FCB18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 250

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FCB18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 250  

File number: MLG 2934 of 2018
Judgment of: JUDGE BLAKE
Date of judgment: 4 April 2023
Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether failure to comply with Ministerial Direction No 56 and Guidelines – whether failure to afford procedural fairness – failure to consider all claims – whether overlooked corroborative material – HELD no jurisdictional error – application dismissed.
Legislation:

Migration Act 1958 (Cth) ss 5J(1)(c), 36(2)(a), 36(2)(aa), 36(2A), 36(2B)(a), 424AA, 424AA(1)(b), 425, and 499(2A).

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).

Cases cited:

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZQKE v Minister for Immigration and Citizenship [2012] FCA 514
Division: Division 2 General Federal Law
Number of paragraphs: 58
Place: Melbourne
Counsel for the Applicant: Ms Chan
Solicitor for the Applicant: JT Lawyers
Counsel for the Respondents: Mr Barrington
Solicitor for the Respondents: Mills Oakley Lawyers

ORDERS

MLG 2934 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FCB18

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE BLAKE

DATE OF ORDER:

4 APRIL 2023

THE COURT ORDERS THAT:

1.The Application filed on 1 October 2018 be dismissed.

2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.

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

JUDGE BLAKE:

INTRODUCTION

  1. This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 31 August 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a protection (Class XA) visa (‘visa’). 

  2. For the reasons that follow, I have decided to dismiss the application for review.

    BACKGROUND

  3. The Applicant is a Pakistani national. The Applicant arrived in Australia on 3 January 2013 on a student visa. He applied for a protection visa on 15 May 2015.

  4. On 11 August 2016, the Applicant attended a Protection Visa interview (‘PV interview’). On 19 August 2016, the delegate refused to grant the Applicant the visa.

  5. On 31 August 2016, the Applicant appealed to the Tribunal for review of the delegate's decision.

  6. On 30 August 2018, a hearing was held at the Tribunal. The Applicant attended the hearing.

  7. On 31 August 2018, the Tribunal affirmed the decision not to grant the Applicant the visa (‘Decision’).

  8. The Applicant filed an application to review the Decision along with a supporting affidavit in this Court on 1 October 2018.

  9. Procedural orders were subsequently made to ready the matter for hearing. The Applicant ultimately filed an Amended Application for Review (‘Application’), an affidavit of Roman Huy Gia Lam and an outline of submissions on 27 January 2023. The Minister filed a Court Book, an outline of submissions and a list of authorities.

    THE APPLICATION

    Ground 1

  10. The first Ground of Review in the Application is as follows:

    1.The Second Respondent failed to comply with Ministerial Direction No. 56 in contravention of s499(2A) of the Migration Act 1958 and/or failed to correctly apply the relocation test amounting to a failure to perform its core function of review.

    PARTICULARS

    a.The Second Respondent’s decision was affected by legal error as the Second Respondent failed to adequately consider or take into account and/or give genuine consideration to the grounds upon which the Applicant’s claim is made.

    b.The Second Respondent failed to take into account the PAM 3 Refugee and Humanitarian - Complementary Protection Guidelines and PAM 3 Refugee and Humanitarian – Refugee Law Guidelines when it made a finding on his ability to relocate unreasonably and failed to assess the practical challenges that amount to persecution for the Applicant. It suggested that due to his education, his age, his ability to speak Urdu, English as well as Pashtun, his resilience to move to Australia and concluded he is able to relocate safely.

    c.The Second Respondent failed to ask if the Applicant in fact have his own issues separate to that of his family which may amount to serious harm in relocating to Punjab.

    d. The Second Respondent did not fully address or respond to the Applicant’s claims that there are imminent threats from the Taliban and other extremist organisations as summarised at para [13] of the decision.

  11. Under this ground, the Applicant contends, inter alia, that the Tribunal has failed to actively intellectually engage with the substance of the ‘PAM 3: Refugee and Humanitarian – Refugee Law Guidelines’ (‘RL Guidelines’) and the ‘PAM 3: Refugee and Humanitarian – Complementary Protection Guidelines’ (‘CP Guidelines’) (collectively, ‘the Guidelines’), as required by section 499(2A) of the Migration Act 1958 (Cth) (‘Act’) and Ministerial Direction 56.

