Duy16 v Minister for Immigration and Border Protection
[2022] FedCFamC2G 193
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUY16 v Minister for Immigration and Border Protection [2022] FedCFamC2G 193
File number(s): MLG 2697 of 2016 Judgment of: JUDGE VASTA Date of judgment: 4 March 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth): s 36(2)(aa) Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 4 March 2022 Date of hearing: 4 March 2022 Place: Brisbane Counsel for the Applicant: Mr Nguyen Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr Reilly Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
MLG 2697 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUY16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS THAT:
1.The application filed on 12 December 2016 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $4,400.
NOTATION:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)Judge Vasta
On 18 November 2016 the Administrative Appeals Tribunal affirmed a decision not to grant the Applicant, DUY16, a protection visa. On 12 December 2016, the Applicant asked this Court to review that decision.
Having filed the matter in 2016, the matter came before Registrar Alloway on a first court date of 7 June 2017. The Registrar made the usual orders for setting down the matter and listed it for final hearing before Judge Wilson, as His Honour then was, on 19 February 2020. Upon Judge Wilson’s appointment to, what is now, tier 1 of this Court, that listing had to be abandoned. The matter came into the migration docket. It was set for hearing before me on 25 November 2021. On 22 November 2021 the parties both asked me to vacate that hearing. I vacated the hearing and it listed the matter for final hearing at 10 am today, 4 March 2022.
What this means is that, through a number of circumstances, DUY16 has had to wait over five years for his application to be finally determined and this is a circumstance for which the Court apologises to DUY16 for its inability to finalise his matter before now. And it is part of the reason that I am giving these reasons ex tempore because it really has been far too long for DUY16 to wait.
The background of the matter is that the Applicant is a citizen of Pakistan. He is a person who lived in Peshawar. According to the Applicant, Peshawar is about eight kilometres from the tribal area of the Khyber agency which is a strong hold of Taliban, Taliban supporters and Taliban militants. He claimed that the Taliban from this area are responsible for attacks on the Pakistani army in Peshawar and have been responsible for atrocities committed in the area where children and civilians have been injured and killed.
The Applicant is very proficient in the game of squash. He had risen through the junior ranks both in Pakistan and in international completion. He eventually became a professional squash player. It is a matter of public record that many world champions in this sport have come from Pakistan.
The Applicant told the Tribunal that squash was his passion and it was his livelihood. He ended up foregoing the benefits of more detailed education so that he could concentrate on a squash career from a young age. What he said was that his professional career in squash continued for a number of years until January of 2014. At that time, he stopped the professional playing of squash as being his main profession and instead turned to coaching.
He said that he had quite a deal of experience in coaching and had coached in “on and off” capacities as he was a professional player. He said though that when he became, in effect, a professional coach he took on all-comers who wanted to learn to play squash. This included girls.
He said that, in August 2014, so some seven months after commencing the fulltime coaching role, a cousin from his father’s side was killed by the Taliban while visiting his relatives. That cousin on his father’s side lived next door to his parents. The Applicant said that before this cousin died, he told his relatives that he had received phone calls from unknown people claiming to be from the Taliban and they had threatened to kill him if they didn’t pay him.
The Applicant said that the murder was not properly investigated by the police and that the identity of the killers of his cousin remain unknown. He said the next month, precisely 13 September 2014, a man came to his parents’ house. He said that no one was home except for a young brother. The young brother opened the door. This man gave the young brother a letter and said to the young brother that they must follow the orders given in the letter otherwise they would regret it.
The Applicant said that the letter was from the Taliban and it said that they were against him playing squash and teaching boys and girls how to play. That letter is reproduced at CB 142 and the translated copy appears at CB 143. It reads
[the Applicant’s name],our informant informed us that you are a squash player. You are playing squash with male and female in the club, our organization inform you to stop squash game, and coaching classes especially with females, It’s not in Islam, especially coaching of female, due to which you are creating vulgarity in the society. Therefore, we inform you by letter to stop these activities otherwise we will give you hard punish.
The Applicant said that he went to the police to lodge a report about this. He said that the station officer entered the police report log and said to the Applicant that he should continue to play and coach squash. He said that the officer told him that they would arrange police protection for him but he said that this did not occur.
