CCV15 v Minister for Immigration
[2018] FCCA 83
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCV15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 83 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal was unreasonable – whether the Tribunal correctly applied the relocation principle – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 |
| Applicant: | CCV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2822 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 15 August 2017 |
| Date of Last Submission: | 15 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondents: | Mr R White of Mills Oakley Lawyers |
ORDERS
The application made on 16 October 2015 and amended on 18 January 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2822 of 2015
| CCV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 16 October 2015, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 18 January 2016, seeking review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), which, on 22 September 2015, affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of the applicant, made on 18 January 2016 which annexes a transcript (“T”) of the hearing before the Tribunal.
Background
The applicant is a citizen of Pakistan (CB 15). He arrived in Australia on 16 January 2014 with a visitor visa (CB 16). He applied for the protection visa on 12 February 2014 (CB 1 to CB 44 and [2] at CB 283). He was assisted by a solicitor and registered migration agent at that time. The applicant’s claims to fear harm were contained in his protection visa application (CB 21). He also provided a Statutory Declaration dated 22 August 2014 to the delegate on 25 August 2014 (CB 156 to CB 160).
The applicant claimed to fear harm because he was a Shia Muslim, and had been involved in Shia activities, including helping to organise “Moharram Juloos” (a religious gathering) (CB 21). He claimed that he was the president of a Shia community organisation called “Tehsil Pasrur” (the Tribunal noted at [13] (CB 284) of its decision record that this may have been an incorrect reference to the Imamia Student Organisation (“ISO”) which is located in Tehsil Pasrur) (CB 21). The applicant claimed that as a result of his “active religious background” and his “involvement with Shia religious and social activities” through the ISO, he was targeted by “Sunni Islamic extremists” (CB 21).
The applicant claimed that during a procession for Moharram in 2013 (at which the applicant was present), Sunni extremists associated with the organisation known as Sunni Tehreek shot at the procession (CB 21 and CB 182.5 to CB 183.3). One of the procession’s security guards fired back at the attackers, killing one of them (CB 21). The applicant claimed that the police filed a first information report (“FIR”) against him, and that he was questioned and detained by the police about his involvement in the shooting of one of the attackers (CB 21). The applicant claimed that after the incident at the procession he received threatening phone calls from the brother of the man who was killed at the procession (“AQ”) (CB 183.1). He claimed that AQ was associated with the organisation known as Sipah-e-Sahaba (“SSP”) (CB 183.2).
The applicant claimed that he was being blamed for the shooting of the attacker at the procession, and that he reported the threats by AQ to the police, but the police did not take any action (CB 21).
The applicant claimed that in November 2013 “Sunni extremists” fired at the applicant as he drove in his car. He claimed that after this attack he and his family moved to Islamabad (CB 21, CB 183.3 and [6] at CB 157).
The applicant claimed that in October 2013 he decided to visit Australia and so applied for a visa ([7] at CB 158). Then, after he received a visa in December 2013, and his family had advised him to leave Pakistan, he decided to travel to Australia ([7] at CB 158). However, the applicant’s departure was delayed until 15 January 2014, due to an accident involving his daughter (CB 181.7).
The applicant claimed to fear harm from AQ and other Sunni religious extremists. He also claimed that he had a high profile from his role with the ISO and his employment with Toyota, as a Sales Manager ([36] at CB 289).
The applicant attended an interview with the delegate on 28 August 2014 (CB 182.2). On 25 August 2014, the applicant’s representatives provided the delegate, via email, with extensive written submissions (CB 58 to CB 155). They also provided the Statutory Declaration referred to above on the same day (CB 156 to CB 160). Further submissions and various supporting documents were sent to the delegate via email from the applicant’s representatives on 4 September 2014 (CB 163 to CB 172).
On 10 September 2014 the delegate refused to grant the applicant a protection visa. The delegate found that the applicant’s claims were not credible, particularly in light of country information (CB 189.4). The delegate gave little weight to the supporting documents provided by the applicant due to the adverse credibility finding, and country information that indicated the ease by which fraudulent documents can be obtained in Pakistan (CB 190.5). Although the delegate was not satisfied that the applicant’s claims to fear harm were credible, he assessed the effectiveness of state protection in Pakistan for the applicant as a Shia Muslim. The delegate was not satisfied that the applicant would be unable to access state protection (CB 192.8 to CB 193.1). He was also not satisfied that the applicant was unable to relocate within Pakistan to avoid harm (CB 193.7).