  12. The Applicant made the following submissions in writing (about the RL Guidelines): 

    (a)‘a decision-maker should take into account whether the person can safely and legally access the area upon returning to the receiving country’ (at section 8.1 of the RL Guidelines);

    (b)‘in considering whether a person ought to have availed themselves of the protection of the country from which it is claimed there is a well-founded fear of persecution, the circumstances of the case had to show that it was reasonable, in the sense of practicable, for the person to relocate to a safe area of the country. Refer to SZATV at [24]’ (at section 8.1 of the RL Guidelines);

    (c)‘the findings of real chance and the relationship between that chance and all areas of the country requires a methodical approach and reasoning. Where there is not a real chance of persecution occurring in particular areas of the country, decision-makers should:

    -     note the factors that show an absence of the real chance of persecution in a safe area

    -     ensure that the contrasted difference between the safe areas and the areas which are not safe are demonstrated sufficiently

    -     ensure that the “area” is described in the decision.’

    (at section 8.3 of the RL Guidelines);

    (d)‘the requirement to consider the safety of the journey from the point of return in a country to the point of safety is not a new consideration. It was a necessary step for a decision-maker to consider prior to enactments under the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). In order to state that a person did not have a well-founded fear of persecution on return to their country in a particular area it was only logical that the safety of the route needed to be considered whether the person was to travel to their “home region” or some other place of safety. Refer to, for example, SZQKE v Minister for Immigration and Citizenship [2012] FCA 514’ (at section 7.3 of the RL Guidelines);

    (e)‘It would seem a logical jurisdictional fact to establish the safe access and lawful access to a place of safety on return under s5J(1)(c) otherwise it would be difficult to conclude that the real chance of persecution does not exist in relation to all areas of the receiving country. Factors to consider:

    -     having determined the area of safety, determine the likely area of return (if returned)

    -     consider the routes and methods of travel available and the safety of each

    -     determine whether any formal legal requirements are to be met for the travel (such as having certain papers or passes)

    -     consider whether the applicant has particular circumstances that may put them in danger whereas other persons in a similar position may be able to travel safely’

    (at sections 7.3 and 8.3 of the RL Guidelines); and

    (f)‘Circumstances that would seem to go to the very question whether the person has safe access or any access to a safe area should be considered’ (at section 7.3 of the RL Guidelines).

  13. The Applicant also drew the Court’s attention to the following statements in the CP Guidelines:

    9.1 “when assessing whether it is reasonable for an applicant to relocate and in applying the test, decision makers need to consider the practical realities of relocation for the applicant and their particular circumstance in finding that relocation is a realistic and reasonable option”;

    9.2 “Merely listing the circumstances relevant and stating that they have been considered is insufficient. Those circumstances need to be assessed against the impact of the relocation and a failure to do so could result in not demonstrating that the relocation is reasonable in the sense of practicable”;

    9.3 “the practical realities of relocation must be carefully considered. The range of realities that may need to be considered extends beyond physical or financial barriers to the quality and adequacy of internal protection in terms of civil, political and socio-economic human rights”;

    9.4 “In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, [protection should be granted]”;

    9.5 “In the context of assessing whether a non- citizen could reasonably relocate for the purposes of s36(2B)(a), it will be necessary for a person to be free from a real risk of suffering significant harm as defined in s36(2A)”;

    9.6“When considering whether there is an area in a non-citizen's country of nationality or former habitual residence where there would not be a real risk that he or she would suffer significant harm, decision makers must turn their attention to the non-citizen's personal prospects of suffering significant harm”.

  14. The Applicant contends that a review of the Decision discloses no engagement by the Tribunal with the matters specified above. It is submitted that the Court should draw the inference that the RL Guidelines and the CP Guidelines have not been considered. The Applicant also submitted that the failure to take account of the CP Guidelines could also be characterised as a failure to correctly apply the relocation test which, inter alia, requires the Tribunal to undertake a ‘fact intensive assessment’.

  15. The Minister contends that there has not been any failure to comply with Ministerial Direction 56 or the Guidelines. The Minister says that firstly, the Guidelines have been taken into account as far as they are relevant and secondly, if there has been a failure to take account of the Guidelines, that any error is not material given the nature and content of the reasons of the Tribunal.