The Applicant said that the police in Pakistan have no resources and they cannot fight against the Taliban who have more weapons than the ordinary police. The Applicant said that, on 16 October 2014, so just over a month afterwards, he received another letter which was left under the door at his house. This letter said that because he did not obey the first order he would be fined five million rupees and that there would be consequences. That letter is reproduced at CB 144 and the translation is at CB 145. It reads
[the Applicant’s name], we have already informed you by letter to stop game especially coaching of female and we have already inform you that it’s against according to Islam but you didn’t pay attention to our letter and you are playing continuously.
Due to this reason our organization fine you and you will pay fine Rs 50,00,000/- if you didn’t pay this fine we will give you punish such as punish given to your cousin.[name omitted] (who was murdered by bullet).
The Applicant said that he was scared by this letter and he talked to his parents who said that he should lodge a report with the police. He said that he did this but the police did not take any action. He said that he consulted his family again and they decided that it would be best for him to leave Peshawar.
He said that on 25 October 2014 he left for Lahore and then on 2 January 2015 he received a call on his mobile from an unknown number. The person on the other end of the phone call told him that he could not escape the Taliban and that they knew his whereabouts in Lahore; that the Taliban have a lot of contacts and it is not hard for them to find his whereabouts anywhere in Pakistan. The person said that they would give him a few days to fulfil their demand otherwise they would kill him.
He said that he became even more frightened after receiving this call. He received an Australian visa that was granted on 3 January 2015 and decided that, for his safety, he had to leave. He said that, in the meantime, there were attacks at the army public school on 16 December 2014. And he said that the Peshawar sports complex, where he used to play and coach, also received many threats from the Taliban as it was a high profile complex.
He said that since he left Pakistan, two people from his parents’ neighbourhood have told his father that the Taliban are looking for the Applicant and that they would kill the Applicant when they find him.
He said that, if he lived anywhere in Pakistan, the Taliban can find out where he plays and/or lives because the newspaper regularly publishes the results of squash players and even their coaches and that he could not live a low profile if he continued to play and coach squash to boys and especially girls in Pakistan.
The Applicant added to his claims when he was interviewed by the delegate. At the initial interview with the delegate, the Applicant said that his cousin, who was killed by the Taliban, had been asked to give two million rupees to their cause and that his cousin did not take the threat seriously and was then shot to death in Peshawar.
In the hearing before the Tribunal, the Applicant made another claim and that was that he was present at the time of the killing of the cousin. The Tribunal took issue with that because this had not ever been claimed before and that the first information report (FIR) regarding the death of the cousin (which the Applicant provided) did not mention his presence at all.
The Tribunal, in effect, was saying to the Applicant that they were not minded to accept this new claim and the Applicant withdrew it and said that he was confused and that he meant that he went to the funeral of the cousin.
The Tribunal went through all of these claims. The Tribunal said that they had concerns regarding the Applicant’s activities in Pakistan.
The claim was that he concentrated on being a squash coach from January or February 2014 and that he was willing to teach girls. The Applicant claimed that it was this activity, that is, the teaching of girls, which brought him to the attention of the Taliban such that they threatened him for the first time in September 2014. The Applicant claimed to the Tribunal that he advertised his intention to be able to coach girls but when the Tribunal asked if he had any examples of such advertising, the Applicant said that he just spoke to people about his coaching.
The Tribunal noted that, in his protection application, the Applicant had identified himself as a squash teacher as his employment from 2005. Documents that the Applicant had submitted that were to bolster his claims for protection were testimonials from other squash players and squash officials talking about the Applicant’s coaching credentials. A number of these describe the Applicant as a coach dating back to 2008.
The Tribunal noted that the Applicant’s international career as a squash player ceased in 2010 because he did not travel after that. The Applicant said to the Tribunal that he did not have the money to travel. He said that up until 2014, the clinics that he would take as a coach would be an hour or half an hour, that they were sporadic, that he would fill in for other coaches if they were unable to meet their coaching commitments, or that during tournaments or playing matches that he often would also conduct coaching clinics beforehand. The Tribunal found information from squash info that demonstrated that the Applicant did have a world ranking but that he was not active from 2011 to 2014.
