DSP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1484
•30 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DSP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1484
File number(s): DNG 33 of 2019 Judgment of: JUDGE RIETHMULLER Date of judgment: 30 June 2021 Catchwords: MIGRATION – application for judicial review – protection visa application – eight grounds of review – further written submissions – no matters of principle – application dismissed Legislation: Migration Act 1958 (Cth), s 36 Cases cited: BUD17 v Minister for Home Affairs [2018] FCAFC 140
ETA067 v The Republic of Nauru [2018] HCA 46
Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Number of paragraphs: 54 Date of last submissions: 9 April 2021 Date of hearing: 16 March 2021 Place: Melbourne (via Microsoft Teams) The Applicants: In Person Solicitor for the Respondents: Australian Government Solicitor Counsel for the Respondents: Mr Sypott ORDERS
DNG 33 of 2019 BETWEEN: DSP19
First Applicant
DSQ19
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RIETHMULLER
DATE OF ORDER:
30 JUNE 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.
REASONS FOR JUDGMENT
JUDGE RIETHMULLER:
The applicants in this matter seek judicial review of a decision of the Migration and Refugee Division of the Administrative Appeals Tribunal (‘the Tribunal’), which affirmed a decision of a delegate for the Minister to refuse to grant the applicants Protection (Class XA) (Subclass 866) visas (‘visa’).
The applicants are Pakistani nationals who first travelled to Australia for the period between 30 January 2011 to 27 April 2011, as holders of tourist visas, to visit their sons, who were studying in Australia. The applicants returned to Australia on 9 July 2014 and applied for a protection visa on 25 July 2014. The second applicant, the first applicant’s wife, did not make her own claims for protection and applied for the visa as a member of the family unit of the first applicant. Her claim therefore rises or falls with that of the first applicant.
Background
On 21 June 2017, a delegate of the Minister refused to grant the applicants visas and on 10 July 2017, the applicants lodged an application for review of the delegate’s decision with the Tribunal.
On 10 April 2019, the applicants appeared before the Tribunal. The applicants provided the Tribunal with a psychological assessment confirming that the first applicant suffered from an adjustment disorder with depression and that this matter was creating significant stress for him. The first applicant said he was able to take part in the hearing and that the only medication he was taking was for his blood pressure. The Tribunal raised concerns with the first applicant about his focus and vague evidence and made inquiries as to whether he wished to continue with the hearing. The first applicant indicated that he wished to continue, however, the Tribunal adjourned so the first applicant could speak to his agent about the Tribunal’s concerns and obtain an updated psychological report.
The applicants lodged an updated psychological report, confirming that the first applicant suffered from an adjustment disorder and concluding that the first applicant experienced stress-induced anxiety and low grade panic during the first hearing and this may have affected his responses. It was recommended that one or two support people should be present at further hearings.
On 9 July 2019, the applicants appeared before the Tribunal for the second hearing. The applicants’ son was present at the hearing and the applicants were represented by their registered migration agent. The Tribunal considered the psychological report and permitted the first applicant to repeat his evidence.
On 10 September 2019, the Tribunal affirmed the delegate’s decision to refuse to grant a visa. On 30 September 2019, the applicants lodged an application for judicial review, the subject of these proceedings.
Applicant Case
The applicants claim that, ‘Ismaili Shia are targeted by Sunni extremists and criminal gangs because they are considered to be educated and wealthy people. [The first applicant] fears Sunni extremists such as the Taliban, TTP, SSP and LeJ who are traditional enemies of the Shia Ismaili. He claims that due to the rise of ISIS in Pakistan, Shias, particularly the Ismaili face particular harm’: see paragraphs [17] to [18] of the Tribunal decision.
At paragraph [69] of the decision, the Tribunal identified the first applicant claims that he is fearful of return to his home country, on the basis that he will be perceived as a wealthy businessman returning from the West.
The first applicant’s claims with respect to the kidnapping of his son were outlined by the Tribunal in its decision:
20.… in 2014 his sons [S] and [A] travelled to Pakistan from Australia to attend a wedding. On 28 March 2014 [S] was on his way to visit a friend at the Aga Khan University and was kidnapped by a Sunni extremist group affiliated with the Taliban.
21.[S] was abducted at gunpoint, blindfolded and taken to an unknown location. The kidnappers threatened to kill him if his family did not pay a 5 million rupees ransom (about $50,000 AUD). He was abused and beaten until he gave the assailants the applicant's telephone number ...