  16. In assessing the competing submissions, it is necessary to have regard to the reasons given by the Tribunal. In the Decision, the Tribunal:

    (a)set out the criteria for the grant of a protection visa at paragraphs [5]-[9] of the Decision;

    (b)expressly referred to Ministerial Direction 56, the RL Guidelines  and CP Guidelines at paragraph [10] of the Decision;

    (c)summarised the Applicant’s claims at paragraphs [11]-[14] of the Decision including that the Applicant was born in the Qazi Abad District of Akora Khattak township in the Khyber Pakhtunkhwa province (at [11]), that his family home is in Akora Khattak near the Darul Uloom Haqqania Madrassa, that he and his family were supporters of the ANP, that he assisted his father with ANP activities, and that he provided assistance to Internally Displaced Persons (‘IDP’s’) (at [13]);

    (d)accepted the Applicant’s identity at paragraph [17] of the Decision;

    (e)set out the background to the anti-Taliban conflict at paragraphs [25]-[28] of the Decision and the background to the ANP at [29]-[32] of the Decision;

    (f)set out the Applicant’s claimed personal experiences at paragraphs [33]-[41] of the Decision, noting at [41] that all the Applicant’s family members have now relocated away from Akora Khattak and have not suffered serious harm;

    (g)accepted that the Darul Uloom Madrassa was a ‘breeding ground and sanctuary for militants and continues to operate’ (at [28],[42]), that the Applicant was an ANP member and that his father was the General Secretary of the ANP, that the Applicant campaigned for the ANP, and that the Applicant and his family were involved in assisting IDP’s (at [42]);

    (h)considered a range of country information pertaining to the Applicant and his circumstances at paragraphs [43]-[52] of the Decision;

    (i)among other things, did not find convincing the Applicant’s evidence that he had been targeted and subjected to death threats by people from ‘this Madrassa or TTP members more generally’, considered that ‘the Applicant does not face a real chance of suffering persecution involving serious harm from TTP members or militants generally due to his membership of the ANP and ANP activities and/or an actual or imputed political opinion or opposition to the TTP’, and did not accept ‘the applicant’s assertion that he has been targeted by the madrassa people and they will chase him if they hear about him having returned to Pakistan or see him’ (at [52]);

    (j)considered the relocation of the Applicant’s family away from Akora Khattak at paragraphs [53]-[56] of the Decision;

    (k)considered the position of the Applicant as a returnee from the West before concluding at [59] that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act;

    (l)considered whether the Applicant satisfied the complementary protection criterion in section 36(2)(aa) of the Act at paragraphs [61]-[67]. The Tribunal concluded at [65] that there is not a real risk that the Applicant would suffer significant harm. The Tribunal also stated at [66] that it would be reasonable for the Applicant to relocate away from Akora Khattack, ‘if concerned’ about the proximity to the Darul Uloom Haqqania Madrassa located there, to somewhere like Attock in Punjab, as his parents and brother have done.

  17. A critical issue emerged between the parties during the hearing. That issue concerns whether the Tribunal accepted the Applicant’s claims as giving rise to a real chance of persecution (within the meaning of the Act) if the Applicant were to return to his home area of Khyber Pakhtunkhwa. The Applicant contended a proper reading of the Tribunal’s reasons disclosed that the Tribunal did accept that the Applicant faced a risk of persecution in his home area. The Minister submitted that a proper reading of the Tribunal’s reasons reveals that the Tribunal did not accept the Applicant faced a risk of persecution in his home area or anywhere else in Pakistan.

  18. On one view, it may be said that there is some ambiguity about the Tribunal’s findings on the above issue. That ambiguity was emphasised by the Applicant. The Applicant pointed out that at paragraph [59] of its reasons, the Tribunal stated it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) ‘for the reasons given above’. The Applicant submitted that the ‘reasons given above’ includes the Tribunal’s reasons set out at paragraphs [53]-[56], in which the Tribunal examines the Applicant’s family relocation away from Akora Khattak. The Applicant says it is evident that the conclusion in [59] is based upon the Tribunal’s reasons set out at paragraphs [53]-[56]. Moreover, the Applicant says that it is clear from paragraph [55] of the reasons that the Tribunal did not make any independent finding as to whether he would face a real chance of persecution if he returned to Akora Khattack, because the proposition put to the Applicant by the Tribunal as noted in paragraph [55] was that ‘it would not seem that he would face a real chance of persecution if he, like other family members, moved away from Akora Khattak’. The Applicant also submitted that there was no explicit finding by reference to a defined area of Pakistan for the Court to be satisfied that the Tribunal had unequivocally rejected the existence of a real chance of persecution to the Applicant if he were to be returned to Akora Khattak. The Applicant says that a finding that he would not face persecution in Akora Khattak cannot be implied in circumstances where the Tribunal stated at paragraph [55] that ‘it would not seem he would face a real chance of persecution if he moved away from Akora Khattak’.