The Tribunal noted that the Applicant resided in Peshawar from September 2010 and had no other profession aside from squash. The Tribunal then inferred that the Applicant would have been required to coach to support himself. Notwithstanding that the Applicant said he made some money playing in the local leagues, the Tribunal said that they did not accept that he commenced coaching seriously from January 2014. The documentation provided by the Applicant demonstrated that he had been a squash coach for an extended period of time and, as I say, the Tribunal considered that he had to coach, given that he was not playing squash at an international level, so that he could support himself.
The Tribunal said that they considered that the Applicant had been conducting clinics and coaching session for an extended period and that the clinics and coaching included boys and girls. The Tribunal did not accept that the Applicant started coaching girls from January 2014 or that he became more prominent as a coach from this time such that the Taliban would take an interest in him or seek to threaten or harm him arising out of his activities as a squash player or coach. The Tribunal considered that the Applicant had been a squash player and a coach for an extended time and was based from September 2010 in Peshawar. The Applicant, it noted, did not claim to have any threats of harm arising from his activities in Peshawar from September 2010 until he said he was threatened in September 2014.
The Tribunal, looking at all of that material, came to a point where they said that they did not consider that there was any alteration in the Applicant’s activities or circumstances such that he would be a person that was of interest to the Taliban at that time. The Tribunal said that given he had not been of interest to the Taliban prior to September 2014.
The Tribunal had significant concerns regarding the claim that the Taliban threatened him at that time because of his coaching of girls and of playing squash. The Tribunal discussed the nature of the threats that the Applicant had received. The Tribunal confirmed that the only threats were the letters that were being delivered to his brother and the other slipped under his door and the Applicant confirmed that he had not been approached by the Taliban personally.
The Tribunal confirmed with the Applicant that he had a routine of playing and coaching squash four to five days a week, even though the times varied due to client availability. The Tribunal questioned the Applicant as to why the Taliban, if they were concerned with his activities, did not approach him personally regarding this at the squash courts or on his travel between these locations. The Applicant said that some squash courts are located within secure zones in Peshawar. The Tribunal independently confirmed that there were areas that required security checks that would limit the ability of the Taliban to approach him but the Applicant in his application detailed that his employer was the Pakistan Sports Board and that board is located at the Qayyum stadium in Peshawar. The squash complex was established there in 1992. That stadium and squash complex are not within the army zone within Peshawar.
The Tribunal noted the Applicant did not explain why the Taliban did not approach him personally while travelling around Peshawar had they had such a concern about his activities. The Tribunal said that the fact that the Applicant had not personally been approached by the Taliban, in these circumstances, caused the Tribunal to have concerns about the veracity of the claims.
The Tribunal was also worried about the letters that are reproduced at CB142 and 144. There were also first information reports and logbook reports that were also furnished by the Applicant. The Tribunal noted the country information from DFAT that spoke of the preponderance of fraud in Pakistan especially with documents. The Tribunal questioned the Applicant as to how he came to be provided with the documents, including how he had “written copies” of documents that were supposedly copies of reports made to the police in a logbook or in the FIR book. The Applicant said that he did not know how he was provided this by the police and he was unsure if the police had written out a copy or not. That explanation together, with the country information, was a significant concern for the Tribunal.
In regard to the letters, the Tribunal noted that the letters were written in a pen on a photocopy base page. There was a photocopy line running vertically on the September letter and the same photocopy dot was situated on the right-hand side of the page on both documents despite them being drafted a month apart. The Tribunal expressed its concern, at the hearing, to the Applicant, that those documents were not genuine. The Applicant simply stated that they were genuine and he was not aware that there were false documents in Pakistan. The Tribunal did not accept that the Applicant was unaware of false documents in Pakistan given the country information about the prevalence of such documents in the community.
The Tribunal did not accept that those documents were genuine and did not accept that the Applicant had received the threats as claimed. The Tribunal questioned the demand for money in the letter. The Applicant explained that, because his cousin was a successful businessman in the region, he was told to pay the two million rupee fine. The Tribunal asked the Applicant why then would he be asked to pay five million rupees and the Applicant replied that, perhaps because he had travelled overseas, he was seen as rich in his village. But the Applicant confirmed that his father only ran a small business and that the Applicant had stopped his international travel. He confirmed that he had been earning money as a squash coach, which was not a lucrative business, and he had been present in the Peshawar region and doing that since September 2010, so it would be obvious that he was not making huge amounts of money as a squash professional. Given those explanations, the Tribunal considers that the claim that he was extorted was not true.
