FIW18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 659
•24 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FIW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 659
File number: MLG 3077 of 2018 Judgment of: JUDGE FORBES Date of judgment: 24 July 2024 Catchwords: MIGRATION – protection – application for judicial review of decision of Administrative Appeals Tribunal not to grant protection visas – where primary applicant fears harm due to Shia faith – where applicant claims family members killed by extremists – where there was no reporting of incidents – where adverse credit findings made by Tribunal - whether applicant is a high-profile or prominent Shia due to involvement in religious activities – whether Tribunal considered claims and integers of claims – whether claims clearly articulated or arise clearly from the materials – whether country information properly considered – whether risk is higher than low - whether findings and reasoning irrational - no error found Legislation: Migration Act 1958 (Cth) s 36, 65, 424A, 499 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
ELA18 v Minister for Home Affairs [2019] FCA 1482
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAPC v Minister for Immigration and Border Protection [2021] 95 ALJR 441
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2 ) [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1
SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109
SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421
SZUTM v Minister for Immigration and Border Protection [2016] FCA 45
SZULW v Minister for Immigration and Border Protection [2018] FCA 1335Division: Division 2 General Federal Law Number of paragraphs: 148 Date of hearing: 2 August 2023 Place: Melbourne Counsel for the Applicants: Mr Lessing Solicitor for the Applicants: Melbourne Law Offices Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3077 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIW18
First Applicant
FIX18
Second ApplicantFIY18
Third ApplicantFIZ18
Fourth ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
24 JULY 2024
THE COURT ORDERS THAT:
1.The Applicants’ amended application for judicial review filed 26 May 2023 be dismissed.
2.The Applicants pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date the matter was heard.
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 FORBES
INTRODUCTION
The applicants seek judicial review of a decision of the second respondent (the Tribunal) made on 18 September 2018. In that decision, the Tribunal affirmed a decision of the First Respondent’s delegate (the delegate) not to grant the applicants Protection (Class XA) visas under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicants rely on four grounds of review set out in their amended application filed on 26 May 2023. The common theme of the grounds is the applicants’ contention that the Tribunal fell into error by failing to consider or by failing to make findings about important aspects of the first applicant’s claims which, if properly considered, could have resulted in a different outcome on the review.
For the reasons set out below, I have concluded that the decision of the Tribunal is not affected by jurisdictional error. Accordingly, the application is dismissed.
BACKGROUND
The following background is derived from the materials in the Court Book and the parties’ written outlines of submissions. Unless otherwise stated, the following matters are uncontroversial or uncontested.
The first and second applicants are citizens of Pakistan. The first applicant arrived in Australia on 11 June 2008, as the holder of a student visa. The second applicant, the wife of the first applicant, arrived in Australia on 5 July 2009. The third and fourth applicants, who are their children, were born in Australia - but according to Pakistan’s citizenship rules were also citizens of Pakistan. The applicants identify as Shia Muslims.
On 14 March 2013, the first applicant applied for a protection visa. The second, third and fourth applicants applied for the visa as members of the first applicant’s family. The applications for protection were accompanied with a statement of claims and supporting documentation.
The first applicant’s claim centred around his fear of being persecuted in Pakistan due to his Shia faith. The first applicant claimed that he is well-known in Pakistan as a reciter of religious Shia verses, known as “Nohas”, which lament the tragedies surrounding the Shia Imams. He claimed that his reputation had risen after releasing a CD of verses on 14 November 2012.
The first applicant claimed that on or around 30 October 2012 he received threats from Lashkar-e-Jhangvi, a terrorist organisation, due to his prominent reputation and known support for the Shia faith. The person who contacted him allegedly threatened to kill the applicant if he hosted a religious ritual, known as 5 Muharram. The applicant claims to have reported the threat to the police.
On 20 November 2012, about 3 weeks after the threat had been made, the applicant hosted a 5 Muharram ritual at his home. He claims that when he was out of the home seeing off some important guests, two of his family members were gunned down by extremists. After this event the applicant claims to have fled to Lahore, before returning to Australia on 14 December 2012.
The first applicant also claimed that members of his wife’s immediate family were killed by extremists in their own home in a separate incident a few months later on 5 March 2013.
The applicants relied on these incidents of violence to justify that they have a “well-founded fear of persecution” and therefore, should be granted a protection visa. The first applicant claimed among other things that he would face a real chance of persecution when travelling to various parts of Pakistan in order to perform his role as a reciter of Nohas.
On 17 February 2014, a delegate of the Minister refused the application for a protection visa, finding that the applicants did not face a real chance of persecution on account of being prominent Shia. The delegate found that the applicants did not meet the criteria for a grant of a protection visa under s 36(2)(a) or under the complementary protection criterion in s 36(2)(aa).
The applicants then applied to the Refugee Review Tribunal (RRT) for review of the delegate’s decision. On 28 January 2015, the RRT once again refused the grant of protection visas.
The applicants applied to the Federal Circuit Court seeking judicial review of the RRT decision. The applicants claimed the RRT had made a jurisdictional error, by failing to consider whether the applicant faced a real chance of persecution when travelling to other parts of Pakistan for obligations associated with his religion as a Shia Muslim and reciter. On 1 September 2016, Judge Jones of the Federal Circuit Court made orders by consent remitting the matter back to the RRT (which was heard by the Administrative Appeals Tribunal (AAT)).
Administrative Appeals Tribunal
On 23 February 2017, the Tribunal invited the applicants to attend a hearing.
On 4 April 2017 the applicants’ representative provided written submissions to the Tribunal.
On 16 May 2017, the first and second applicants attended their first hearing at the AAT with the assistance of an interpreter and their legal representative.
On 9 and 13 June 2017 the applicants’ representative provided further submissions and supporting documents to the Tribunal, including a statutory declaration of Syed Arsalan Abidi and copies of recital CDs made by the applicant.
On 19 July 2017 the applicants were informed that the original member of the Tribunal was no longer available, and on 6 February 2018 the applicants were invited to attend another hearing before a different member. The applicants attended a scheduled hearing before the Tribunal on 4 April 2018.