The applicant applied for review to the Tribunal on 18 September 2014 (CB 198 to CB 199). He was assisted by the same migration agent (CB 199). The applicant and his representative attended a hearing before the Tribunal on 25 August 2015 (CB 211 to CB 213). The Tribunal recounts what occurred at the Tribunal hearing at [26] (at CB 287) to [48] (at CB 292) of its decision record. The applicant confirmed before the Tribunal that his claims to fear harm were based around his religion, and religious activities, rather than political aspects ([26] at CB 287).
On 8 September 2015, the applicant’s representative sent an email to the Tribunal attaching a statement from the applicant addressing concerns raised by the Tribunal at the hearing (CB 228 to CB 231). The email also attached written submissions dated 4 September 2015 (CB 232 to CB 277).
The Tribunal affirmed the delegate’s decision on 22 September 2015, and the applicant was notified by letter sent by email to his representative authorised to receive correspondence on his behalf on 23 September 2015 (CB 278 to CB 302).
The Minister’s written submissions, filed on 3 August 2017 contain an accurate summary of the Tribunal’s decision. I adopt the relevant paragraphs (except those parts of [25] which provide the Minister’s view of the Tribunal’s decision) for the purpose of this judgment
([13] - [25] of the Minister’s written submissions):
“[13] On 22 September 2015, the Tribunal affirmed the delegate’s decision (CB 282-302). The Tribunal accepted the applicant was a Pakistani citizen and his identity was as claimed (CB 294, [54]), but was not satisfied that aspects of his claims and evidence were credible (CB 294, [55]). The Tribunal accurately summarised the applicant’s claims (CB 294, [56]) and noted that at the hearing he claimed to fear harm in Pakistan from the Taliban, AQ (Sunni Tehreek), the SSP and the spread of ISIS (CB 295, [59]).
[14] The Tribunal expressly noted the applicant did not claim that he actually engaged in any political activities as such in Pakistan but that his activities with the ISO involved religious and social welfare activities in the broader Shia community. The Tribunal also noted the applicant had stated that he did not attend a mosque in Pakistan or Australia (CB 294, [57]). In addition, the Tribunal noted the applicant’s fear of harm in Pakistan centred on the claimed incidents on 12 and 13 November 2013 and, whilst he referred generally to other incidents, he did not claim he had been at risk of harm on any other occasion (CB 295, [58]).
[15] The Tribunal set out the applicant’s claims, evidence and submissions about the 12 and 13 November 2013 events, and noted the applicant had claimed there was no media coverage of the events because they occurred in a small town and did not attract media coverage (CB 295-296, [60]-[63]). It also referred to country information that indicated (amongst other things) there was a low risk of sectarian violence for Shias by militant groups in Pakistan, overall levels of generalised and sectarian violence were lower in the Punjab relative to the rest of Pakistan and there had been infrequent incidents of violence against members of the ISO (CB 296, [64]). The Tribunal also considered country information referred to in the delegate’s decision (CB 296,
[65]-[66]).
[16] The Tribunal found there was extensive coverage of sectarian violence in Pakistan and it was reasonable to believe that the claimed attack on the procession on 12 November 2013 would have received some media coverage or reporting. It noted the applicant was unable to point to any media coverage. The Tribunal also found the applicant’s evidence and country information indicated that the Pakistani authorities provided protection ‘where possible to Muharram processions’. It found it was reasonable to expect that an incident involving an attack on a procession by people with rapid fire or automatic weapons in which an attacker was killed and people were injured would have received some media attention or publicity, particularly given the ‘heightened security concerns’ surrounding such processions and the numerous incidents that had been referred to in the applicant’s written submissions. The Tribunal also considered the applicant’s claim that the brother of the attacker reported the incident to the police and, as a consequence, the applicant was detained and questioned about the incident before being released. The Tribunal ‘did not accept as credible’ that the applicant would have been detained and questioned given his involvement in a procession that was receiving police protection and was attacked and one of the attackers was killed (CB 297, [67]).