  19. The submissions above were carefully and competently put by Counsel for the Applicant and have some force. I have considered them closely. Ultimately, however, the submissions by the Applicant set out above cannot in my view be sustained when one has regard to paragraph [52] of the Tribunal’s reasons. That paragraph is as follows:

    [52]While the Tribunal accepts that the applicant and his family members are ideologically opposed to the religious leaders and students of the Darul Uloom Haqqania madrassa in Akora Khattak, and accepts they may at some time have been threatened by them or even been asked to pay fines for supporting the ANP or have been told to stop supporting the ANP, the Tribunal did not find convincing the applicant’s evidence that he had been targeted and subjected to death threats by people from this Madrassa or TTP members more generally. In this regard the Tribunal did not consider that the applicant satisfactorily explained why, if his father was subjected to harassment and told to pay a fine in May 2009, under threat that family members would be killed, nothing further had happened until the applicant was similarly threatened in late 2011. The applicant’s comments that there was a military operation in 2009 contradicted his statement that there were no military operations in his area; that even though they requested there be an operation in their area nothing was done; and that 'these people’ were always still in the madrassa. Given the IDPs returned to their home areas later in 2009 following the PAF offensive in Swat from May-July 2009, the Tribunal also found unconvincing the applicant’s comment that the militants turned their attention to him in late 2011 (two years later) because he helped the IDPs, threatening to kill him if he did not pay PKR 1 million and quit his ANP activities. Notwithstanding the applicant’s comments that his family members curtailed their activities, given their proximity to the madrassa, it also seems that militants from this madrassa, if they wished to harm the applicant and/or his family members, would have had many opportunities to do so from the time of the first claimed threat to the applicant’s father in May 2009 until the applicant left Pakistan in January 2013, and his family members thereafter. In particular, this includes the period after the claimed call in May 2012 where the applicant states he was asked to pay PKR 2 million and again warned to quit his ANP activities, and was told he would definitely be killed this time after he stated he could not support a terrorist organisation. Rather than any action being taken against the applicant, however, he indicated that a few weeks later he was approached by a group of Taliban who beat him after he failed to respond when they asked him why he had not yet met their demand (first issued in late 2011), but then walked after local people intervened. In this context, and noting the country information regarding the TTP retaining the capability to undertake target killings in Khyber Pakhtunkhwa, the Tribunal finds it difficult to believe that if the applicant was targeted in the way he implies, that TTP members would not have killed or abducted him when he claims they approached him, asked why he had not met their demands, and assaulted him; or harmed him subsequently before he departed Pakistan in January 2013, or subsequently harmed other family members (noting that family members never complied with demands to pay fines or cease supporting the ANP). For these reasons the Tribunal does not accept that the applicant was personally threatened by militants in late 2011 or May 2012 or attacked and beaten by militants in 2012. Noting the DFAT assessment that ANP members currently face a low risk of violence from political or militant groups based on their political affiliations, the Tribunal considers that the applicant does not face a real chance of suffering persecution involving serious harm from TTP members or militants generally due to his membership of the ANP and ANP activities and/or an actual or imputed political opinion of opposition to the TTP. Therefore the Tribunal does not accept the applicant’s assertion that he has been targeted by the madrassa people and they will chase him if they hear about him having returned to Pakistan or see him.  

  1. The Tribunal’s reasons in paragraph [52] above are critical in a number of ways. There is a rejection by the Tribunal of the Applicant’s claims to fear harm. The Tribunal states expressly that it did not accept that the Applicant would suffer a real chance of persecution. The Tribunal also did not accept the Applicant’s claims to have been targeted by the persons from the Madrassa. In making these findings, the Tribunal must be understood to have reached the conclusion that the Applicant was not at risk at all. He was not at risk anywhere, including in Akora Khattak in the Khyber Pakhtunkhwa province, because his claims had not been accepted. Indeed, the Tribunal stated he did not face a real chance of suffering persecution.

  2. The Applicant’s answer to the above is, in part, to focus on the words ‘for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a) of the Act’ (emphasis added) at the end of the finding in paragraph [59] of the Decision. The Applicant says in effect, that the presence of these words needs to be taken account of, and it can only mean that the ultimate conclusion of the Tribunal rests upon not only what is set out in paragraph [52] of the reasons, but also what is contained within paragraphs [53]-[56] of the reasons.