The Applicant had claimed that, after he received these threats, he left Peshawar and went to Lahore until he came to Australia, but the Applicant did not disclose the Lahore residence in his list of residential addresses in which he had lived within the last 30 years. The Applicant was asked if he had resided anywhere else, even for a short period, and he said that he had not. The information from the Applicant’s visa application, to come to Australia, disclosed that the Applicant made his application in Islamabad and that all the documents he had relied on had been attested to in Islamabad in December 2014. His health insurance had been issued in Islamabad on the morning of 5 December 2014 and he had departed from Islamabad for Brisbane in January 2015. The signed letter, about his squash matters, was from a person in Peshawar dated 4 December 2014. There was a bank document dated 3 December 2014 from Peshawar.
The Tribunal noted that this information demonstrated that the Applicant was getting documentation from Peshawar and lodging it at the High Commission, at a time that he was claiming to be residing elsewhere, most notably Lahore. The Applicant said that he travelled to Islamabad to lodge documents at the commission and it was that his brother sent him the information. The Tribunal did not accept that explanation and noted that Islamabad was an hour travel from Peshawar.
The Tribunal said that this demonstrated that the Applicant was, in fact, not in Lahore but was residing in Peshawar, where the documents he relied upon were obtained, and he travelled from Peshawar to Islamabad to lodge the application.
The Tribunal also asked him about his delay in coming to Australia. The Applicant said he had difficulties with the Taliban in September and October 2014 and left Peshawar in late October, but he did not seek a visa to come to Australia until December 2014. The Tribunal had concerns with this delay in applying to leave Pakistan given he had a visa, and the capacity as a squash player with an international ranking, to travel overseas. The Applicant said that he received the visa to come to Australia on 3 January 2015 and he arrived in Australia on 22 January 2015.
The Tribunal asked why he delayed coming to Australia and he said that he was in Lahore and he could not get on any flights because of the Christmas period of travel. However, the Tribunal noted the Applicant had, in fact, made a reservation to travel to Australia from Islamabad on 5 December 2014. The Applicant had booked and flew on the flight that he had, in fact, arranged in December 2014. The Tribunal did not accept that he was struggling to depart as he claimed.
The Tribunal found that the Applicant had not been threatened or harmed by the Taliban because he played squash, coached squash or coached girls’ squash. The Tribunal considered that the Applicant concocted his claims and evidence regarding this and the Tribunal noted that there was, apart from one particular woman who went to Canada because she had been threatened or harmed in regards to playing squash, no material that suggested that squash players or officials were threatened in Peshawar.
There was also country information that squash players were feigning threats by the Taliban in order to leave the country and reside elsewhere. The Tribunal also noted that there is a strong squash community in Peshawar and that there are a number of high profile former players who are playing squash and are still active in the squash community as coaches and administrators who are living in Peshawar. There is no information that any of these persons have ever been threatened or harmed by the Taliban for their activities and they keep continuing with their activities in Peshawar.
The Applicant used the example of the female squash player I had just mentioned as showing that this was something that showed what he was saying about coaching female players as being correct. The Tribunal did not accept this saying that her circumstances were quite different from the Applicant’s and that her family have remained in Peshawar.
The Tribunal looked at all other aspects of the claim and came to the conclusion that the Applicant did not meet the criteria as a refugee.
The Tribunal also looked at the complementary protection criteria and came to the view that the Applicant was not a person in respect of whom Australia had protection obligations pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth).
For those reasons the Tribunal affirmed the decision not to grant the Applicant a protection visa.
By an amended originating application that was filed on 17 November 2021 today’s proceeding proceeded upon two grounds.
The First ground relied upon was that “2. That the Tribunal had no probative basis for finding that the Applicant had coached girls before 2014”
The second ground relied upon was that “3. The Tribunal had no probative basis for its “concerns about the veracity of the applicant’s claims” to have been threatened by the Taliban by letter and not in person”.