On 26 April 2018 the applicants’ representative provided further written submissions.
On 7 June 2018 the Tribunal extended an invitation to the applicants to comment on adverse information, to which the applicants’ representative provided responses on 21 June and 12 July 2018. A further invitation to comment on information was sent by the Tribunal on 11 July 2018 and the applicants responded on 25 July 2018.
On 3 September 2018, the first and second applicants appeared before the Tribunal with the assistance of an interpreter and their representative. Following the hearing, the applicant’s representative provided further written submissions on 12 and 17 September 2018.
Tribunal decision
On 18 September 2018 the Tribunal affirmed the delegate’s decision not to grant the applicants’ visas. The Tribunal based its decision on the following reasons.
Threats Prior to and Incident on the 5th day of Muharram 2012
The Tribunal gave consideration to the claims that formed the basis on which the applicants feared a return to Pakistan, namely the threats the first applicant received on 30 October 2012 from a person who identified himself as being from Lashkar-e-Jhangvi and the events which followed on 20 November 2012 when the first applicant claims his mother and paternal uncle were shot to death at the family home by extremists after hosting a 5 Muharram religious event. The first applicant claimed to have been present and performing recitals at the event but left the home for a short period before receiving a phone call from a neighbour informing him of an emergency.
The Tribunal detailed the evidence provided by the applicants regarding the alleged threats on 30 October 2012 and the alleged incident on the 20 November 2012. That evidence included an affidavit from the neighbour who deposed to the first applicant’s requests for police protection after the threats and to having alerted the first applicant to the attack in his home. The Tribunal also considered an affidavit from the first applicant’s uncle who housed him in Lahore after he fled there on 24 November 2012.
Several letters were also provided by the applicant to support his claim about the incident which led to the death of his mother and uncle. Those letters included one from a purported NGO which attested to the incident and one from an organisation which produced the applicant’s Noha CD which also stated that the incident had occurred.
There were further letters from news agencies which attested to the attack and which spoke of orders made by the Sialkot Press Club which prohibited coverage of the incident for reasons associated with concerns about ongoing violence between Shias and Sunnis. The first applicant submitted a letter, purportedly signed by the General Secretary and the Senior Vice Chairman of the Sialkot Press Club, which explained the reasons for not allowing the publication of any coverage of the incident.
The correspondence from the Press Club also referred to the second incident relied upon by the first applicant, namely the claimed attack in which members of his wife’s family were killed by gunmen in their home on 5 March 2013. The Press Club letter states that they were instructed by authorities not to publish news of that incident - thus explaining why it too was not reported in the Pakistan media.
The applicant submitted many other documents in support of his claims, including country information in the form of news reports of terrorism in Pakistan and submissions by people who described the situation in Pakistan as not being favourable for the applicant and his family. The applicant submitted a petition he claims to have made to the Sialkot Courts outlining the events of 20 November 2012. He also submitted a letter from his lawyer which summarised a case in which he represented the applicant but who had decided to withdraw after receiving death threats himself. A statutory declaration from a friend of the applicant claims that he heard about the 20 November 2012 incident while he was at a meeting of a religious organisation in Pakistan.
After analysing the materials, the Tribunal concluded there were inconsistencies in the evidence provided by the first applicant, as his statements contradicted recorded events. For example. the applicant gave conflicting evidence about his whereabouts on 24 November 2012, shortly after the violent incident at his home. He also claimed in the most recent hearing before the Tribunal to have received threatening phone calls since arriving in Australia, commencing after December 2014, but this was over two years since the 5 Muharram incident.
Because of his reliance on documentation to support his claims, the Tribunal invited the applicant to respond to relevant DFAT information which reported that document fraud is endemic in Pakistan. The applicant denied that any of the documents he submitted were fraudulent.
After considering the first applicant’s responses to matters raised under s 424A of the Act the Tribunal found the applicant’s credibility to be lacking and his claims about the threats leading up to the 5 Muharram incident and the events during and after to be baseless. The Tribunal considered the inconsistency of the documents, alongside the epidemic of document fraud in Pakistan, in deciding to reject the applicant’s claims.
Explaining its credibility findings, the Tribunal said:
“[67] In considering the applicant’s overall credibility, I have taken into consideration my conclusions on the applicant’s individual submissions as detailed above. In summary I found the applicant’s claims to be unconvincing, including his response to the court documents showing the applicant to be present in Court when he had also claimed to be in hospital, his reasons for not informing the Tribunal of threatening phone calls while in Australia, his reason for why there was no reporting on the claimed murders in major terrorism tracking sites, his submission of documents which I found to not represent the Sialkot Press Club and the inconsistent statements between the witness and the applicant. I note that the applicant’s case is built in part upon documents, a source which the Department has flagged as being highly susceptible to fraud. Despite the applicant providing consistent information and corroboration by his wife, on balance I find that the substantial inconsistencies and independent information weighs significantly against the applicant’s credibility. As such I find that events leading up to, during and after the claimed 5 Muharram event did not occur. This being the central element of their claims I find that the applicant and his wife generally lack credibility having contrived a major element of their claim. As the basis upon which I make this finding is not the applicants’ oral evidence, I find that the first named applicant’s mental health concerns play no role in potentially explaining the inconsistencies. I find that the applicants have manufactured the central claims including supporting documents such as other’s statements and post-mortem reports of the deaths of family members.
[68] Having found the applicants’ credibility is lacking in the key claim that they have put forward I also find them not to be credible witnesses. As such I do not accept other claims including that suspicious people visit his family’s home, that the father and brother of the first named applicant received threats previously, that he received threats after arriving in Australia and that he initiated a court case against the police through a lawyer. I do not accept that he is a member of a well-known family in Sialkot, Pakistan, his father was the president of two religious organizations or his brother was the president of a religious organization. I do not accept that the applicant receives invitations to travel throughout Pakistan and internationally to recite Noha.”
