CNB16 v Minister for Immigration - [2019] FCCA 1132

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNB16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1132

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal misapplied the well-founded fear of persecution test – whether the Tribunal’s decision was irrational or illogical.

Cases cited:
DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659;[2014] FCA 754
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; (1997) 48 ALD 481; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22
Sundararaj v Minister for Immigration & Multicultural Affairs [1999] FCA 76

Applicant:

CNB16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1925 of 2016

Judgment of:

Judge Riley

Hearing date:

1 February 2019

Date of last submission:

26 February 2019

Delivered at:

Melbourne

Delivered on:

1 May 2019

REPRESENTATION

Counsel for the applicant:

Doug Porteous

Solicitors for the applicant:

Esser Legal

Counsel for the first respondent:	Angel Aleksov
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

DLA Piper Australia

ORDERS

The application filed on 8 September 2016 and amended on 15 January 2019 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1925 of 2016

CNB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

The applicant’s claims

The applicant summarised his claims in his written submissions filed on 15 January 2019 as follows:
3. The Applicant is a national of Pakistan, born in Piewar Ghundi Khek (Pewar) a village in the Kurram Agency in the Federal Administered Tribal area situated approximately half … [an] hour’s drive from Parachinar, close to the Afghan border. He was born on 1 January 1991. He has never been married or in a de facto relationship. He is of Pashtun ethnicity and a Shia Muslim by religion and a member of the Turi tribe.
4. On 12 December 2012 the Applicant made a valid application for protection which outlined the Applicant’s claims. The application was based on:
• His race and religion as a Shia member of the Turi tribe
• His actual and imputed political opinion as [an] anti-Taliban pro-Westerner
•His membership of a particular social group namely ‘failed asylum seekers returned to Pakistan from Western countries’.
5. The Applicant’s claims at the AAT were set out in:
•a set of supplementary answers arising from interview prepared by Fragomen Migration agents dated 24 September 2013
•a statutory declaration dated 11 December 2012
•a submission addressed to the Tribunal dated 13 May 2016
•sworn evidence given to the Tribunal on 18 May 2016.
6. The Applicant claimed fear of harm in his home area of Kurram Agency in the form of violence directed at him as a Shia, as an ethnic Pashto and as a member of the Turi tribe. From approximately April 2007 Shia and Sunni violence escalated into serious armed attacks. Because of Pewar’s proximity to the Afghan border, the village was routinely exposed to armed attacks from Afghan members of the Taliban. [AAT decision para. 12]
7. After leaving school at year 8, the Applicant began working for his father in the family grocery business in Parachinar. The business needed to procure stock from Peshawar. The Applicant often travelled with his father on these journeys. To do so they needed to travel by Government convoy. [AAT para.12] The Applicant has six other siblings: three boys and three girls. He was the fourth-born sibling. All were born between 1986 and 2000. His youngest sibling, a brother called Sajid Hussain, suffered from a serious kidney complaint which caused him to develop kidney stones which required treatment 3-4 times a year. This meant travelling to the dangerous road linking Parachinar to Peshawar. [Court Book p.222].
8. Following local road closures enforced by the Turi Shia tribe directed at members of the Taliban, the Taliban retaliated by closing the road between Parachinar and Peshawar. [AAT para.12] Because of the youngest brother’s need for medical treatment which was available only in Peshawar, 3-4 times a year the family was forced to undertake the dangerous journey on the road linking Parachinar to Peshawar which particularly exposed them to armed by the Taliban (sic). The family was in a state of constant fear that using the road would result in death. [AAT para.12]
9. The delegate of the Minster, in a decision dated 21 October 2014, rejected the Applicant’s claim for protection. Although the Applicant could demonstrated (sic) all the necessary requirements to meet the definition of ‘refugee’ under the three separate Convention categories - religion, political opinion and membership of a particular social group (Shia Turi tribe member) (see C.B. p.152) the delegate found that because it was safe to return to parts of Pakistan other than the Kurram Agency, the Applicant could not demonstrate ‘a real chance’ of persecution and thus his fear of persecution was not ‘well-founded’. See C.B. p. 163. The delegate also found on the basis of country information the Applicant could relocate ‘elsewhere’ in Pakistan ‘eg. Islamabad or Rawalpindi’. See C.B. pp.158, 161 and 163.
10. The Applicant made application to the Tribunal to review the delegate’s decision and maintained his prior claims for protection by making the following claims:
•in 2008 his maternal cousin lost a hand and a leg to a suicide bomber attack at a pro-Shia election rally for which the Taliban claimed responsibility
•later that year the Applicant was ambushed in a forest, attacked and stabbed by members of the Taliban for which he needed medical attention
•in or around 2009 when picking up supplies for his father’s business under a government convoy, Taliban and Sunni Taliban supporters swore and abused the travellers, saying Shias should not be allowed to use ‘their’ road
•in 2012 the Applicant received threatening phone calls saying that if he was ever seen again in Peshawar he would be killed
•later in 2012 while on a trip to Peshawar with his brother who needed medical help, at a bazaar, the Applicant had a narrow escape from Taliban members who recognised him from the ambush in the forest
•he feared returning to his village because he believes he would be harassed, attacked or killed by the Taliban or other anti-Shia organisations and that in other parts of Pakistan he would be targeted by the Taliban who could recognise him as a Shia from his accent, his name and markings on his body
•he feared returning to Pakistan because of his Shia religion, his imputed political opinions opposed to the Taliban and by reason of belonging to a particular social groups namely Shia Turi tribe members who the Taliban regard as enemies
•he also feared returning home as he would be recognised by the Taliban as a person corrupted by living in the West and further that government authorities would be unable to protect him a Shia from acts [of] violence and other forms of harassment at the hands of the Taliban.