22.The applicant contacted his wife and [A]. He also spoke to family friend [M] and his father-in-law. It was decided that he should contact the police. The police advised him to go with the money and he would be accompanied by police dressed in plain clothes who would catch the kidnappers.
…
25.The applicant attended at Kamran Chowrangi and was approached by two men who demanded the ransom. The police intervened and the kidnappers started firing gun shots.
26.The police shot one of the kidnappers and arrested the other. The kidnapper was interrogated and told the police about [S]’s location. The police subsequently attended at the second location and were able to release his son.
27.On 16 May 2014 the applicant received a telephone call from an unknown number when he was working on his dairy farm. The caller threatened the applicant because one of their group was shot by the police. He continued to receive the calls at random times on about four to five occasions.
…
29.The applicant realised the police would not help him and feared they would be angry because he refused to pay them any money. He decided to keep a low profile and sell his dairy business.
30. The applicant believes that if he returns to Pakistan the kidnappers will take revenge and kill him and his family because the police killed one of the gang members during his son's rescue and other gang members were arrested.
…
32.He claims the authorities in Pakistan will not protect him and his family in Pakistan because the authorities, including the police are extremely corrupt and work with terrorist groups. He claims the police often inform the terrorist groups after receiving complaints from the public and the terrorists kill complainants in revenge.
Tribunal Findings
The Tribunal identified the protection issues before it as follows:
14. The issue in this matter is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because:
•he belongs to the Aga Khan Shi’a Ismaili religious sect (‘Shia Ismaili Muslim’);
•he was involved with the Aga Khan Social Welfare Board of Pakistan (‘AKSWB’);
•he fears he will be perceived as a wealthy businessman returning to Pakistan from a Western country; and
•he fears revenge from Sunni extremists who were involved in the abduction of his son.
The Tribunal determined with respect to the kidnapping that:
50.… [S] was living in Australia with his wife and briefly returned to Pakistan when he was kidnapped on a public street soon after he returned to Pakistan. He did not know his kidnappers. The kidnappers had no connection with the applicant. Having considered the country information the Tribunal finds it was an isolated opportunistic act by terrorists who were seeking revenue to fund their operations. The Tribunal finds that the applicant and his family have were not involved in any legal proceedings associated with the kidnapping. The telephone threats ceased when he departed Pakistan in July 2014. The applicant has now sold his dairy business and has been living in Australia for about five years. The terrorists who abducted his son have had no further contact with the applicant or his family. The applicant's sons are now Australian permanent residents. The third son is a resident in [C]. For these reasons the Tribunal finds that there is no real chance that the Sunni terrorist group who were involved in the abduction of his son would remember the applicant and seek revenge for the police shooting and arrest of members of their group.
Regarding the claim that the applicants may be targeted as Shia Ismaili Muslims, the Tribunal had regard to:
56.… the country information and finds that the government of Pakistan is supportive of Shia lsmaili Muslims and has provided its followers with state protection and attacks on Shia lsmaili Muslims have declined significantly in recent years. Having considered the country information the Tribunal finds that Shia lsmaili Muslims face a low level of violence and insecurity in Pakistan.
The Tribunal also considered the first applicant’s profile as a Shia Ismaili Muslim who was a member of the AKSWB, accepting that he had taken ‘part in Ismail cultural events and was a member of the Senior Citizen Forum’ (at paragraph [57] of the decision), concluding:
59 …The Tribunal finds that the applicant was an ordinary member of the AKSWB Senior Citizen Forum. He also worked as dairy farmer and had no involvement in politics in Pakistan. Country information confirms that AKSWB's social operations have the support of the Pakistan government. The Tribunal also finds that the applicant has not experienced any direct harm in the past because he is a Shia Ismail Muslim or because of his membership in the AKSWB. The Tribunal finds that there is no connection between the applicant's Shia lsmaili religion and membership of AKSWB and the abduction of his son. As detailed above the Tribunal found the abduction of his son was a random opportunistic criminal act. There is no evidence to suggest [S] or the applicant were specifically targeted by the terrorists in 2014.
60.In the circumstances, looking to the reasonably foreseeable future, the Tribunal finds that it is mere speculation to suggest that the applicant as a Shia Ismaili Muslim will face persecution in Pakistan from extremist groups.