Fear of attack as a Noha reciter
The Tribunal rejected the applicants claim that he had become a prominent and well-known religious reciter of Noha after the release of a CD on 14 November 2012. The Tribunal noted that the applicant had a limited following on his YouTube pages with around 40,000 views, compared with the hundreds of thousands or millions of hits received by other famous Noha reciters.
The Tribunal accepted that the applicant may be well-known in limited circles, but rejected his claim that he is famous, high profile or prominent in the wider Shia community.
The Tribunal found that the applicant did not feature in any reporting of high-profile and prominent reciters, that his social media presence was low and that any claimed notoriety was limited to a small circle of people. While noting that there was some evidence of a Noha reciter being attacked in 2006, the Tribunal put to the applicant that there was no evidence, regardless of the popularity of a reciter, that they would face a real chance of serious harm.
Referencing a DFAT report from 2017, which stated only “high-profile Shias” face a moderate risk of violence, the Tribunal concluded that any assessment of risk to the applicant should be based on him being Shia, rather than a high-profile professional Shia. Information provided by DFAT reported that there is a “low risk” of sectarian violence against Shia, generally supporting a finding that the applicant does not face a real chance of serious harm or a real risk of significant harm. This conclusion was also supported by statistics which outlined that the rate of terrorist attacks in the state of Punjab had reduced over time and are lower than in other parts of Pakistan.
Risk of harm because of mental health issues
The first applicant also claimed that he would face mental harm upon return to Pakistan, due to the limited psychological services available in the country. However, considering the first applicant’s financial situation and educational background, the Tribunal found that the first applicant would not struggle to access psychological services in Pakistan. Whilst the quality of the psychological services might be lower than Australia, that would not lead the applicant to face serious of significant harm.
The wife’s claims
The second applicant, the wife, also provided evidence and submissions to the Tribunal, expressing her fear of returning to Pakistan following the alleged death of family members and the prevalence of Shia persecution in Pakistan. The Tribunal referenced a DFAT country information report which outlined that Punjab, the second applicant’s former place of residence, presents fewer levels of sectarian violence compared to the rest of Pakistan. Again, the Tribunal rejected the wife’s claims regarding the alleged death of her family members, citing the fact that there were no official records of the incident in the media.
Based on the above reasoning and evidence, the Tribunal was not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. The Tribunal found that the applicants did not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
JUDICIAL REVIEW
On the 12 October 2018, the applicant filed an application for judicial review of the Tribunal’s decision.
On 26 May 2023, the applicant filed an amended application. The amended application advanced four grounds of review as follows:
1.The Tribunal failed to consider or make a finding about whether or not the attack on the applicant’s brother-in-law’s house on 9 November 2013 occurred.
2.In evaluating whether the First Applicant was at risk of harm as a member of the Shia community, the Tribunal failed to consider (or properly consider):
a.the statutory declaration of Syed Arasalan Abidi dated 31 May 2017;
b.a CD filed by the Applicant.
3.The Tribunal failed to consider (or properly consider) relevant country information.
4.The Tribunal failed to:
a.consider or make a finding in relation to the Applicant’s claim that sectarian attacks are not reported; and
b.consider relevant country information relevant to that claim.
HEARING
The application for judicial review came before me for final hearing on 2 August 2023. Mr Lessing of counsel appeared for the applicants and Mr Barrington of counsel appeared for the Minister.
Prior to the hearing each of the parties filed written outlines of submissions and the Minister filed a comprehensive court book. A supplementary court book was also provided prior to the hearing which included correspondence confirming that an invitation to comment on various matters had been extended to the applicants. Counsel for the parties developed their written submissions orally at the hearing.
Ground one
Applicants
By ground one the applicants contend that the Tribunal failed to consider or failed to properly consider a claim by the first applicant that gunmen had attacked his brother-in-law’s house while a 5 Muharram ritual was being held on 9 November 2013.
This alleged attack occurred after the applicant had filed his initial protection visa application and initial claims. This is a separate and distinct attack to the incident which allegedly occurred at the first applicant’s home on 20 November 2012 and the incident in which his wife’s family were killed by gunmen in their home on 5 March 2013.
It is common ground that November 2013 claim was not a matter which could have been articulated as part of the applicant’s initial claims.
The applicant contends that this was a significant claim which he raised several times during the course of the review before the RRT and AAT. He submits that it was a matter directly relevant to the assessment of the degree of risk of persecution or significant harm that the applicants would face and therefore it was a matter the Tribunal was required to consider in discharging its statutory task.
The applicant submits that the claim was put before the Refugee Review Tribunal[1] and was also mentioned in supporting evidence[2]. The applicant also says that the claim was referred to in a letter from the applicants’ lawyer in Pakistan[3] and in submissions made by the applicant’s representative[4] in response to an “invitation to comment” letter issued by the Tribunal[5]. The claim was referred to in the RRT decision[6] but it was rejected.
[1] Court Book (CB) 425
[2] CB 417
[3] CB 387
[4] CB 578
[5] CB 570
[6] CB 425 at [28]
The applicant seeks to impugn the decision of the Tribunal because the 9 November 2013 incident is not mentioned anywhere in the course of its reasons. The applicant submits that the Court should infer that the matter was not considered at all or erroneously was not considered to be material by the Tribunal. It is submitted that the Tribunal’s failure to turn its mind to the incident reveals a failure to consider all claims made by the applicants including their essential components and integers.
In particular, the applicant submits that the November 2013 attack at his brother-in-law’s home should be taken to corroborate his central claim that members of his family were being threatened. The applicant submits that the incident was significant and typical of the violent attacks which had occurred on 20 November 2012 (at the applicant’s home) and 5 March 2013 (at the wife’s parent’s home). All matters involved armed attacks. The 9 November 2013 attack was also reminiscent of the November 2012 attack as it was carried out by militants and occurred on the occasion of the 5 Muharram religious event.