The Tribunal’s reasons for decision

The Tribunal accepted the applicant’s basic claims. However, relevantly to the grounds of review, due to inconsistencies in his claims, the Tribunal did not accept that the applicant was ambushed by three Taliban members in the forest or the claims that were consequential to that claim. The Tribunal accepted that there was generalised, sectarian violence in Kurram Agency. However, the Tribunal considered the risk to the applicant was remote.

Material relied on

The applicant relied on his amended application filed on 15 January 2019 (except grounds 1(c) and 2, which were withdrawn at the hearing) and his written submissions filed on:
a)15 January 2019;
b)1 February 2019; and
c)26 February 2019.
The Minister relied on his written submissions filed on:
a)29 January 2019; and
b)12 February 2019.

Ground 1(a)

Ground 1(a) in the application filed on 8 September 2016 and amended on 15 January 2019 (“the application”) is:
The Tribunal’s conclusion in para. 82 that the Applicant (based on various Convention reasons) does not have a well-founded fear of persecution if he were returned to Pakistan now or in the future:
(a)involves a mis-reading or mis-application of legal principle enunciated in Minister of Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, see para. 79 –
In paragraph 7 of his written submissions filed on 1 February 2019, the applicant said that he relied particularly on the following passage from Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; (1997) 48 ALD 481; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 at 191 CLR 559, 572:
… Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a