The first ground takes issue with the findings that are in paragraph 26 of the Reasons of the Tribunal. As I have previously indicated, the Tribunal had considered that the Applicant had been conducting clinics and coaching sessions for an extended period and that the clinics and coaching included boys and girls. The Tribunal did not accept that the Applicant started coaching girls in January 2014 or became more prominent such that he came to the attention of the Taliban.
The Applicant says that the Tribunal’s logic was faulty in coming to this conclusion. It was submitted that the evidence before the Tribunal was as the Applicant had said; that he had been coaching whilst he was still a professional player; that he did not do coaching on a permanent basis but if someone requested him to give a session for one or two hours and coach for them he did that. It was submitted that this coaching was not serious, but in 2014 it did become serious. It was submitted that the applicant said it was then that he started also coaching girls.
The information that the Tribunal had about the Applicant’s coaching is found at CB122 and following. In one reference, dated 1 January 2010, a former world number 2 squash player says about the Applicant that:
…He has the ability to impart coaching in group as well as individual to the Junior/ Senior players. He has also attended Coaching Clinics in NWFP, Peshawar. Now he is presently a junior players Coaching in Peshawar. He is young, hardworking, energetic and a healthy sportsman. He can do any kind of squash Assignment in a good manner.
The NWFP Squash Association certified on 5 May 2009 that:
1.It is certified that [the Applicant] from Peshawar has a sound experience in the field of squash coaching. He has attend the Level-I coaching course recognized by the Asian Squash Federation.
2.He can do any coaching assignment and produce a good result…
A former world squash champion wrote on 1 August 2008 that:
It is certified that [the Applicant] of Peshawar is an experienced player, participated in National/International tournaments and in these tournaments he performed well. He has ability to impart coaching in group as well as individual to the Junior/Senior players. He has also attended coaching clinics in NWFP, Peshawar. Now he is presently a junior players Coaching in Peshawar …He can do any type of squash assignment in good manner.
A certificate from the Directorate of Sports & Youth Affairs said that:
[The Applicant] is an international Squash Player and has represented Pakistan in junior Squash Tournaments. He also has the experience of conducting coaching/Training camps of Under-14 and Under-17 players. He has conducted many squash youth camps in the Province as a coach very successfully. His performance as players as well as Coach has been quite satisfactory.
The Squash Association, in an undated reference, which is not very helpful, simply says that: “[The Applicant] is a player of NWFP Squash Association and playing squash for the last 10 years”.
The Applicant has a certificate from the Pakistan Sports Board that he had been in the Youth Summer Training Camp and that is dated 1 August 2008.
Another reference from a different squash professional dated 8 June 2010 said that:
[The Applicant] of Peshawar is an experienced player, participated in National/ International tournaments and he performed well in these tournaments. He has the ability to impart coaching in group as well as individual to the Junior/Senior players. Now he is presently our Junior players coaching in (Red Bridge) Sports Complex London UK. He is Young, hardworking, energetic and healthy sportsman. He can do any type of squash Assignment in good manner.
From the same person, there is a reference dated 1 March 2009, saying that “[The Applicant] of Peshawar is an experienced player, participated in Nation/International tournaments of Squash. He also won a Red Bridge League tournament in London UK”.
What the Applicant says is that the Tribunal has done is to use those references together with the fact that the Applicant has not been a professional, or been active professionally, since 2011, and with the fact that he has not travelled since September 2010, and with the fact that he has lived in Peshawar since that time, to then conclude that the Applicant has been coaching since 2010. Having come to that conclusion and then noting that there has been no cessation or adjustment to his working life since that date, the AAT has inferred that he did not begin his coaching career in January 2014 but had had been doing that for some time previously.
However, the Applicant says that there was no evidence, on any of that material, that the Tribunal could infer that he was coaching both boys and girls from that time. Notably none of the references (that I have read into the record) speak of the Applicant coaching girls. The Applicant submits that this means the only evidence, before the Tribunal, was that of the Applicant who said that he coached girls from 2014 and this is what brought him to the attention of the Taliban.