The applicant submits that the Tribunal must have been alive to the claim as it issued an invitation to comment inviting the applicant to clarify apparent inconsistencies in the evidence. It has been conceded by the Minister that the Tribunal[7] confused itself about different events and that the perceived inconsistencies did not in fact exist. Nonetheless, the applicant submits that the invitation to comment indicates that the Tribunal was aware of the alleged November 2013 attack and was sufficiently interested in it to seek clarification.
[7] CB 570
The applicant submits that the Tribunal’s statutory task required it to consider all claims made by the applicants and the essential components or integers of those claims[8]. That includes an obligation on the Tribunal to consider claims which clearly emerge from the materials[9]. The Tribunal’s consideration of claims demands that it engage in an active intellectual process with the relevant material or representations[10].
[8] Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) at [42] per Alsop J (Spender J agreeing)
[9] AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]
[10] Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [43]-[47]
The Tribunal’s reasons do not mention the alleged November 2013 incident. The applicant submits that the Tribunal’s silence gives rise to the obvious inference that incident was not taken into account by the Tribunal in its consideration of the applicant’s claims.
In particular, having regard to the nature and seriousness of the November 2013 attack, the applicant contends that the Tribunal’s reasons cannot be sensibly read to reveal any consideration of the issue. The applicant submits that if the claim was considered by the Tribunal, it was of such importance that it ought to have been expressly referred to and subject to a finding[11]. The Tribunal’s silence is said to disclose jurisdictional error.
[11] SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421 (SZMTA) at [45]-[46]
As to materiality the applicant submits that proper consideration of the claim could have altered the Tribunal’s assessment of the risk to the applicants even if other aspects of the applicant’s claims were rejected. A consideration or finding in relation to the November 2013 incident could have resulted in a different outcome on the review[12].
[12] MZAPC v Minister for Immigration and Border Protection [2021] 95 ALJR 441 at [2], [34] and [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ); SZMTA at [45]-[46]
Minister
The Minister submits that this ground should be rejected for two reasons.
First, the Minister submits that when one considers the way in which the applicant prosecuted his claims over the course of the review, it will be seen that there was no substantial or clearly articulated claim pressed in relation to the November 2013 incident.
Secondly, the Minister submits that, in any event, the Court should not infer that the 9 November 2013 incident was overlooked by the Tribunal. Rather, the better inference is that the Tribunal did not accept that the alleged incident occurred.
The Minister accepts that there is no clear delineation between claims and evidence[13] but submits that what determines the issue is the importance of the evidence. Viewed objectively and in context, the 9 November 2013 incident was not identified and pressed as an important issue by the applicant and it did not stand as a substantial, clearly articulated claim to fear harm. Rather, the incident was advanced incidentally as part of the general body of evidence in support of the applicant’s claim to fear harm as a result of his Shia religion and his particular profile as a reciter of religious poetry. The Minister submits that in the context of the extensive material and submissions provided by the applicants, it was simply not substantial or consequential.
[13] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [111]-[112]
The Minister submits that it is important to contextualise the so-called “claim” and how it was advanced as part of the applicant’s case for protection. The Minister contended that:
(a)there is no mention of the November 2013 incident in the detailed application and supporting documents provided to the RRT on 14 July 2014;
(b)there is no mention of the incident in subsequent documents sent to the RRT later in July 2014;
(c)the first mention of the November 2013 incident occurred on 26 January 2015 after the first RRT hearing. Even then, the incident only arose in response to a post-hearing invitation for information[14];
(d)the RRT rejected the applicant’s claims for protection and in the course of doing so gave little weight to a police report allegedly filed by the applicant’s brother-in-law regarding the attack in November 2013, noting that the report was not an official document and was merely a letter addressed to the district police;
(e)the applicants filed further submissions after the matter was remitted back to the RRT by Judge Jones in September 2016;
(f)detailed submissions filed by the applicant’s representatives in April 2017 made no mention of the November 2013 incident and raised no criticism of the Tribunal’s weighting of it[15];
(g)in further submissions filed by the applicant’s representatives in June 2017 there was again no reference to the November 2013 incident[16];
(h)after the new Tribunal member was appointed, the applicant again filed additional submissions on 19 July 2017 in which there was no reference to the incident[17];
(i)the Tribunal conducted a hearing on 4 April 2018; and
(j)in post hearing submissions filed by the applicant on 26 April 2018, there was no mention of the incident[18].
[14] CB 384; CB 387; CB 417
[15] CB 443
[16] CB 485
[17] CB 511
[18] CB 546
On 11 July 2018 the Tribunal sent a letter to the applicants inviting them to comment on various matters pertaining to their applications for review. In that letter[19], the Tribunal sought information to resolve what it perceived were inconsistencies about a claimed attack but it appears, and the Minister concedes, that the Tribunal conflated two separate incidents, namely the attack at the first applicant’s home in November 2012 and the alleged attack at the brother-in-law’s home in November 2013.
[19] CB 570
In a response prepared by the applicant’s representatives (CB 578), the applicant explained that the Tribunal was in error in that there was no inconsistency in the evidence because there were two separate events (CB 578). In the correspondence the applicant’s representatives explained that the 2013 incident had been mentioned in the Tribunal hearing in April.
The Minister submits that the absence of any reference to the November 2013 incident in the Tribunal’s reasons is entirely explicable when one has regard to the way in which the applicant put his claims over time. The Minister submits that while it is open to infer that the Tribunal had been made aware of or was alive to the 2013 incident it was never pressed as a separate and distinct claim. This most recent incident did not assume any prominence in the applicant’s overall claims for protection.
In the alternative, the Minister submits that there is a sound basis to infer that the Tribunal did consider the incident but rejected it. The Tribunal found the applicant and his wife to be lacking in credibility for having contrived what was clearly the central element of their claim, namely the 20 November 2012 incident. The Tribunal found that the applicants had “manufactured the central claims including supporting documents such as other’s statements and post-mortem reports of the deaths of family members”. By reason of the strong adverse credibility findings, the Minister submits that the Tribunal should be taken to have considered and rejected the occurrence of the 9 November 2013 incident (among the other incidents rejected by the Tribunal).