…
68.The Tribunal finds that the applicant departed Pakistan voluntarily travelling on a valid visa to Australia. At the hearing the applicant confirmed that he has not been involved in politics in Pakistan. He is not a Shi a Hazara or a member of the Turi or Bangash tribes which are the target of many anti-Shia terrorist attacks in Pakistan.
69.The Tribunal has had regard to the applicant's profile as Shia lsmaili Muslim and finds that he is not a person of interest to the authorities because of his actual or imputed political opinion. The Tribunal finds that the applicant is not a high profile Shia by virtue of being a member of the AKSWB Senior Citizen Forum. He has no adverse political profile. The Tribunal finds that the applicant will be able to continue to take part in lsmaili Shia religious gatherings and cultural organisations if he returns to Pakistan in the future as he did in the past.
In relation to the first applicant’s concerns that he will be targeted by criminal groups for being a wealthy Ismaili returning to Pakistan, the Tribunal accepted “that there may be a perception that he is wealthy because he has travelled to Australia and because he is lsmaili” (at paragraph [47] of the decision) and found that:
75.The applicant will be returning to Karachi, the largest city in Pakistan, located in the province of Sindh which has a population of 47.8 million. European Asylum Support Office (EASO) report that security operations by the Rangers helped reducing the violence in Sindh. EASO reports that the Rangers have been given 'special powers' to tackle the variety of violence, not just ethno-political, but also sectarian violence and extortion.29 The Tribunal has had regard to the county information and finds that the security situation has improved in Pakistan since abduction of his son in March 2014.
Having concluded that the first applicant did not meet the refugee criterion in section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal considered the alternative criterion in section 36(2)(aa) and found that:
80.The Tribunal accepts the applicant's concern that he will face some hardship returning to Pakistan because of the poor economic circumstances of and the general disregard for law and order. However, the Tribunal finds that these circumstances are circumstances faced by the population of the country generally and not faced by the applicant personally. As such, in accordance with s.36(2B)(c), there is taken not to be a real risk that the applicant will suffer significant harm on his return to Pakistan
The Tribunal noted the impact of the first applicant’s mental health upon his capacity to give evidence at the hearing before the Tribunal, saying:
46.Although the Tribunal found aspects of the applicant's evidence vague and inconsistent the Tribunal accepts that the applicant's psychological condition may have had an impact on his ability to recall facts and give evidence.
With respect to the first applicant’s psychological conditions and ongoing treatment, the Tribunal determined that:
83.The Tribunal finds that the applicant's psychological health and lack of medical recourses is not of itself grounds for granting complementary protection. Further, it was not claimed by the applicant that there would be any intention on the part of another person or the state to cause him significant harm because of his psychological condition.
GROUNDS FOR JUDICIAL REVIEW
The Application filed on 30 September 2019 sets out eight grounds as follows:
1. I applied for protection visa because my and my family's lives were threatened in Pakistan in March 2014.
2. We belong to Shia Ismaili community which is a minority in Pakistan and an easy target of extremist because of our religious believe and progressive thinking.
3. We belonged to an upper middle class in Pakistan and all my sons are currently residing out of Pakistan.
4. I do not agree with the review of AAT; accord to AAT point#48. Reports show that terrorism financing through kidnapping had declined since 2014. However, on the contrary according to the Dawn news published on Sept 14th 2019, No significant decline in kidnapping seen in Karachi. More than 1520 people were murdered of which 1298 were killed in Sindh province
5. I do not agree with the review of AAT when they feel that there is no harm in going back to Pakistan. Following the tragedy that we encountered and the news, statistics of crime report. I do not feel comfortable and I strongly believe that I would still be a target of extremist. There are more active terrorist organization now than before.
6. AAT also mentioned that we celebrated 60th Imamat year of His Highness Aga Khan. Government organizations do respect our community. However, we do have kidnapping, extortion and killing of our community member by extremist and other groups. Recently, one of the doctors (Dr. Shaukat nayani Ref. doctor) from our community was killed by group of extremist because of not paying the ransom. There are many incidents which happen in Karachi and go unreported.
7. AAT also mentioned that we celebrate 60th Imamat year of our beloved His Highness. Government organization do respect of our community We live peacefully in our community but if something happen to our community or people like me, we never come up with aggression or violence to show other people or community that something bad happen to us. For example the Safoora Goth incidences, 47 people including children were killed (shooted) in the bus. AAT pointed that Shia community are save but incident can happen with any people. Terrorist won't ask your religion before attacking on you. The point was Shias are soft targeted. They know that this community won't come up with any police complain or show any aggression. I feel AAT was unable to understand my point of view.