  3. I am unable to accept the Applicant’s submission. The reasoning set out in paragraph [52] of the Decision stands on its own as a clear rejection of the Applicant’s claims to fear harm and subsequent and separate finding that the Applicant does not face a real chance of persecution involving serious harm. The better reading of paragraphs [53]-[56] of the Tribunal’s reasons is that they contain alternative, or other reasons for the Tribunal’s conclusion. Aside from the independent findings made at [52], such a conclusion is supported by what follows.

  4. At paragraph [56] of the Tribunal’s reasons, the Tribunal states:

    [56]Noting that the .applicant’s [sic] immediate family members have all moved away from Akora Khattak and there is nothing to indicate or suggest that they have suffered treatment amounting to serious harm, the Tribunal finds that there is no reason why the applicant could not also move to Attock where his parents and brother live, or elsewhere in Punjab, where he would not be in close proximity to the religious staff and students of the Darul Uloom Haqqania madrassa.

    (emphasis added)

  5. The words ‘there is no reason why the applicant could not also move to Attock’ are not a statement to the effect that the Applicant must move to Attock in order to be safe.  The Tribunal is rather stating that the Applicant ‘could…also’ move to Attock. The Applicant ‘could…also’ do other things or live elsewhere.

  6. Later in its reasons at paragraph [66], the Tribunal states:

    [66]In this context the Tribunal considers that it would be reasonable for the applicant to relocate away from Akora Khattak, if concerned about the proximity to the Darul Uloom Haqqania madrassa located there, to somewhere like Attock in Punjab province, as his parents and brother have done;

    (emphasis added)

  7. The words ‘if concerned’ also support a conclusion that the Tribunal was engaged in alternative reasoning when it came to addressing a move away from Akora Khattak to a place like Attock. In [66], the Tribunal is not saying that the Applicant must leave Akora Khattak, or live in Attock in order to be safe. What the Tribunal is saying, is that ‘if” the Applicant remains ‘concerned’ about returning home given its findings, he could move to somewhere else like Attock.

  8. The conclusions I have reached above mean that I accept the Minister’s submission that if there was any error with respect to the Tribunal’s findings on relocation, that error was not material.

  9. I deal briefly with the other submissions of the Applicant in the event I am found to be in error in relation to the conclusions I have set out above. As noted earlier, those submissions are to the effect that the Tribunal has failed to apply and meaningfully engage with the requirements set out in the Guidelines. I find the Tribunal has considered and applied the Guidelines for the reasons which follow.

  10. At paragraph [10] of its reasons, the Tribunal expressly states that it has taken account of the Guidelines. While of itself not conclusive of the issue, this is a powerful indicator that the Tribunal had in mind the Guidelines when it approached the task before it.

  11. The Applicant submitted there was a failure to take into account and apply the RL Guidelines insofar as they deal with safe and legal access to areas upon returning, the requirement to consider the safety of the journey, and whether there is safe access or any access to a safe area. I accept that the Tribunal did not set out in great detail whether the Applicant could safely and legally access areas within Pakistan. That, however, is explainable for the following reasons.  First, the Tribunal was satisfied that the Applicant could move to Attock and in that sense considered his ability to safely access that area. Second, the Applicant had previously moved safely around Pakistan, including to Rawalpindi. Third, the Applicant’s parents had moved to Attock. The Tribunal therefore did not need to examine in great detail the matters raised by the Applicant given his history of moves around Pakistan, the Applicant’s personal circumstances and the findings it had made. 

  12. The Applicant submitted that the Tribunal, among other things, failed to contrast the difference between the safe areas and areas which are not safe, and failed to adequately describe the area as required by the RL Guidelines. I do not accept this submission for the following reasons.  First, to the extent the Tribunal needed to identify any area, it identified the area as being ‘somewhere in Attock in Punjab’ (at [66]), or ‘elsewhere in Punjab’ (at [56]). As to the submission that there was a failure to contrast the difference between safe areas and other areas sufficiently, I note that it is apparent that the Tribunal undertook that exercise when all of the reasons are considered. At paragraph [42], the Tribunal accepted that the Applicant was born and grew up in Akora Khattak and also accepted various aspects of the Applicant’s claims. At paragraph [48], after reviewing Country Information, the Tribunal notes that ‘while militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. Khyber Pakhutnkhwa is included among areas that experience relatively higher rates of militant and sectarian violence’. At paragraph [50] of its reasons, the Tribunal notes that Country Information ‘seem to indicate that there had been two important factors that had led to a greatly improved security situation in Khyber Pakhtunkhwa’.