Consideration
In order to discharge its statutory task, the Tribunal is required to direct itself to each of the claims advanced by the applicants on the basis of the material or evidence before it[20]. The Tribunal is not required to consider a case that is not expressly made or an un-articulated claim that does not arise clearly on the materials[21].
[20] Htun at [42]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2 ) [2004] FCAFC 263 (NABE (No 2)) at [58]
[21] NABE (No 2) at [61]
The Tribunal’s obligation to consider claims and evidence requires it to “read, identify, understand and evaluate” the material[22]. The Tribunal is only required to consider such claims which are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)which “clearly emerged” from or are “squarely raised” by the materials before the Tribunal.
[22] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021) at [24]-[26]
It is well accepted that there is no clear distinction in each case between claims and evidence. Any distinction between claims and evidence provides a tool of analysis but it is not the discrimen itself[23]. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function.
[23] SZRKT at [111]-[112] per Robinson J
Whether the Tribunal is obliged to consider particular evidence will depend upon the cogency of that material and the place of that material in the assessment of the applicants’ claims. The Tribunal’s consideration of such evidence need only reflect the length, clarity and degree of relevance of the material put before it[24].
[24] Plaintiff M1/2021 at [25]
A finding that a claim “clearly emerges” from or is “squarely raised” by the materials before the Tribunal is not to be made lightly. The fact that a claim might be said to arise from evidence before the Tribunal is not enough[25].The inference may be made more readily when a claimant is not legally represented, but here the applicant was legally represented at all stages of the visa application.
[25] NABE (No 2) at [68]
Taking into account the context in which the applicants’ claims were advanced before the delegate, the RRT and the Tribunal, I do not accept the applicant’s submission that the 9 November 2013 incident was a “significant claim” which was raised several times during the course of the review. It was not a claim supported by clearly articulated argument, nor was it based on or supported by established facts[26]. Indeed, having regard to the adverse credibility findings against the first and second applicants and the Tribunal’s acute wariness about fake or fabricated documents which led to the rejection of their “central claims”, there is little to support the evidentiary value of the 9 November 2013 incident.
[26] SZUTM v Minister for Immigration and Border Protection [2016] FCA 45 per Markovic J (at [37]-[38])
Moreover, the manner in which the alleged attack on the brother-in-law’s home was prosecuted by the first applicant as part of his overall claim for protection does not invite a finding that it was substantial by any measure. I agree with the Minister’s submission that the evidence of the alleged November 2013 incident was introduced opaquely and that the applicant’s reference to the incident was not important, cogent or clearly articulated.
It can be accepted that the Tribunal did not expressly refer to the 9 November 2013 incident in its reasons. The applicant submits that invites an inference that it was not properly considered and that the Tribunal failed to fulfil its statutory task. However, the applicant accepts that the strength of that inference may depend on the significance of the matter to the review[27].
[27] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS), 447, [49]; 448 [52]
The Minister submitted that no such inference can be drawn in the current case. Rather, the Minister contends that the proper inference to be drawn is that evidence of the 9 November 2013 incident was considered but was rejected for the same reasons that the Tribunal rejected the applicants’ central claims.
Where a matter is not referred to in the Tribunal’s reasons, there are two obvious hypotheses. One is that the omission of the matter from the Tribunal’s reasons indicates that the Tribunal did not consider the matter at all. The other is that the Tribunal did consider the matter but did not consider it material. It is important to recognise that there is a distinction between these possibilities[28] and that the absence of a reference to material in the Tribunal’s reasons does not of itself give rise to one inference or the other.
[28] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [31]; MZYTS at [51]
The Tribunal’s reasons should identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. The Tribunal is not required to record generally “what it did” in conducting its review, nor is it required to describe every step taken in reviewing the delegate’s decision.
Although each claim and its integers must be properly considered in the review process, an active intellectual process or engagement with the material does not require the Tribunal to forensically disassemble and analyse every item of evidence into a minutiae of historical events and incidents with a view to assessing whether some combination of them might accrete to an increased risk of harm.
If a clearly articulated claim or an essential integer thereof does not find voice in the Tribunal’s reasons when one would expect it to be referred to, even if rejected, the court is more likely to draw the inference that it was not considered. However, where, as I have found, the item of evidence does not have that status, it is more likely to be the case that the Tribunal did not consider it material.
It is uncontroversial that on judicial review the applicant assumes the burden of persuading the Court to draw the inference of a failure to deal with a claim or consider a matter the Tribunal was obliged to consider, or make the finding of jurisdictional error, for which he or she contends[29]. The applicants have not, in my opinion, discharged that burden.
[29] SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]; SZGUR 241 CLR 594 at [67]
Ground One should be dismissed.
Ground two
Applicant
By ground two the first applicant contends that the Tribunal failed to consider two items of evidence, namely:
(a)an Australian statutory declaration of Syed Arsalan Abidi (Mr Abidi); and
(b)a CD recording of the first applicant reciting Nohas.
The applicant submits this failure led the Tribunal into error, for if the statutory declaration and CD had been properly considered, the Tribunal would have reached different conclusions regarding the first applicant’s claim for protection.
The first applicant submits the statutory declaration of Mr Abidi was an important document which contained evidence relating to the applicant’s claims. In the statutory declaration, Mr Abidi deposed that he had heard about the attacks upon the applicant and his wife’s family when he attended a meeting of a religious organisation in Pakistan. Mr Abidi also deposed that the first applicant is a part of a well-known Shia family in Sialkot and is a famous Shia reciter.
The Tribunal concluded at [67] that documents produced in evidence were highly susceptible to fraud and that the applicants’ claims and certain supporting documents had been manufactured by the applicants. However, the first applicant submits that the statutory declaration could not have fallen into that class of documents and should have been accepted as a credible document because it was produced in Australia and was signed before the applicant’s Australian lawyer. The applicant asserts that by failing to consider the statutory declaration, the Tribunal fundamentally misunderstood the nature of the document and therefore, engaged in irrational reasoning.