The Applicant submits that the finding that was made, in paragraph 26, is a finding that simply should not have been made. That finding, it is submitted, influenced the final decision and cannot be excised from the final decision. This means that the error amounts to a jurisdictional error.
It seems to me, though, that the “logic” of such a claim cannot be made out. Whilst it is true that the references do not speak of the Applicant coaching girls, neither do those references speak of the Applicant coaching boys. All that is said is that he coaches players at junior and senior levels and that he is competent and skilled in doing that coaching.
It is that coaching that has been what the Applicant has been doing, in effect, fulltime since September 2010, according to the Tribunal. Given that the Tribunal has found that there has been no increase, cessation or change to what he has been doing since September 2010 and the Tribunal has accepted that the Applicant has been coaching girls, it is an open conclusion for the Tribunal to reach that he has been coaching girls during the whole of that time and that the coaching of girls did not just magically begin in January or February of 2014.
This was something that was open to the Tribunal on the evidence. It would seem to me, on this evidence, that there was “a probative basis” for coming to that particular finding. Because such a finding was open to the Tribunal, there has been no jurisdictional error illustrated.
The second ground is put in this way. The Tribunal has said that the fact that the Applicant has not been personally approached by the Taliban in these circumstances, causes the Tribunal to have concerns about the veracity of the Applicant’s claims. The Applicant says that the Tribunal has based this on no evidence whatsoever and that such was incapable of being derived from common knowledge or ordinary human experience. The concerns were based on a conjecture that one would think that the Taliban, if they have an opportunity, would approach the Applicant and actually threaten him.
The Applicant submits that because this was not a finding that the Tribunal was entitled to make, and even though it was something that only led to a concern, it was something that infected the rest of the credibility finding, such that one cannot carve that away. This is so because, if it had not been taken into account, there was a possibility that another finding may have been able to be made. Therefore, it amounts to a jurisdictional error.
However, it seems to me, again, that the Tribunal was doing exactly what it is supposed to do and that is to critically assess the claims that were being made.
The Applicant, at the beginning of his application, spoke of the Taliban as a terrorist organisation; that it was responsible for a number of atrocities; that it would kill indiscriminately and was saying that it had no compunction in killing someone, in effect, in broad daylight if that person had not met with their demands. This is a reference to the fate of the cousin of the Applicant on his father’s side.
The Applicant had submitted that the Taliban was an organisation that exists to instil fear into others, so that its demands are met, and that they have a base objection to the coaching of women playing squash. For an organization of that type to solely rely on a letter given to another person and another letter slid under a door, to ensure that a person did as the Taliban wanted, does seem, according to the Tribunal, somewhat bizarre. The Tribunal looked at whether the Taliban could have been able to personally deliver the message. Given that the employer of the Applicant and the squash courts, where the Applicant would be doing at least some of his coaching, were not in an army zone and, therefore, not under the protection of the army, it was well and truly open for the Tribunal to wonder why an organisation such as the Taliban would not make their presence well and truly known to the Applicant.
The Taliban could not know for certain that their threats, their serious threats, had actually been passed on or made known to the Applicant. The Applicant had said that the Taliban had more fire power than the police and that the police will not investigate the Taliban. If all of those matters are correct, it was well and truly open for the Tribunal to ask itself why it was that the Taliban did not make this threat personally to the Applicant to ensure that there was compliance with what it was that they wanted him to do.
And that is all it was from the Tribunal’s point of view. It was something that gave them concerns about the veracity of the Applicant’s claims. That is, if it were that the Taliban were seriously wanting to stop this man from coaching girls or coaching anyone for that matter, given the nature of these written threats, and wanted him to pay five million rupees, what is it that you would expect a terrorist organisation to do?
Now, whilst it may be conjecture, whilst it may be an inference, whilst it may be, as it were, an exercise in common sense, it, nevertheless, was something that a Tribunal is entitled to do in order to complete its statutory duty of assessing the claims. It seems to me the Tribunal was quite within its power and there was certainly sufficient cause, taking into account all of the circumstances with which they were appraised, for them to say what they did at the end of paragraph 27 of their Reasons.
I do not find that any jurisdictional error has been made out by ground 2.
Having come to those conclusions I dismiss the application with costs in the scale sum of $7853.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 28 March 2022
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