50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not asepexegetic of “well-founded”, but as a replacement or substitution for it. …
In his oral submissions, the applicant said that he relied particularly on the following passages in the Tribunal’s reasons for decision:
79. The Tribunal accepts that, while the FRC Annual Report for 2015 indicated that, overall there was a significant decline in militancy and counter-militancy related incidents in the FATA region compared to 2014, resulting in a 40 per cent decline in militant violence in the FATA region compared to 2014, and the FRC report for the first quarter of 2016 indicates that the security situation in Kurram Agency has not deteriorated, there continue to be incidents of sectarian violence in FATA. The IED attack in a clothes market in Parachinar on 13 December 2015 in which at least 25 people were killed and over 70 injured is evidence of this. The Tribunal has also considered an Express Tribune article of 18 April 2016, which reports that a terror plot involving improvised explosive devices and rockets set in a Parachinar market was defused by security forces. The Tribunal notes that the report provided on this incident indicates that security officials successfully uncovered the plot and those involved were arrested. Significantly, no reports have been provided indicating that there have been further successful large scale terror incidents in Kurran (sic) Agency since the 13 December 2015 incident. Having carefully considered the available evidence, the Tribunal considers that the weight of the evidence indicates that there has been a significant and sustained improvement in the security situation in the Kurram Agency from 2014. Despite the 13 December 2015 terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable, with the exception of incidents like those referred to in the reports by the FATA Research Centre. In this context the Tribunal considers it would be premature to conclude that the attack on 13 December 2015, the first such attack in Parachinar for almost two and a half years, marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before it concerning the security situation in the Kurram Agency, the Tribunal considers that there is not more than a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in Kurram Agency in the reasonably foreseeable future.
80. The Tribunal accepts DFAT’s assessments regarding the risk of both sectarian violence and generalised violence in the FATA and accepts that there is some level of risk to the applicant. However, the Tribunal finds on the basis of all the evidence before it that the risk to the applicant, given his profile, is remote. The Tribunal does not accept that there is a real chance that the applicant would suffer persecution at the hands of the Taliban/TTP and/or other extremist Sunni groups, and/or those who sympathise with these groups for reasons of, either separately or cumulatively, his Shia Muslim faith, his Pashtun Turi ethnicity, his actual or imputed political opinion against Sunni extremist groups and their sympathisers as a Turi Shia Muslim from the Parachinar area or as pro-West, his membership of a particular social group comprising failed asylum seekers returned from the West, or membership of a particular social group comprising Shia Turi tribe members, or for any other Convention reason, if he were to return to his home in Kurram Agency, now or in the reasonably foreseeable future.
(footnotes omitted)
At paragraphs 9 and 10 of his written submissions filed on 1 February 2019, the applicant argued that the evidence accepted by the Tribunal demonstrated that his fears were well-founded. However, that submission invited merits review. I disregard it.
The applicant then argued that the Tribunal’s use of the real chance test led it to use a “probabilistic” or mathematical approach which did not address whether the applicant, in particular, had well-founded fears.
The Minister argued that the Tribunal did not make the error alleged. The Minister drew the court’s attention to DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659; [2014] FCA 754. However, the Minister submitted that the Tribunal in the present case did not make the type of error identified in that case.
The parties were given leave to file written submissions after the hearing on the effect of DZADQ. The Minister went first. He noted the error identified at paragraph 65 of DZADQ. That paragraph is as follows:
The tribunal was satisfied that the appellant was as a Shia Muslim at risk of serious harm by reason of his religion. The tribunal however classified that risk as being too remote. In my view, the essential link in the chain of reasoning connecting the two findings was missing. Besides quoting that there are over 40 million Shia Muslims in Pakistan, the tribunal, in its published reasons, did not consider the evidence that underpinned its ultimate finding that the risk was remote. In my view, its task was not done by the numerical analysis. It should have considered the appellants’ particular circumstances. If it be the case that there is nothing to distinguish the appellant from other Shia Muslims in Pakistan, provided the country information (common to both the delegate and the tribunal) stands, it is hard to see how the conclusion of the tribunal is sustainable. If there were some small or local sectarian violence, the picture the country information indicated would not be so dramatic or compelling. To the contrary, the picture appears to be that it is coordinated, pervasive and effective, and the Taliban are presented as a cogent and broadly spread instrument of its application. It should not be adequate, in the face of such data, to say in effect that although a significant number of Shia Muslims will be severely harmed or killed by that pervasive targeted violence because you as a target group are numerous, the chances of any particular one of you being as harmed or killed is not a real one or is fanciful.
The Minister submitted that the errors in DZADQ were the failure to have regard to country information and the failure to have regard to the applicant’s particular circumstances. The Minister said that neither error occurred in the present case. The Minister said further that, in assessing risk, it is necessary to consider mathematical notions, such as the magnitude of the chance or probability of a particular event occurring.
The applicant, in reply, referred to paragraph 61 of DZADQ, which is as follows:
In my view, the reasons of the tribunal, particularly at [137] show that it did not have regard to the country information in the light of its findings. That paragraph, apart from a statistical analysis, does not disclose any reason for the general conclusion which it contains. The tribunal identified and recognised the general risks facing the appellant as a Shia Muslim in Pakistan. However, it proceeded to find that the risk is “remote” because there were over 40 million other Shias in Pakistan. There was nothing else in the tribunal’s reasons that would explain how it considered the risk to be remote besides referencing that number. This differed from the delegate’s approach, which identified those general risks against Shia Muslims, but concluded that relocation to another part of Pakistan would be a reasonable course of action to not be exposed to that risk.
The applicant argued that the Tribunal in the present case made the same error as was identified in DZADQ. The applicant argued that the only link between the generally improved security situation, punctuated by two terrorist events, and the conclusion that the risk faced by the applicant was remote, was the analysis in paragraph 79 of the Tribunal’s reasons that:
… The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. …
The applicant argued that analysis was numerical, and only numerical, and the Tribunal thereby fell into the error identified in DZADQ.
In DZADQ, the Tribunal said at paragraph 137 of its reasons for decision:
The Tribunal accepts that sectarian violence is a problem in Pakistan. However, as put to the applicant at hearing, when the Tribunal considers that there are estimated to be over 40 million Shia Muslims in Pakistan, it is of the view that there is only a very remote chance that the applicant will be the victim of an incident of sectarian violence if he returns to live with his family in their home in Peshawar, Pakistan. The Tribunal does not accept that there is a real chance that the applicant … will be persecuted in the context of the sectarian violence in Pakistan if he returns to that country now or in the reasonably foreseeable future. …