  13. Finally, insofar as the RL Guidelines are concerned, there is the Applicant’s submission set out in paragraph 12(b) above. The Tribunal did not need to refer to this aspect of the RL Guidelines expressly because it refers to an earlier version of the legislation.

  14. There are then the Applicant’s submissions in relation to the CP Guidelines.

  15. The Applicant submitted that the Tribunal failed to assess, inter-alia, the practical realities of relocation. The Tribunal did assess the practical realities of relocation to the extent that it was relevant to do so.  The Tribunal considered, among other things, that ‘the applicant is a fit and healthy, well-educated, 33 year old single man who speaks Urdu and English as well as Pashtun, has previously lived in Rawalpindi while attending University where he studied for a Bachelor of Economics and subsequently while working as an “intern” at a construction business to which his brother had ties.  He has also shown the capacity and resilience to move to a different country and culture when he established himself in Australia’ (at [56]). The Tribunal considered the Applicant’s family circumstances, i.e. that his family live in Attock (at [56]), which are part of his personal circumstances, as well as the practical realities which he faces. The Tribunal considered the situation the Applicant would face in the Punjab, acknowledging that some Pashtuns in Punjab have been subjected to harassment. In this respect, the Applicant was questioned about that issue, including being asked whether his father had experienced issues amounting to serious harm in the Punjab (at [55]).

  16. Insofar as the submission above extended to a failure by the Tribunal to consider the personal prospects of the Applicant suffering significant harm, this was also considered. As I have noted above, the Tribunal took into account the Applicant’s identity as a Pashtun moving into the Punjab area, but concluded that there was not a real risk of harm (at [55], [59]).

  17. For all of the above reasons, I dismiss Ground 1 of the Grounds of Review.

    Ground 2

  18. Ground 2 of the Grounds of Review is as follows:

    2.The Second Respondent failed to comply with s 424AA of the Migration Act 1958, failed to give the Applicant the hearing required under s 425, and/or otherwise failed to accord natural justice to the Applicant by failing to provide procedural fairness.

    PARTICULARS

    a.The Second Respondent failed to comply with the requirements in s 424AA(1)(b) and s 425 of the Migration Act 1958 in respect of adverse information, which the Second Respondent later relied on in its decision.

    b.The Second Respondent spent a great deal of time asking questions relating to the Applicant’s family back in Pakistan and not obtaining direct evidence known to the Applicant, and failed to put the Applicant on notice of issues the Tribunal was required (but failed) to determine, including the question of safe and legal access and whether relocation was reasonable and practicable.

    c.The Second Respondent on many occasions “put to the Applicant” adverse material but failed to offer the natural justice break or the very least advise the self-represented Applicant that he has the opportunity to consider it before providing immediate answers to them.

  19. During the course of oral submissions, the Applicant no longer pressed his assertion that the Tribunal failed to comply with section 424AA(1)(b) of the Act. Accordingly, the argument as pressed focused on whether there had been a failure to comply with section 425 of the Act or otherwise a failure to accord the Applicant procedural fairness.

  20. Annexed to the affidavit of his solicitor in the proceeding is a transcript of the hearing before Tribunal (‘Transcript’). The Transcript records the following exchange between the Applicant and the Tribunal:

    Member: The other thing I want to talk to you about is relocation, I spoke to you at the start of the hearing and that there has to be a risk that if you cross the country.

    So the law defines the fear of persecution the Australian law it also states the real chance of persecution relates to all areas of the country in Pakistan and you have indicated you have lived in Islamabad and Rawalpindi.

    Applicant: Yes sir.

    Member: And also members of your family your parents and brother have relocated to Punjab. The country information has indicated Punjab is about the safest in Pakistan. So I also need you to consider whether there is a real risk of serious harm if you suffer serious harm and in KP your home village and whether you could relocate to Punjab as your family members have and not faced risk of serious harm I will just read you the report that says about Punjab. I have mentioned before that the security situation varies between Pakistan’s provinces and regions they say that Punjab remains relatively free from generalised violence and level of violence is greater in KP. Depends on the location of Pakistan’s military operation. The report also indicated that there is a large Pashtun community living in Lahore. With approximately 30m million Pashtuns in Pakistan largest community is located in Karachi and in Bishala but particularly in Lahore I’m sorry. Pashtuns also live in Islamabad and Lahore and in urban areas of Pakistan. Say that the security situation for Pashtun and in line of general security across Pakistan. Pashtuns do not face high risk of violence and there are Pashtun community in Lahore and is a safe place for Pashtuns and other places of Pakistan. Now can you comment about your family situation.