8.Lastly, during the hearing, I was very nervous and depressed thinking if I am reject, I will be killed by the group who kidnapped my son and as a result one of their partner was killed in the police encounter and they threatened to kill me and my family. Members at AAT were very supportive and they made it possible for me to come back and attend the hearing. I attended couple of sessions with psychiatric to help me calm down and prepare for the hearing. However, I am still depressed and because of this I am not able to articulate my response property.
Grounds 1-3
The first three grounds in the application are a narrative of the background facts and circumstances and are not a ground for judicial review.
Ground 4
The reference to paragraph [48] of the decision is a reference to the finding of the Tribunal where it found:
48. The Tribunal has had regard to country information and accepts that terrorist groups in Pakistan are involved in kidnapping to procure ransoms that fund their violent activities. Reports also confirm that terrorism financing through kidnapping has declined since government operations in FATA reduced militant activity there as part of Operation Zarb-e-Azb between about 2014 and 2016. The end of that operation has seen kidnappings re-emerge in large cities, including Karachi, which has long been associated with this type of crime.2
The applicant says that the Tribunal failed to have regard to an article published in ‘The Dawn News published on Sept 14th 2019’. However, this article does not appear to have been placed before the Tribunal. The applicant said in the hearing in this court that the article is available online, with other ongoing news items.
It is not an error that the Tribunal did not have regard to material that was not placed before it, or to which its attention was not specifically drawn. I therefore find that this ground cannot succeed.
Ground 5
This ground expresses disagreement with the findings of the Tribunal on the merits of the case as a whole. This is not a ground for judicial review.
Ground 6
This ground also expresses general disagreement with the merits of the decision. The ground refers to a new article available on the internet that does not appear to have been placed before the Tribunal. This is not a ground for judicial review that can succeed (for the same reasons set out above) with respect to grounds 4 and 5.
Ground 7
As with grounds 5 and 6, the applicant complains about the merits of the Tribunal’s decision. In particular, the applicant refers to a shooting incident and refers to Shias as being ‘soft targets’. The incident referred to in this ground does not appear to have been drawn to the Tribunal’s attention before the decision was made. This ground cannot succeed for the same reasons as set out with respect to grounds 4 to 6.
Ground 8
In this ground, the applicant complains that he was not able to properly put his claims at the hearing with the Tribunal due to his mental health issues. Quite fairly, he acknowledges that the Tribunal adjourned the initial hearing to allow him more time to better present his case. There is no criticism of the Tribunal Member’s handling of the hearing, which appears to have been focused upon ensuring that the applicant had every opportunity to present his case.
In substance, this ground appears to argue that despite the Tribunal’s efforts, the applicant’s mental health was such that he was still unable to present his case appropriately, and therefore he did not receive a ‘real’ hearing. There are many difficulties with this argument in this case:
(1)The Tribunal adjourned the matter to allow the applicant another opportunity for a hearing;
(2)The applicant was supported by an advisor and family member at the hearing;
(3)It was not put to the Tribunal Member that the applicant was too ill for the adjourned hearing to take place (indeed, on the first hearing, the adjournment was at the Tribunal’s instigation);
(4)There is no evidence before this court to show that the applicant was incapable of participating in the hearing; and
(5)The Tribunal had regard to the applicant’s particular difficulties in presenting evidence and accepted much of the evidence that he gave.
In order to succeed on judicial review the applicants must show more than a mental illness. It is necessary to show that the applicant was unable to respond to questions and meaningfully participate in a hearing: see Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at paragraphs [30]-[34] (per Tracey J). In this case, the applicant did respond to questions and the decision record indicates a meaningful participation in the hearing process. I therefore find that the applicant has not established a basis for judicial review in this ground.
OTHER SUBMISSIONS
As the applicant spoke no English and used an interpreter, I also allowed his daughter to make submissions on his behalf at the hearing before me. Whilst her submissions were generally disputing the merits of the decision, she argued, in substance, that the decision went against the weight of the country information. She referred to the submissions at CB282 and 336 and the extensive lists of internet references in those submissions.