[17] The Tribunal considered the applicant’s evidence about the claimed timing and sequence of events on 12 and 13 November 2013. It noted the FIR was filed at 12 PM on 12 November 2013 and the applicant had claimed that before this occurred he had complained to the police earlier that day about a threatening phone call, the procession occurred, the shooting occurred and a person had been killed. It did not believe the applicant’s claims about these events were credible and found the applicant was not a credible witness (CB 297, [68]).
[18] The Tribunal also did not accept it was credible that AQ would have complained to the police in the circumstances referred to by the applicant and where the police were providing protection to the procession that was attacked. It noted the applicant had claimed AQ was associated with Sunni Tehreek and that organisation was associated with the SSP. The Tribunal noted DFAT information indicated the SSP was a designated terrorist organisation and it did not accept it was credible that AQ would lodge a complaint with the police about the claimed shooting on 12 November 2013 in which he claimed his deceased brother ‘was associated with the Sunni movement’ (CB 297-298, [69]).
[19] Accordingly, the Tribunal did not accept the applicant’s claims that: he was questioned and detained about the shooting incident on 12 November 2013; he was able to escape without injury from the claimed shooting incident on 13 November 2013 when four people on two motorbikes allegedly attacked his car; the procession was attacked on 12 November 2013; the applicant received threatening phone calls before the procession or after his release on 12 November 2013; or the applicant’s car was attacked on 13 November 2013. The Tribunal found the lack of any media publicity of the claimed 12 November 2013 attack and the available country information supported its conclusions (CB 298, [69]).
[20] On the basis of its concerns with the applicant’s credibility and DFAT country information that indicated documentary fraud was prevalent in Pakistan, the Tribunal did not ‘place any evidentiary weight’ on the information reports the applicant provided in corroboration of his claims about the alleged 12 November 2013 events (CB 298, [69]). The Tribunal accepted that: the applicant was involved with the ISO; the organisation in Pasrur had 15 members; he was elected president of that group in 2012; and he was involved in organising Muharram processions in that role. However, it did not accept that the procession in November 2013 was attacked as he had claimed (CB 298, [70]).
[21] On the basis of his evidence, the Tribunal found the applicant was not involved in any other religious activities or duties associated with any mosque. It also noted he did not claim that he was involved in any broader political activities other than those with the ISO, which he said had no political aspect. The applicant also said he ‘was not a high profile leader’ and the police had not helped him in the past. The Tribunal raised its concerns with the applicant that he did not appear to have a religious or political profile (apart from the student organisation) that would place him at risk of harm, particularly as the country information indicated ‘there was a moderate risk of sectarian violence for the leaders of both Shia and Sunni militant and political groups’. The Tribunal found the applicant’s role as a president of a student group with 15 members did not indicate that he had a risk profile supported by the country information. Nor did it accept that he had any profile because of his employment with Toyota or that such work had any religious or imputed political aspect. It noted the applicant had not claimed that he ever suffered any harm as a result of his employment and did not accept that he had a well-founded fear of persecution on the basis of his involvement with the student organisation or his employment with Toyota (CB 298-300, [71], [73]).
[22] Despite its comprehensive findings about the applicant’s claims and its assessment of his credibility, the Tribunal proceeded to consider whether the applicant ‘could avoid a real chance of serious harm by relocating in Pakistan’ (CB 299-300, [72]-[73]). The Tribunal expressly considered the applicant’s claims and submissions about why he could not undertake relocation namely, the risk of harm from Sunni extremists and violence against Shias and the unwillingness or inability of the Pakistani authorities to protect Shias. The Tribunal noted the applicant’s ability to maintain his employment in the car sales industry since arriving in Australia and his past willingness to travel for work in Pakistan when working in different car dealership positions. It noted the applicant had never claimed to have experienced any harm whilst working in the industry or travelling to his employment, and that his claims of harm were confined to the claimed incidents on 12 and 13 November 2013. The Tribunal found two DFAT reports (cited earlier at
CB 288-291, [30], [39]-[44]) indicated that due to Pakistan’s size and diversity internal relocation offered a degree of anonymity and options for members of religious and ethnic minorities to relocate to areas of relative safety within Pakistan. The Tribunal also noted the applicant’s evidence that he relocated to Islamabad with his family after the claimed 13 November 2013 incident.