Furthermore, the applicants say that given their claims about the prominence of the family and the first applicant’s profile as a reciter, it should be inferred that the Tribunal failed to consider the statutory declaration insofar as it related to those claims.
Regarding the CD, the first applicant highlights that the CD sleeve identified the first applicant’s father as a former president of the Sada e Matam e Hussain and Mukhtar Force. The applicant contends this evidence was also significant in establishing the applicant’s family’s prominence in the Shia community and his notoriety for Noha recitation. Therefore, the first applicant submits that as the Tribunal did not consider this relevant piece of evidence, it fell into error.
Minister
The Minister submits that the Tribunal expressly identified the contents of Mr Abidi’s statutory declaration at [45] of its reasons. For that reason, it is submitted that there is no proper basis for inferring that the Tribunal did not consider the document.
The Minister argues that the Tribunal’s discussion regarding “document fraud” was directed at Pakistan documents, not at Australian statutory declarations. Accordingly, the Tribunal should not be seen to have rejected the statutory declaration as falling into that class of documents. However, the Tribunal also rejected the applicant’s supporting documents, such as “other people’s statements”, after coming to the conclusion that they were “manufactured”. The Minister submits that this amounts to a rejection of the statutory declaration insofar as it is corroborative of the applicant’s claims.
As for the CD, the Minister highlights that the CD was provided to the Tribunal three years after it was produced, without explanation and without translation to support a broad assertion that the applicants’ family was prominent or high profile in the Shia community. The Minister submits that it was open to the Tribunal to consider that the CD was not relevant to the claims advanced by the applicants and that any reference to the applicant’s father on the CD sleeve presented an entirely different claim that was not clearly articulated or clearly emerged from the material. Due to the relative insignificance of this piece of evidence, the Minister submits the Tribunal was not led into error by failing to consider the CD sleeve.
Consideration
The relationship between the conclusion or outcome reached by the Tribunal and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. The Court’s task is one of characterisation: the Tribunal’s decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in the sense of lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious or lacking in commonsense, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of power[30].
[30] See Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11]-[13]
The Tribunal did read and consider the statutory declaration. I agree with the Minister’s submission that there is no proper basis for inferring that the document was overlooked.
Sensibly read, the Tribunal did not reject the statutory declaration as a fraudulent document of the type referred to in the DFAT country information. That would have been irrational. Rather, the statutory declaration was rejected by the Tribunal as a statement which had been “manufactured” in the sense that it had been procured or sought out by the applicants to support their claims. Characterising the statutory declaration as falling within a class of documents which had been “manufactured” in that sense was not the product of irrational reasoning.
As for the CD, I do not accept the applicant’s submission that the Tribunal was required to regard it as “clearly relevant” to their claims. The applicants contend that mention of the applicant’s father on the CD sleeve supported a claim that his father and family were prominent in the Shia community. Yet the CD sleeve provided, without translation or explanation, little more than a suggestion that the father was a former officeholder of some kind of organisation.
As I have mentioned more than once in these reasons, the claims to be assessed by the Tribunal are those which have been expressly advanced and articulated by the applicants and those which clearly emerge from the material. I agree with the Minister’s submission that the claims made by the applicant must be considered in light of the basis upon which the application was made, “not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process”[31].
[31] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, at [1] (Gleeson CJ)
In the present case, the CD sleeve was not cogent evidence such as to require the Tribunal’s engagement. The evidence did not give rise to a claim which clearly emerged from the material.
It is trite that the Tribunal’s reasons are to be read fairly and as a whole, without an eye keenly attuned to finding error. The Tribunal’s adverse credibility findings, its rejection of evidence having regard to the prevalence of fraudulent documentation in Pakistan and its conclusion that other documents and materials had been “manufactured” to support the applicants claims, cannot be excluded from the Tribunal’s reasoning process in relation to items of evidence, such as the CD sleeve. In my view, in the context of those broad adverse findings, the Tribunal was not required to consider the CD as cogent or probative.
For the reasons set out in the foregoing paragraphs, Ground Two must be dismissed.
GROUND THREE
Applicant
The applicant claimed that he was at risk of serious or significant harm due to being a member of the Shia minority in Pakistan and because he would travel to other parts of Pakistan for the purpose of engaging in religious activities. To evidence the degree of risk, the applicant provided a substantial amount of country information regarding the threat of sectarian violence across Pakistan.
By ground three, the first applicant contends the Tribunal failed to properly consider the country information he provided, including extracts in the 2017 DFAT Report at [3.51] and [3.69] - [3.74]. The applicant submits that the Tribunal’s failure to engage with that information meant that it did not meaningfully consider the case at hand.
More specifically, the applicant submits the Tribunal disregarded the extracts he provided and rather relied on less relevant sections in the 2017 DFAT Report. The applicant contends that by disregarding the information and extracts he provided, the Tribunal was led into error by concluding that sectarian violence faced by Shia minorities in Pakistan is low.
The applicant submits that the DFAT information relating to risk of sectarian violence in Pakistan was misconstrued by the Tribunal. The applicant contends that the 2017 DFAT report actually conveyed a more nuanced assessment which required the Tribunal to consider risk by reference to the applicant’s geographic location. For example, at 3.51 the DFAT report stated:
“Shi’a are dispersed throughout Punjab province, including in the provincial capital Lahore. Sectarian tensions and violence tend to be more prevalent in southern Punjab, as well as parts of Gujranwala, Sialkot and Rawalpindi provinces in northern Punjab province.”
The applicant contends that in order to properly consider his claims, the Tribunal was required to consider the submissions, evidence and material that was most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground for the applicant if he were returned to Pakistan. The applicant said the Tribunal had evidence before it that he would need to live in Sialkot due to his mental health condition. On the basis that the applicant would likely return to Sialkot, and not to another unfamiliar city, it is submitted that the Tribunal was required to consider the risk to him in that specific geographic area, but that it failed to do so.