Mansfield J said in paragraph 57 of DZADQ that:
The first point to note about [141] of the reasons is that it is a rejection of the fact of there being any relevant risk to the appellant by reason of his Shia religion if he returns to Pakistan. What evidence there is to support that is not identified, except perhaps in the statistical approach in [137]. No other country information identified by the Tribunal supports the view that Shia Muslims in Pakistan are not the subject of sectarian violence or violence by the Taliban.
The same cannot be said in the present case. In the present case, the Tribunal recorded relevant country information in paragraphs 65 to 76 of its reasons for decision. It was for the Tribunal to assess that country information and draw conclusions from it, not for this court to draw its own conclusions.
In addition, in paragraph 65 of DZADQ, Mansfield J said that the Tribunal should have, but failed to, consider the applicant’s particular circumstances. Relevantly, the present applicant’s particular circumstances were that he was a Shia Muslim from the Turi tribe and from Kurram Agency. The Tribunal considered the risks facing such people at length, and in the light of country information, and concluded that the applicant did not have a well-founded fear of harm for reasons of generalised violence.
I am not persuaded that the Tribunal made a DZADQ-type error or misapplied the test in Guo. In assessing whether a fear is well-founded, it is necessary to consider the degree of likelihood of the feared event occurring. That requires an assessment of degrees of probability. In the present case, the Tribunal assessed the country information, and the applicant’s circumstances, and reached a conclusion which was open to it. This ground is not made out.

Ground 1(b)