  21. It is clear from the Transcript set out above that the Applicant was asked about relocation. In that sense, it can be said he was afforded procedural fairness. The point raised by the Applicant is, however, a narrower one. It is that the Tribunal did not question the Applicant or raise with him whether he could safely and legally access a safe area in Pakistan or whether it was reasonable for him to relocate in the sense of it being practicable. The Applicant submits that such a failure constitutes a breach of section 425 of the Act, and a failure to accord him procedural fairness. The Applicant also says that the questions put by the Tribunal misrepresented the correct test to be applied, and couldn’t reasonably have been understood by him to be an enquiry about matters that go to the practicality of possible relocation. In advancing this submission the Applicant relied on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

  22. In response to this submission, the Minister submitted that the Tribunal was not required to give the Applicant legal advice. I accept that the Tribunal is not required to give an applicant legal advice, however, I would not characterise the Applicant’s point that way. As Ms Chan for the Applicant put it, asking questions such as ‘would you have any difficulty travelling to Attock or Punjab?’ and ‘what practical problems might you face living in Punjab?’ is not the provision of legal advice.

  23. Procedural fairness requires the Tribunal to put an applicant on notice of critical issues, in particular, those issues that may be dispositive of a case. The Tribunal told the Applicant that a real chance of persecution must relate to all areas of Pakistan. The Applicant was on notice of the issues. Further, there is nothing to suggest that asking the Applicant about safe legal access to an area was a critical issue. The Applicant has travelled and lived there twice before. Put simply the Applicant was on notice and while the Tribunal may not have asked the questions to which the Applicant refers, it was not required to do so because it was not a critical issue in the case given the other matters to which I have referred.

  24. For these reasons, I would dismiss Ground 2 of the Grounds of Review.

    Ground 3

  25. Ground 3 of the Grounds of Review provides as follows:

    3.The Second Respondent failed to consider the applicant’s claim to fear harm arising from his “humanitarian work assisting innocent people displaced by the army offensive” (CB135[38]).

  26. In addition to the submission that the claim referred to above was not considered, the Applicant referred to Country Information cited by the Tribunal at paragraph [27] of its reasons that indicated that the TNSM movement ‘attacked targets in Swat which it deemed to be un-Islamic such as health workers, NGO workers, musicians, music stores, barbershops, schools and artists and used beheadings to advertise its strength’. The Applicant submitted there was a probative basis for the Tribunal to find that assisting IDP’s was humanitarian, or human rights work of the type that would expose a person to the risk of violence from the Taliban. 

  27. In relation to the above point, I observe that the Applicant never claimed to be engaged in un-Islamic activities. He never claimed to be a health worker or a NGO worker, though I accept he claimed to be assisting IDP’s which might well be regarded as humanitarian work. The critical issue remains, however, as to whether the claim as advanced was considered and dealt with by the Tribunal.

  28. At paragraph [13] of its reasons, the Tribunal summarised the Applicant’s claims. Relevantly to this Ground of Review, the Tribunal noted the claim that ‘when the Army began an offensive in Swat, Buner and Dir, many Internally Displaced Persons (‘IDP’s’) came to Mardan and Nowshera. Through a family friend they assisted many IDP’s and provided them with food rations and other necessities’.

  29. At paragraph [38] of its reasons, the Tribunal asked the Applicant a question about the gap between the first threat received by his father in May 2009 until late 2011. The Tribunal records that when the Applicant was asked why people would have switched from harassing his father to harassing him, he ‘indicated that it was because he had been involved in helping the IDP’s’. When the Tribunal asked the Applicant why the Taliban would be concerned about him assisting IDP’s, given it was humanitarian work assisting innocent people displaced by the army offensive, the Applicant said the TTP were against anything to do with the PAF and the government, including assisting the IDP’s.

  30. I have set out the above paragraphs because it is clear that the Tribunal understood the claim being advanced by the Applicant. It expressly referred to the claim in its reasons as noted above.

  31. The Tribunal also proceeded to deal with the claim. At paragraph [52], the Tribunal relevantly stated, inter alia that:

    [52]Given the IDPs returned to their home areas later in 2009 following the PAF offensive in Swat from May-July 2009, the Tribunal also found unconvincing the applicant’s comment that the militants turned their attention to him in late 2011 (two years later) because he helped the IDPs, threatening to kill him if he did not pay PKR 1 million and quit his ANP activities. Notwithstanding the applicant’s comments that his family members curtailed their activities, given their proximity to the madrassa, it also seems that militants from this madrassa, if they wished to harm the applicant and/or his family members, would have had many opportunities to do so from the time of the first claimed threat to the applicant’s father in May 2009 until the applicant left Pakistan in January 2013, and his family members thereafter.