[23] Having regard to the applicant’s claims and submissions and the accepted information in the two DFAT reports, the Tribunal found ‘that relocation would be a viable and alternative option for the applicant if he faced harm in Pasrur district in Sialkot should he return to Pakistan’. In support, the Tribunal relied on the applicant’s previous relocation to Islamabad with this (sic) family without difficulty and the applicant’s continued employment in the car sales sector in Australia and Pakistan and the absence of any reason why he would be unable to pursue this in the future. It found the applicant’s past activities with the ISO did not give him a risk profile and that if he engaged in the same type of activities with the ISO in [the] future he would not face a real chance of serious harm (CB 300, [73]).
[24] Having considered his claims singularly and cumulatively and assessing his claims, evidence and submissions with the available country information, the Tribunal did not accept that the applicant faced a real chance of serious harm as a Shia Muslim living in Pakistan. Nor did it accept that he faced a real chance of serious harm as a member of such particular social groups as: Shia Muslims involved in a student organisation that organised Shia religious processions and who could be imputed with having an imputed political opinion of being opposed to the Taliban; members of the Shia student organisation (the ISO); or wealthy and educated Shia people in Pakistan. The Tribunal found the country information did not support the applicant’s claimed fear of harm on these bases. Specifically, it found the country information indicated there were infrequent incidents of violence against members of the ISO and the Pakistani authorities demonstrated a willingness to protect Shia communities (CB 300-301, [74]). For these reasons, the Tribunal did not accept the applicant faced a real chance of serious harm in Pakistan or that he was a refugee (CB 301, [74]).
[25] On the basis of its assessment of his claims and evidence, the Tribunal was also not satisfied the applicant faced a real risk of being subjected to any form of harm that met the definition of torture in s 5(1) of the Act. Nor was it satisfied that the applicant faced a real risk of being subjected to intentionally inflicted severe pain or suffering or pain and suffering capable of constituting cruel or inhuman treatment or punishment; that he would suffer harm constituting degrading treatment or punishment by being subjected to an act or omission intended to cause extreme humiliation that is unreasonable; or faced a real risk of being arbitrarily deprived of his life or faced the death penalty (CB 301, [75])…”
[Footnotes omitted.]
Before the Court
The applicant appeared before a Registrar of the Court on 26 November 2015 and 3 March 2016. By orders made by consent on 26 November 2015, amongst other things, the applicant was given the opportunity to file any amended application. The applicant did so on 18 January 2016. By orders on 3 March 2016, the matter was set down for final hearing before me on 15 August 2017, and both parties were required to file written submissions prior to the hearing. The Minister filed written submissions on 3 August 2017. The applicant filed no written submissions.
At the hearing on 15 August 2017, the applicant appeared in person. He confirmed that he did not need the assistance of an interpreter. He also confirmed that he relied on the grounds of his amended application. The applicant requested an adjournment of the final hearing to allow him to arrange to have documents “certified” by the authorities in Pakistan. It appeared that the documents were related to his claimed circumstances in Pakistan. The application for an adjournment was opposed by the Minister.
I refused the application for an adjournment on the basis that the documents, even if “certified”, were not relevant for the Court’s purpose, being the judicial review of the Tribunal’s decision. It is trite to say that the Court cannot substitute its own findings of fact for those of the Tribunal. The Court has no power to grant the applicant a protection visa. In any event, there was no evidence before the Court to show that the documents were before the Tribunal.
The applicant also explained that he sought an adjournment so that he could arrange for a solicitor to “look [at] all the documents and he can find something for me”. In essence, the applicant sought more time to obtain legal assistance in relation to documents which went to the issue of whether he should be granted a protection visa. This is not a relevant consideration before the Court, and does not provide a basis to grant any adjournment.
Further, for the sake of completeness, I note that the applicant also stated (from the bar table), that he did not seek further time from the Tribunal for the purpose of providing these documents to it. This was in circumstances where the Tribunal gave him the opportunity to make further submissions after the Tribunal hearing (T57 line 11 to 13).