Ground 1(b) in the application is:
The Tribunal’s conclusion in para. 82 that the Applicant (based on various Convention reasons) does not have a well-founded fear of persecution if he were returned to Pakistan now or in the future:
…
(b)involves a mis-reading or mis-application of the so-called ‘real chance’ test, see para. 79, see also para 80 -
Paragraphs 79 and 80 of the Tribunal’s reasons for decision are set out above.
The applicant argued that the Tribunal misapplied the real chance test by using illogical or irrational reasoning in paragraph 53 of its reasons for decision, and that reasoning flowed through to its subsequent findings.
Paragraph 53 of the Tribunal’s reasons for decision is as follows:
The Tribunal does not accept the applicant’s claim that sometime in about 2008 he was ambushed by three Taliban members when he was collecting wood in the forest, about an hour walk from Pewar. When queried about this incident by the Tribunal at the hearing, the applicant indicated that he was beaten, stabbed in the arm, the militia helped him and took him to their hospital. He told the Tribunal that if the militia had not been there he would have been killed by knife. When the Tribunal asked the applicant why the Taliban stabbed him in the arm he said it was because he was escaping, he was running and they got him on the arm. However, in his statutory declaration of 11 December 2012 he stated that ‘Two of the Taliban members held me so I could not escape and the third Taliban member used his knife to stab my left arm’. He also stated that the militia escorted him to the edge of the forest and he made his way home and was then taken to his village doctor for treatment. The applicant’s representative reiterated this account in his submission of 13 May 2016, stating that ‘Two of the Taliban members held him down while the third individual stabbed the Applicant’s left arm. About five minutes later, four local tribal militia arrived after hearing the Applicant’s screams and scared the Taliban away.’ The Tribunal, noting the findings of the delegate regarding this issue in his decision record, provided to the Tribunal by the applicant, also queried the applicant about why he had not raised this issue at his initial entry interview. The applicant and his representative have commented that the applicant was suffering seasickness at the time, the interview was relatively brief and focused on his family members and why he left Pakistan more generally, and that the applicant said he left Pakistan because of the Taliban. However, the Tribunal notes from the delegate’s decision record that this interview was held over a month after the applicant’s arrival in Australia, and that he was asked on several occasions to articulate why he had left Pakistan and whether there were any additional reasons for his departure beyond his initial response. While the Tribunal accepts that the applicant may have had some health issues at this time it does not accept that he was suffering seasickness so long after his arrival. The Tribunal finds that the applicant would not have been asked specifically about this or other incidents because the interviewer had no knowledge of them, but considers it reasonable to conclude that, given the significance of this matter to the applicant’s claims to fear the Taliban (noting he indicated to the Tribunal that he considered the Taliban members intended to kill him) the Tribunal considers he would have touched on it even if he felt he did not need to provide all the details at that initial interview. Accordingly, the Tribunal … [gives] some weight to the fact that the applicant did not mention this incident at his initial entry interview. The Tribunal also gives weight to the clear discrepancies between the applicant’s account at interview and in his written statement regarding why he was stabbed in the arm and where he received medical treatment. While the Tribunal considers it plausible that the applicant may have gone to the forest to collect wood and plausible that he saw Taliban members while doing so and fled, the Tribunal considers that the applicant has exaggerated this incident and does not accept that the applicant was apprehended, beaten, held and/or stabbed by Taliban members sometime in 2008.
The applicant argued that the illogicality or irrationality was in the last sentence of paragraph 53.
The applicant argued that the Tribunal relied on, but did not identify, the clear discrepancies between the accounts given by the applicant in his written material and in the hearing before the Tribunal. In context, it is clear that the discrepancies included whether the applicant was stabbed while being held down or stabbed while escaping, and whether the militia took the applicant to their hospital or left him at the edge of the forest to make his own way to the doctor.
The applicant argued that the applicant gave the allegedly discrepant account at the Tribunal hearing in answer to a question about why the Taliban had stabbed him. The applicant argued that the Tribunal’s question called for a speculative answer, as the applicant could not have known the Taliban’s motivation, and the Tribunal should have recognised the answer as speculative.
That may be so. However, the applicant’s answer did not speculate on the Taliban’s motivations, but asserted concrete facts about what occurred. It was open to the Tribunal to rely on that answer.
The applicant then argued that the discrepancies were minor. For that argument, the applicant relied on Sundararaj v Minister for Immigration & Multicultural Affairs [1999] FCA 76, where Burchett J said at paragraph 5:
Although, in this case I have concluded that the central question of the credibility of the applicant’s story, including the importance of his demeanour, must have ultimately dictated the decision, and that no error of law actually affected it, I think in the circumstances the applicant was well entitled to seek the only form of review open to him. The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service. However, in this case, for the reasons I have already given, the application must be dismissed; but I make no order as to costs.
In the present case, I do not accept that the discrepancies were minor. The two accounts are significantly different in relation to matters that the applicant could have been expected to be very clear about, namely, whether he was held down and stabbed or stabbed while running away, and whether he was escorted by the militia to hospital or left by them at the edge of the forest.