  32. It can be seen from the above that the Tribunal dealt with the claim advanced by the Applicant. It considered the claim, but did not accept it.

  33. For the above reasons, I dismiss Ground 3 of the Grounds of Review.

    Ground 4

  34. Ground 4 of the Grounds of Review is as follows:

    4.The Second Respondent overlooked relevant, substantial and consequential material corroborative of the applicant’s claims and in so doing, fell into jurisdictional error.

    PARTICULARS

    a.The Second Respondent wrongly concluded that based on DFAT reports notes “…country information seemed to indicate that there had been two important factors that had led to a greatly improved security situation in Khyber Pakhtunkhwa and in Pakistan generally: the defeat of the Swat Taliban in 2009 and Operation Zarb-e-Azb and the NAP in 2014.” However, at para [45] &[46] the Tribunal appear to have fail to interpret and give weight to several other independent and reliable reports of reported attacks and acts of violence in Pakistan. It surmised that in 2015 “…the incidents of target killings continued to occur in Khyber Pakhtunkhwa province with 42 incidents resulting in 42 deaths and 13 injuries report in 2015.” And in 2016 “More recent, a July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence had been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the Village Peace Committee (VPCs).” From this reading it clearly reports an increase of killings and violence which is contrary to the latter conclusion reported at para [50] of the decision. Further, the Second Respondent failed to consider killings and acts of violence are of times unreported. Even in the DFAT report of 2017 notes at para [49] “These statistics largely derive from news reports, and may understate the number of casualties.”

    b.The Second Respondent appears to misinterpret the Applicant’s claim, as the Second Respondent response to unreported killing in the face of DFAT’s own reporting “…it seems insensitive to those who are victims to talk about a reduction in the number of victims, this is relevant to assessing whether there is a real chance that someone might be killed or seriously harmed in a terrorist incident.”

  1. Under this Ground of Review, the Applicant takes issue with the finding in paragraphs [50] and [52] of the reasons. In paragraph [50], the Tribunal states, inter alia, ‘the Tribunal put to the applicant that the country information seemed to indicate that there had been two important factors that had led to a greatly improved situation in Khyber Pakhtunkhwa and in Pakistan generally: the defeat of the Swat Taliban in 2009 and Operation Zarb-e-Azb and the NAP in 2014’. In paragraph [52], the Tribunal states, inter alia, ‘ANP members currently face a low risk of violence from political or militant groups based on their political affiliations’. 

  2. The Applicant submits that in reaching these findings, the Tribunal overlooked substantial and consequential material including killings by the Taliban of low level ANP members which are not reported (at [30] of the reasons); a speech by the chair of Pakistan’s Senate Standing Committee for Foreign Affairs noting the Taliban’s continued presence in the Swat region (at [44] of the reasons); a report dated May 2014 outing official claims that areas had been cleared of militants (at [44] of the reasons); a report dated 2015 which notes that incidents of target killings continue to occur in the Khyber Pakhtunkhwa province (at [45] of the reasons); and an article from July 2016 that reported a number of target killings and other attacks of violence in Swat with prime targets including the Village Peace Committee (at [46] of the reasons). In advancing this submission, the Applicant accepted that it was a matter for the Tribunal to attach weight to particular information as it sees fit, however submitted that there was no evidence of the Tribunal weighing and evaluating the relevant evidence.

  3. I have considered the Tribunal’s reasons. All of the material that the Applicant contends was overlooked by the Tribunal, is actually mentioned by the Tribunal in its reasons. In that context, it cannot be said that the Tribunal overlooked the material. Furthermore, it is a matter for the Tribunal as to what weight it gives to Country Information: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. When these matters are considered, it appears that the Applicant’s real complaint is that the Tribunal did not reach a different conclusion. That does not constitute jurisdictional error. It is well-known that is not the job of this Court to undertake merits review.

  4. For this reason Ground 4 of the Grounds of Review is dismissed.

  5. In light of the findings I have made above, the Application must be dismissed.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       4 April 2023

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SZQKE v Minister for Immigration and Citizenship [2012] FCA 514
Kioa v West [1985] HCA 81
Kioa v West [1985] HCA 81