At [87] the Tribunal also concluded that the applicant would not be at increased risk if he chose to travel to other parts of Pakistan to perform religious activities because the information obtained from DFAT was “countrywide”. The applicant submits that this conclusion reveals reliance upon generalised statements about the low risk of sectarian violence to Shia rather than a more nuanced assessment of the applicant’s circumstances including his geographic location.
The applicant asserts that the Tribunal showed no engagement with the evidence that the applicant would be returned to Sialkot and therefore, led the Tribunal to formulate inaccurate conclusions. It is submitted that the Tribunal simply failed to turn its mind to the higher risk in Sialkot relative to the rest of Punjab. The applicant submits that by relying upon generalised statements, rather than engaging with the more extensive and probative country information provided by the applicant, the Tribunal did not meaningfully grapple with the issue at hand and therefore failed to discharge its statutory task. Counsel submitted that the Tribunal “[…] took a (qualified) statement of the general risk of sectarian violence to Shia and left it at that”[32].
[32] Applicant’s Outline of Submissions at [54]
Furthermore, the applicant contends that the use of generalised statements is illogical or unreasonable as it failed to consider the applicant’s specific living circumstances.
Minister
Foremost, the Minister submits the Tribunal adequately considered the information provided by the applicant and that it is not open to infer that it failed to do so. To that end, the Minister points to [45] of the Tribunal’s reasons, whereby it acknowledged the claims of violence and sectarian killings in Pakistan by reference to the materials submitted by the applicant:
“In support of his fears the applicant submitted country information in the form of news reports of terrorism in Pakistan, the implication of the military in the killing of Shia as well as submissions by people who describe the situation in Pakistan as not being favourable for the applicant and his family to return due to sectarian killings […]”
The Minister submits that there is no sound basis to infer that the Tribunal ignored the applicants’ evidence and submissions in its substantive reasoning. Rather, and unsurprisingly, the Tribunal focused its consideration on the 2017 DFAT Report. The risk assessment in that report provided the most recent information about violence levels in Pakistan, as compared to the applicant’s country information and extracts.
The Minister accepts that the applicant relied upon specific extracts in the 2017 DFAT Report including paragraph 3.51 which suggests that the sectarian tensions and violence were relatively more prevalent in Siakolt than other areas of Punjab. However, the Minister submits the Tribunal was not required to expressly address these extracts because the Applicant did not submit claims or arguments specifically addressing that item of evidence. The Tribunal was not, for example, squarely confronted with a claim that Sialkot was less safe than other parts of Punjab. The Minister submits that it was not unreasonable for the Tribunal to assess the risk of harm by reference to the risk in the whole of Punjab.
Furthermore, and in any event, footnote 6 to [85] of the Tribunal’s reasons expressly references paragraphs [3.42] and [3.51-53] of the September 2017 DFAT Report. The Minister submits that a proper inference to be drawn from the footnote is that those paragraphs of the report were taken into account in the Tribunal’s assessment that the rate of incidents against Shia is lower in Punjab than other parts of Pakistan.
The Minister submits that even if the Tribunal had considered the applicant’s extracts, the Tribunal would have reached the same conclusion. The Minister points to the Tribunal’s consideration of other evidence, including the absence of terrorist attacks in Sialkot, that there were fewer fatalities from sectarian violence in Punjab than other provinces and the applicant’s own evidence that Punjab is relatively safe compared to other provinces. In the circumstances, the Minister submits that the Tribunal was not required to assess the risk in Sialkot as higher than low.
Finally, the Minister contends that as the applicants did not submit an argument relating to their need to travel to Iran and Iraq for travel purposes, the extracts at [3.69] - [3.74] of the DFAT report did not require consideration.
Consideration
The critical issue to be determined by the Tribunal is the prospect that a person currently in Australia, if returned to his or her country of nationality, will face risks of persecution and the reasons why he or she may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past[33].
[33] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573
The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there.
Relevantly, in Minister for Immigration and Border Protection v NZYTS (2013) 230 FCR 431 (NZYTS) at [38] the Full Court observed that the Tribunal’s statutory task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground if the applicant were to be returned. The Tribunal should evaluate all the pertinent material put forward by the visa applicant in support of the specific claim, including the most recent material to reach a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same. Any evaluation by the Tribunal should also include consciousness about the cycle of political violence and other circumstances particular to both the visa applicant and to his country of nationality.
The question of whether the Tribunal has discharged its statutory task is to be answered primarily through the lens of the Tribunal’s reasons. In NZYTS at [49] the Court said:
“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].”
I reiterate that the reasons of the Tribunal must be read fairly and as a whole and not “with an eye keenly attuned to the perception of error”[34]. As I explained in the discussion dismissing Ground One, whether the Tribunal is obliged to consider particular evidence will depend upon the cogency of that material and the place of that material in the assessment of the applicants’ claims. The Tribunal’s consideration of such evidence need only reflect the length, clarity and degree of relevance of the material put before it. The Tribunal is not required to record generally “what it did” in conducting its review, nor is it required to describe every step taken or refer to every piece of evidence in conducting is review.
[34] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)
In this case, the first applicant claimed that he was at risk of serious or significant harm due to being a high-profile and prominent member of the Shia minority in Pakistan. Incidental to that claim, he also claimed that he would be required to travel to other parts of Pakistan for the purpose of his religious activities. In submissions the applicant asserts that due to his mental health, he would be placed in a position of hardship if forced to live in an unfamiliar city.
From these claims, evidence and submissions the applicant contends that the Tribunal was obliged to consider his particular risk of harm as a returnee to the city of Sialkot, rather than as a returnee of Punjab province. However, this was never a claim made nor is it a claim which clearly arises. In effect the applicant seeks to impugn the Tribunal’s decision for not considering a claim that the Tribunal failed to construct on the applicants’ behalf.
There are a number of reasons why this ground should not succeed. First, as alluded to above, I am not persuaded that the Tribunal was confronted with a clearly articulated claim that the applicant would be at particular risk of harm in Sialkot relative to other areas of Punjab. The fact that a claim might be said to arise from materials is not enough[35].
