he is involved in Shia religious activity (which the Tribunal is willing to accept can be seen as promoting the religion) is remote.”

5. The Tribunal accepted that the Applicant was a Shia poet and event manager at his Imambargah, had organised Shia religious ceremonies in other Imambargahs at which he also read his poetry, and had met high profile people in the Shia faith.

6. However, the Tribunal did not accept that the Applicant is known as a poet and event organiser throughout Pakistan or has a profile with non-Shias.

7. Those findings made clear that the Tribunal considered the Applicant’s claims as put to it by the Applicant that the Applicant was a poet and event organiser who preached his Islamic principles through poetry.

8. Further, the Tribunal accepted that the Applicant and his family participated in ceremonies and security. As stated above, the Tribunal ultimately rejected that he would be targeted and may be killed by Sunni Islamic fundamentalists if returned to Pakistan. It was open to the Tribunal to reject those claims made by the Applicant, as it did, on credibility grounds for the reasons it gave.

9. In the circumstances, the Tribunal considered the Applicant’s claims at put it to by the applicant. The Tribunal rejected the Applicant’s claim of past harm by Sunni extremists as not credible and found that there was no credible evidence that the applicant was of interest to extremists and that they would seek to harm him.

10. Further, I accept the submission of Counsel for the first respondent that the Tribunal does not need to specifically mention every contention made by the applicant in its reasons. There is no evidence identified by the Applicant, which if accepted might have lead it to make a different finding of fact or might establish that the Applicant had a well-founded fear of persecution for a Convention reason (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, at paragraph 604).

11. The function of the Tribunal is to respond to the case that the Applicant advances (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

12. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant and his representative at a hearing; and, had regard to all material provided in support, including the psychologist’s report and post-hearing submissions. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal also discussed with the applicant independent country information before it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 13 March 2017