The applicant accepted that his claims about his medical treatment were inconsistent, but argued that his two accounts about the stabbing could have been consistent. The applicant said that two Taliban members could have grabbed him while he was running away and the third might have stabbed him. However, it seems to me that the Tribunal’s interpretation of the applicant’s accounts was open to it and were a reasonable and natural understanding of the applicant’s evidence.
The applicant then argued that the Tribunal’s reliance on his failure to mention the ambush in the forest in his entry interview was fundamentally wrong. The applicant submitted that he said in the entry interview that the Taliban would kill him, they kill Shia and they undertake suicide bombings. The applicant said this was consistent with his claims about the ambush in the forest.
It may have been consistent, but it was open to the Tribunal to consider that the fact that the applicant did not mention the ambush in the forest was a significant matter on which it could place weight.
The applicant dwelt at length on the record of the applicant’s entry interview. The record in relation to question 1 of Part C of the applicant’s entry interview (CB10) is as follows:
Reason to leave
1.Why did you leave your country of nationality (country of residence)?
From Taliban and from Suicide bombing
Q: What do you mean?
A: They will kill me and behead me?
Q: Why will they do that to you?
A: They will do this to Shia?
Q: Why will they do it to the Shia?
A: They just try to kill Shia and do suicide bombings among people.
Q: Why do they undertake suicide bombing?
A: I don’t know why they do it.
Q: How has the Taliban activities affected you?
A: We had a shop and we could not run the shop because of that?
Q: What do you mean we could not run the shop because of that?
A: There was suicide bombing taking place.
Q: Where was this shop located?
A: Jail Road Parachinar.
Q: What other reasons do you have for leaving Pakistan and coming to Australia?
A: That is the reason.
Q: Apart from these suicide bombings and attacks what made you specifically leave Pakistan to come to Australia?
A: I could not go to Peshawar, Peshawar is the same. I am just fearful of suicide bombings.
Q: Do you have any other reasons for leaving Pakistan apart from what you have told me?
A: NO. I have no other reasons.
The record in relation to question 18 of Part C of the applicant’s entry interview (CB15) is as follows:
Reasons Not To Return to Country of Nationality
18. What do you think will happen to you if you return to your country of nationality (residence)?
They will behead me.
Q: Why will they behead you?
A: They do this to Shia people.
Q: How many Shia people do you have have in Pakistan?
A: Many?
Q: So do they behead Shia people all the time?
A: Yes, they behead Shia people?
Q: Who are the people who behead Shia people?
A: Taliban.
Q: Why do Taliban behead Shia people?
A: I don’t know why, but it is just because we are Shia.
Q: Why don’t you go and live some where safe where there are no Taliban?
A: There is suicide bombing take place everywhere in Pakistan, no where is safe?
Q: Who told that nowhere is safe in Pakistan?
A: I am aware of that in terms of bombing everywhere.
Q: What else will happen to you if you go back to Pakistan?
A: Killing is going on with suicide bombings.
Q: But these are generalised violence and are not specifically related to you?
A: Anybody who they can catch they will kill.
Q: do you have anything else to say?
A: NO.
Q: Have you been able to say what you wanted to say?
A: Yes
Q: Are you happy with the process today?
A: Yes
19. Is there anything I have not asked you that you would like to say? Yes ☐ No ☑
The applicant argued that the interviewer asked him to detail matters other than those relating to the Taliban that he had already mentioned, and thereby made it difficult for him to mention the ambush in the forest.
I do not accept that argument. In the discussion recorded in relation to question 1, the interviewer specifically asked:
How [have] the Taliban activities affected you?
The applicant spoke about a suicide bombing near his shop. He did not say anything about being ambushed in the forest. The interviewer then asked:
What other reasons do you have for leaving Pakistan and coming to Australia?
The applicant said that the suicide bombing near his shop was the reason. He did not say anything about being ambushed in the forest. The interviewer then asked:
Apart from these suicide bombings and attacks what made you specifically leave Pakistan to come to Australia?
The applicant said he was just fearful of suicide bombings. He did not say anything about being ambushed in the forest. The interviewer then asked:
Do you have any other reasons for leaving Pakistan apart from what you have told me?
The applicant said he had no other reason. He did not say anything about being ambushed in the forest.
The applicant argued that by saying, Apart from these suicide bombings and attacks, the Tribunal did not allow the applicant to speak of the ambush in the forest. However, that is not so. In relation to question 1, the Tribunal gave the applicant a number of opportunities to say how the Taliban had affected him, including the catch all:
Do you have any other reasons for leaving Pakistan apart from what you have told me?
Similarly, in relation to question 18, the interviewer asked the general question:
What else will happen to you if you go back to Pakistan?
The applicant again referred to suicide bombings. He did not say anything about being ambushed in the forest. The interviewer then asked:
Do you have anything else to say?
The applicant said he did not. He did not say anything about being ambushed in the forest. The interviewer then asked:
Have you been able to say what you wanted to say?
The applicant said he had. He did not say anything about being ambushed in the forest. The interviewer then asked:
Is there anything I have not asked you that you would like to say?
The applicant said that there was not. He did not say anything about being ambushed in the forest.
It seems to me that the applicant had many opportunities in his entry interview to say what he wished about his experiences with the Taliban. He did not mention the ambush in the forest. It was open to the Tribunal to place weight on the fact that the applicant did not mention the ambush in the forest in his initial entry interview.
I am not persuaded that the Tribunal’s process of reasoning in paragraph 53 of its reasons for decision was illogical or irrational. I am not persuaded that the Tribunal was not entitled to place weight on the fact that the applicant did not mention in his entry interview the ambush in the forest. This ground is not made out.

Conclusion

As neither of the applicant’s grounds has been made out, the application will be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 1 May 2019