The Application to the Court
The grounds of the amended application to the Court are in the following terms:
“[1] The Tribunal made procedural error in paragraph 45 while not accepting my genuine evidence to be a truth or a credible witness. However, the Honourable Court can review my Transcript of Proceedings and note that there is no inconsistency or implausibility during my interview.
[2] The Tribunal made procedural error in paragraph 46 stating that I can relocate anywhere in Pakistan. However, the Taliban and anti-Shia elements are well contacted and they are able to trace members of the Shia community with ease.
[3] The Tribunal shows unreasonableness in paragraph 48 about the lack of publicity on the attack in question. There are many attacks on the Shia Imam Bargah and the processions and on the general Shia community for this reason the media can report only those incidents which are of major significance. The attacks on the Shia community are so common that media is unable to report each and every incident.
[4] The Tribunal again shows unreasonableness in paragraph 57 while not considering and accepting my explanation about my association with Imamia Student Organisation (ISO). The ISO youth organisation of the Shia community is a primary target of the anti-Shia elements. The Tribunal has made error when considering this organisation as just welfare organisation
[5] I strongly believe that I am a Refugee according to Convention. I have well-founded fear of being persecuted for Convention related reasons.
[6] I strongly submit that I do not agree with the decision of the Tribunal. I strongly believe that if I go back to Pakistan under these circumstances, I will be killed.
[7] I kindly request the Honourable Court to kindly set aside the AAT's decision of dated 22 September 2015.”
[Errors in original.]
Consideration
In essence, ground one asserts the Tribunal fell into “procedural error” at [45] (at CB 291 to CB 292) of its decision record because it did not accept the applicant’s evidence and found he was not a witness of truth. Ground one also invites the Court to “review” the transcript of the Tribunal hearing and to then “note” that there was no “inconsistency or implausibility” in his evidence.
Before the Court, the applicant did not point to any particular part of the transcript of the Tribunal hearing to support the complaint. It appeared that he wanted the Court to read the entire transcript.
It is to be noted that [45] (at CB 291 to CB 292) of the Tribunal’s decision record is a part of the Tribunal’s summary of what occurred at the hearing. The applicant had claimed to fear harm in Pakistan. He had claimed that certain incidents had occurred on 12 and 13 November 2013, involving religious processions by Shias who became the target of Sunni extremists.
The Tribunal records that at the hearing, it raised concerns it had with the applicant’s claims about the incidents on 12 and 13 November 2013 with the applicant. The Tribunal’s concerns were that notwithstanding that the applicant claimed to have a well-founded fear of harm, he had not raised any other incidents in support of this claim.
Further, the Tribunal notes that it raised with the applicant that there was no media coverage of the claimed attacks, despite there being extensive media coverage of other incidents. The transcript of the Tribunal hearing reveals that the applicant was questioned about this.
The Tribunal noted that the applicant did not claim to have any “significant religious profile” ([45] at CB 291 to CB 292). It also noted that it raised its concerns with the applicant regarding country information that indicated that document fraud was prevalent in Pakistan.
Importantly, there is nothing at [45] (at CB 291 to CB 292) of the Tribunal’s decision record to show that in relation to the matters referred to in that paragraph, the Tribunal was concerned about inconsistencies, or implausibility, in the applicant’s evidence.
In short, [45] (at CB 291 to CB 292) of the Tribunal’s decision record is part of the Tribunal’s account of concerns that it put to the applicant at the hearing. While the Tribunal’s concerns subsequently formed the basis for its finding that the applicant’s claims about these events lacked credibility, [45] (at CB 291 to CB 292) of the Tribunal’s decision record, of itself, does not reveal any jurisdictional error.
Even when [45] (at CB 291 to CB 292) of the Tribunal’s decision record is read, as it must be, in the context of the Tribunal’s subsequent findings, those findings were reasonably open to the Tribunal to make on what was before it. In essence, ground one seeks to cavil with the Tribunal’s reasoning and its adverse credibility findings in relation to the applicant’s claims. It seeks impermissible merits review. Ground one is not made out.