The references (with internet links) are arranged into loose categories, described in the introductory paragraph as follows:
We refer to the applicants’ pending review application and provide following submission. We note the submission will address and provide relevant country information on the following:
a. Whether there are any country information confirming targeted attacks against Shias.
b. Whether there are any country information confirms that Shias have been charged under Blasphemy laws?
c. Whether there are any country information confirms further escalation of Islamic terrorism and extremism in Pakistan in the recent times?
d. Whether there are any evidence to suggest that there is a link between the Pakistani authorities and the Sunni extremists and whether the Pakistani authorities either passively or actively support the Sunni extremists?
e. Whether there are any country information confirms that Shias face threats of abduction to extort money?
f. Whether there are any country information confirms that due to the election, security situation has worsened in Pakistan?
The decision of the Tribunal contained a lengthy discussion of country information and news items (including 29 footnotes).
When one compares the material referred to in the decision with the material referred to in the applicant’s submissions to the Tribunal, it can be seen that there are no references in the decision to reports or articles in the submission at CB282 or 336.
It should be noted, however, that the country information relied upon by the Tribunal was almost all published between 2017 and 2019, and much from the Department of Foreign Affairs and Trade reports and an EASO report. Whilst the submissions contained material published in the same time period, much of the material was from earlier years, dating back as early as 2010.
In submissions filed after the hearing, the applicants point to three parts of the decision by the Tribunal, where it is alleged that the Tribunal failed to have regard to the evidence that was relevant and had been placed before it by the applicants.
Before turning to the particular allegations, I note that the decision is not required to consider every item of evidence placed before the Tribunal. As was explained in ETA067 v The Republic of Nauru [2018] HCA 46 (at paragraphs [13]-[14]):
13. The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
14. Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.
Whilst a decision-maker does not have to refer to every piece of evidence, and can prefer some evidence over other evidence, the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 pointed out:
49.The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
50. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
Thus, a decision-maker referring to a lengthy document indicates consideration of its contents, however, this does not determine the issue, as some parts of a lengthy document may be of such significance as to require specific reference or discussion: see generally BUD17 v Minister for Home Affairs [2018] FCAFC 140 at paragraph [62].
The legal consequences flowing from a finding that a decision-maker failed to consider a piece of evidence, such as a document, or a critical part of a document will, as the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at paragraph [77], “depend on the circumstances of the case and the nature of the document”. I note the statement of Mason J in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at paragraph [40], that there is not error where the factor was so “insignificant that failure to take it into account could not have materially affected the decision”. In order to carry out this task, it is necessary, as the Full Court sets out in BUD17 v Minister for Home Affairs [2018] FCAFC 140 at paragraph [65], to consider:
(1) the cogency of the evidentiary material; and
(2) the place of that material in the assessment of the review applicant’s claims.
The applicant argues in the additional submission made that at pages CB282 to CB330, the articles provided contain information contrary to the findings of the Tribunal. Unfortunately, the applicant did not identify any particular reports among the 115 internet links to reports that were relied upon in the many pages of lists of information. This was the same difficulty confronted by the Tribunal: an overwhelming number of references are given without any submissions to identify specific important information.
It is not for the court or Tribunal to trawl through 115 internet pages looking for information that may assist the applicant. The Tribunal has specifically identified the relevant passages from various reliable sources of country information upon which it relied. The applicant has not identified any information that was provided to the Tribunal that is contrary to the information that the Tribunal relied upon, let alone information that was of such significance as to require it to be referred to by the Tribunal Member in the reasons for the decision.
With respect to the particular complaints in the submissions, first, the applicant complains about the findings in paragraphs [50] and [51] of the decision where the Tribunal Member says:
50. The Tribunal finds that [S] was living in Australia with his wife and briefly returned to Pakistan when he was kidnapped on a public street soon after he returned to Pakistan. He did not know his kidnappers. The kidnappers had no connection with the applicant. Having considered the country information the Tribunal finds it was an isolated opportunistic act by terrorists who were seeking revenue to fund their operations. The Tribunal finds that the applicant and his family have were not involved in any legal proceedings associated with the kidnapping. The telephone threats ceased when he departed Pakistan in July 2014. The applicant has now sold his dairy business and has been living in Australia for about five years. The terrorists who abducted his son have had no further contact with the applicant or his family. The applicant’s sons are now Australian permanent residents. The third son is a resident in [C]. For these reasons, the Tribunal finds that there is no real chance that the Sunni terrorist group who were involved in the abduction of his son would remember the applicant and seek revenge for the police shooting and arrest of members of their group.
51. Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm from the terrorist group who kidnapped his son if he was to return to Pakistan.
This paragraph sets out the reasoning of the Tribunal when concluding that after such a long period it did not accept that the group would remember the applicant. This is not something that is impacted upon by country information.
The second matter raised was the findings at paragraphs [55] to [56] of the decision where the Tribunal said:
55. The Tribunal further notes that the Shia Ismaili spiritual leader, Aga Khan IV, visited Pakistan in December 2017 to meet a large congregation of followers to celebrate the community’s Diamond Jubilee which marked 60 years of spiritual leadership of the Shia Ismaili Muslim community. The spiritual leader was greeted by Pakistan’s Foreign Minister Khawaja Asif and was scheduled to meet with President Mamoon Hussain, Prime Minister Shahid Khaqaan Abbasi and several other government leaders.
56. The Tribunal has regard to the country information and finds that the government of Pakistan is supportive of Shia Ismaili Muslims and has provided its followers with state protection and attacks on Shia Ismaili Muslims have declined significantly in recent years. Having considered the country information the Tribunal finds that Shia Ismaili Muslims face a low level of violence and insecurity in Pakistan.
The submissions repeat complaints about the facts as found by the Tribunal, and do not identify relevant country information that bears upon this issue.
The final matter raised was with respect to paragraph [77] of the decision where the Tribunal said:
77. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm such as kidnapping and sectarian-related violence if he returns to Pakistan in the reasonably foreseeable future because he is Shia Ismaili Muslim, member of the AKSWB, failed asylum seeker from Australia who will be perceived be a wealthy. His claims of persecution are not well-founded.
The applicant submits that he “provided reports and article which prove that wealthy people in Pakistan are at significant risk and crime rate is still high”, referring to CB322 to 324 and items 82 to 86 in the list of summaries of news articles from 2014 to 2018. The Tribunal relied upon the ‘EASO Country Information Report Pakistan Security Situation October 2018’ at [2.2.4] in making findings with respect to the risks of extortion at paragraph [75] of the decision, where the Tribunal said:
75. The applicant will be returning to Karachi, the largest city in Pakistan, located in the province of Sindh which has a population of 47.8 million. European Asylum Support Office (EASO) report that security operations by the Rangers helped reducing the violence in Sindh. EASO reports that the Rangers have been given ‘special powers’ to tackle the variety of violence, not just ethno-political, but also sectarian violence and extortion.29 The Tribunal has had regard to the county information and finds that the security situation has improved in Pakistan since abduction of his son in March 2014.
Whilst the applicant strongly disagrees with the findings of the Tribunal, it appears that those findings were open to the Tribunal on the evidence before it. The applicant has been unable to point to a specific piece of significant evidence bearing upon this, that is contrary to the finding in paragraph [75] of the decision.
The final complaint is with respect to paragraph 63 where the Tribunal says:
63. The Tribunal has had regard to statistics compiled by the South Asian Terrorist Portal on the number of Shia deaths in Pakistan since 2001. The Tribunal notes that number of deaths has significantly decreased in 2018 from previous years. For example, in 2017 the number of Shia deaths was reported to be 114 with 308 injured compared to 2018 where the number of deaths was seven and four injured. Out of the seven deaths six involved Shia Hazaras living in Quetta and only one death was that of a Shia man who was shot and two injured in Karachi.
The applicant submits that “We provided evidence that there is no real significant decline in Shai Muslims deaths”. The evidence is not identified, save for a general reference back to the long list of internet links.
On the material before the court, the applicant has not identified a document which has not been taken into account that is of such importance or significance in the context of the reasons given by the Tribunal, that the failure to mention it in the reasons leads to an inference that the Tribunal failed to have regard to its contents in reaching the decision.
I therefore find that the applicant had not established a ground on the material contained in the additional written submissions.
CONCLUSION
As I have not found that the applicant has established a ground for judicial review I must dismiss the application.
Costs
At the hearing submission were made as to costs. Whilst the applicant has no money to pay costs, this does not affect the ordinary rule that costs should follow the event. The Minister seeks costs in the sum of $5,400.00, which is less than the scale fee. I find that the costs sought are reasonable, and make orders accoringly.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller. Associate:
Dated: 30 June 2021
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