I note that even after reading the transcript of the Tribunal hearing, as invited to do so by the applicant, no jurisdictional error as asserted in the ground, is found. This is because the Tribunal did not rely on any inconsistency in his evidence. That certain aspects of his claims were “implausible”, may be in part inferred from the Tribunal’s finding as to a lack of credibility in those claims. However, the Tribunal’s concerns and its subsequent findings were reasonably open to it on what was before it. The Tribunal’s questions at the hearing, and its subsequent analysis, were appropriately directed to the issue as to the risk of harm to the applicant if he were to return to Pakistan.
Ground two asserts the Tribunal made “procedural error” at [46] (at CB 292) of its decision record, in stating that the applicant could “relocate anywhere in Pakistan” to avoid harm.
Again, [46] (at CB 292) of the Tribunal’s decision record, is part of the Tribunal’s account of what occurred at the Tribunal hearing. At [46] (at CB 292) of its decision record, the Tribunal set out submissions made by the applicant’s representative. Paragraph 46 does not represent any findings made by the Tribunal. Further, it does not appear that ground two seeks to challenge the submissions made to the Tribunal by the applicant’s representative. Therefore, as pleaded, ground two is not made out.
It may be that the applicant’s ground seeks to assert error in the Tribunal’s subsequent finding that he could relocate elsewhere in Pakistan. If that is the case, then there are two answers to any such complaint.
First, the Tribunal found that the applicant’s claims to fear harm were not well-founded (see at [71] at CB 298 to CB 299 and the reasons for this finding at [57] at CB 294 to CB 295 to [70] at CB 298). I cannot see any legal error in the Tribunal’s conclusion, or the findings that informed it. The Tribunal’s findings were reasonably open to it to make on what was before it. On this basis, it was not necessary for the Tribunal to then go on and consider the matter of relocation (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”), Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 and SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (“SZATV”)).
In these circumstances, even if some legal error could be found in the Tribunal’s relocation findings, this would not assist the applicant now. The Tribunal’s finding on the absence of a well-founded fear of persecution stands as an independent basis on which to affirm the delegate’s decision (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]).
Second, and in any event, I cannot see legal error in the Tribunal’s assessment of the question of relocation (see at [72] at CB 299 to [73] at CB 299 to CB 300).
It is not clear why the Tribunal proceeded to consider relocation. Its finding that the applicant’s fear of harm was not well-founded, was not made on the basis of any doubt by the Tribunal as to the strength of its finding. Nonetheless, no legal error is revealed simply because the Tribunal did proceed to consider relocation.
The applicant claimed to fear harm from extremists in Pakistan (“Sunni extremists” including the Taliban and anti-Shia elements). The Tribunal considered the applicant’s claims in this regard (see at [73] at CB 299 to CB 300). The Tribunal’s approach was consistent with relevant authority (SZATV).
That is, the Tribunal considered whether it was reasonable in the circumstances for the applicant to relocate. The Tribunal understood and applied the relevant approach, that what is reasonable, in the sense of practicable, depends upon the particular circumstances of the applicant, and the impact upon him. Further, the Tribunal dealt with all of the applicant’s objections to relocation (SZMCD, MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 and MZACX v Minister for Immigration and Border Protection [2016] FCA 1212). Ground two is not made out.
Ground three asserts that the Tribunal’s decision was unreasonable at [48] (at CB 292) of its decision record in taking into account the “lack of publicity on the attack” on 12 November 2013. The ground asserts that there are many attacks on the Shia community, and that they are so common that the media can only report on the incidents of “major significance”.
Again, [48] (at CB 292) of the Tribunal’s decision record is part of its account of what occurred at the Tribunal hearing. However, even if the applicant’s ground is to be understood as taking issue with the Tribunal’s finding as to the available media reports (or lack thereof), no legal error is revealed.
It is not clear whether the complaint now raised by his ground (that attacks are common and the media does not report all of them) was raised by the applicant before the Tribunal. The applicant did refer at the Tribunal hearing to “no [media] coverage” in “small towns” and “remote area[s]” (see T41 line 47 to T43 line 35). This is not in the terms as set out in the ground of the application to the Court. In any event, the Tribunal provided the applicant, and his representative, with the opportunity to provide written submissions in relation to any concerns that arose at the hearing (T57 line 11 to line 13 and [49] at CB 292). The representative made written submissions and the applicant provided further written comments ([50] at CB 292).
The written submissions did refer to media reports which were said to support the proposition that Shias were persecuted in Pakistan. The Tribunal acknowledged this in its decision record ([52] at CB 293 to CB 294 to [53] at CB 294). The Tribunal did consider the applicant’s submissions in this regard (see [61] at CB 295 and [67] at CB 297). In particular, I note the Tribunal’s analysis in the context of the evidence otherwise before it ([64] at CB 296 to [67] at CB 297).
Specifically, at [67] (at CB 297), the Tribunal found that in relation to the incident of 12 November 2013, “[t]here was no media coverage or reporting of the incident that the applicant was able to refer to before the Tribunal” (CB 297.3).
What the Tribunal stated at [48] (at CB 292) and later found at [67] (at CB 297) of its decision record, does not establish unreasonableness in the Tribunal decision. As the Minister submitted, the conclusion that it was reasonable to believe that an incident of the type asserted by the applicant would have some media coverage did not lack an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at [76]).
On the evidence before the Tribunal, the Tribunal’s finding was reasonably open to it. The Tribunal’s relevant reasoning and its finding was a matter about which “reasonable minds might differ” (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131]). In all, ground three is not made out.
Ground four similarly asserts “unreasonableness” on the part of the Tribunal. The ground directs attention to [57] (at CB 294 to CB 295) of the Tribunal’s decision record. The contention is that the Tribunal did not consider and accept the applicant’s explanation about his association with the ISO. The ground asserts that the ISO is a “primary target of the anti-Shia elements” in Pakistan. The complaint is that the Tribunal made an error in considering this organisation to be “just [a] welfare organisation”.
The applicant’s ground misunderstands the Tribunal’s reasoning and findings at [57] (at CB 295) of its decision record. The Tribunal set out its understanding of the applicant’s claim as follows. His claims arose from his claimed religious activities as a Shia Muslim. He did not claim to have actually engaged in any political activities. The applicant’s activities with the ISO involved religious and social welfare activities in the broader Shia community. He did not attend a mosque in Pakistan or in Australia.
The applicant’s ground misunderstands that the Tribunal’s actual finding was that his claim to fear harm arose from his limited activities with the ISO. This was not a finding about the ISO itself being “just [a] welfare organisation”.
The applicant did not point to any evidence to say that the Tribunal misunderstood his evidence in this regard. Nor on the evidence before the Court, can I see that any such assertion could be made out.
The applicant’s evidence before the Tribunal was that the ISO was concerned with religious activities and social welfare activities (T8 line 30 to T9 line 30). The Tribunal’s understanding that this was the extent of the applicant’s claimed activities in Pakistan arose from his own evidence to it.
At best, the applicant’s ground seeks to cavil with a finding of fact made by the Tribunal which was reasonably open to it on what was before it. No unreasonableness is made out in the circumstances.
Grounds 5, 6 and 7 do not assert any jurisdictional error on the part of the Tribunal. The grounds in essence seek impermissible merits review.
The grounds of the application do not reveal jurisdictional error. Nor is jurisdictional error evident on the material before the Court. The Tribunal considered all of the applicant’s claims to fear harm. There is nothing to show that it misunderstood his claims. The Tribunal assessed the applicant’s evidence, and its adverse credibility findings about some of his claims were reasonably open to it on what was before it.
The Tribunal relied on certain country information about Shia Muslims in Pakistan, and the risks of sectarian violence and the prevalence of document fraud. It was for the Tribunal to decide the relevance of such material and accord weight appropriately (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [151], NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 at [63], Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27], SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 at [62], Aporo v Minister for Immigration & Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] and MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133; (2015) 234 FCR 154 at [19]). Ultimately, the Tribunal’s conclusion and the findings of fact that informed it, were all reasonably open to it.
Conclusion
Absent jurisdictional error in the Tribunal’s decision, the application to the Court is to be dismissed. I will make the appropriate order.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 January 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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