[35] NABE (No 2) at [68]
Secondly, the applicant bears the onus of establishing that a particular matter was not considered[36]. Fairly read, I am not persuaded that the Tribunal did not read and take into account the evidence and country information that the applicant placed before it. At [45] the Tribunal acknowledges that the applicant submitted country information in support of his fears in the form of news reports and submissions from other people about the situation in Pakistan. At [84] the Tribunal put to the applicant extracts from the 2015 DFAT Thematic report on Shias in Pakistan and from the 2017 DFAT Report on Pakistan. At [85] the Tribunal footnoted references to other passages in the 2017 DFAT report which had been relied upon by the applicant in submissions. The Tribunal put to the applicant that the rate of incidents against Shia in Punjab was lower than other parts of Pakistan.
[36] See BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ)
A decision-maker can, quite properly, consider a matter by thinking about the matter (including the appropriate weight to attribute to such a matter) without making any findings[37]. Where it is apparent that a decision-maker has read a document, the inference that he or she has overlooked or not properly considered a particular part is difficult to draw[38].
[37] See Guclukol v Minister for Home Affairs [2020] FCAFC 148 (Guclukol) at [41]-[53] and [55] (Katzmann, O’Callaghan and Derrington JJ)
[38] See SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 (Heerey, Branson and Emmett JJ) at [27]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [73] (Gummow J, with whom Heydon and Crennan JJ agreed at [91] and [92])
Thirdly, it was not unreasonable or irrational for the Tribunal to conclude that the applicant was at low risk of sectarian violence as a Shia in Punjab.
While factual findings and associated reasoning in administrative decisions are subject to review for jurisdictional error on the grounds of irrationality, true irrationality must be shown[39]. To demonstrate jurisdictional error on the basis that the decision maker engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds, it is not sufficient to show that the question of fact was one in respect of which reasonable minds might differ[40].
[39] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ
[40] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
It is to be recalled that the Tribunal rejected the applicant’s claim to be a high-profile or a prominent Shia professional, finding that he was perhaps “well-known in limited circles”. While there was evidence that the level of risk for Shia can vary depending on geographic location, the Tribunal at [85]-[87] differentiated the increased risk for high profile or prominent Shia from the lower level of risk faced by Shia generally. When applying the proper test of the “reasonably foreseeable future”, the Tribunal then found that the applicant’s risk should be based upon him being Shia rather than a high-profile Shia. That was rational soundly-based reasoning.
It was also open and rational for the Tribunal to conclude that the risk to the applicant, a non-high-profile Shia, was objectively low notwithstanding that sectarian tensions and violence tended to be more prevalent in certain areas in Punjab, such as Sialkot. The fact that certain areas in a low risk environment may present, in relative terms, a higher risk does not demand a conclusion that those areas are themselves high risk. The assessment is a relative one.
Objectively, on all the evidence before the Tribunal, it was open to the Tribunal to find that Punjab province is relatively safer than other parts of Pakistan and that the risk to the applicant, by reason of his Shia faith, was low. The Tribunal did not unreasonably or illogically assess the risk of harm claimed by the applicant. The rational explanation for the Tribunal not expressly referring to paragraph 3.51 of the 2017 DFAT Report is that it did not consider that passage to be material to its reasoning.
Ground Three does not reveal jurisdictional error and will be dismissed.
Ground four
By this ground, the Applicant submits the Tribunal erred by failing to consider, or make a finding about:
(1)the first applicant’s evidence and submissions that sectarian attacks are not reported; and
(2)country information relevant to the argument that sectarian attacks are not reported.
Applicant
The Tribunal found, for reasons discussed earlier, that the applicant’s family did not experience sectarian violence. The Tribunal did not accept that the November 2012 or the March 2013 attacks had occurred. There is no doubt that the absence of media reports about these events informed the Tribunals decision-making, including its findings on credit.
The applicant contends that the Tribunal’s critical adverse finding was erroneous because, among other things, the Tribunal improperly rejected or failed to properly consider evidence which explained why the claimed attacks had not featured in media reports or reports from monitoring agencies.
The Applicant contended that not all attacks are reported and during the Tribunal review sought to establish that the Sialkot Press Club and its members had been restricted from reporting sectarian attacks. The applicant submits that correspondence from the Press Club was credible and should not have been rejected. The Applicant also contends that the Tribunal wrongfully rejected or disregarded other important information which demonstrated that sectarian attacks are not reported. For example, statements in the South Asian Terrorism Portal observed that media access is heavily restricted in disturbed areas of Pakistan, that Pakistan is a highly dangerous country for journalists and that actual terrorism fatalities can be much higher as there is only a fitful release of information by government agencies.
The second limb of the applicants’ attack is that the Tribunal failed to consider relevant DFAT country assessment reports which the Tribunal was required to consider under Ministerial Direction No. 56 and s 499 of the Migration Act 1958 (Cth). The Applicant contends that the Tribunal had access to the 2017 DFAT Report and the 2015 DFAT Report on Shias, and it can be inferred it also had access to the 2015 DAFT Report on Pakistan[41]. The Applicant submits all three documents, together with the 2016 DFAT Report on Pakistan, contain relevant country information which if considered, would have led the Tribunal to conclude sectarian attacks are often not reported.
[41] Following final submissions in this proceeding, the court granted leave for a subpoena to be issued to the Tribunal to identify which country information was before the Tribunal at the time of its hearing. After inspection of documents produced by the Tribunal in response to the subpoena, a joint communication was sent to the Court which stated, inter alia, “The parties agree that the Tribunal had available to it the 2015 DFAT report on Pakistan referred to at [60] of the applicants’ submissions. That is, the Tribunal maintains a database of DFAT country reports which the Tribunal member was able to access. That database included the 2015 DFAT report on Pakistan.”
The applicant submits that the relevant country information provided independent, corroborative evidence of his claim that not all attacks were reported. For example, the 2017 DFAT report noted at 3.120 that “[…] DFAT understands that journalists regularly undertake self-censorship when dealing with sensitive issues, particularly issues involving the military and national security, or when reporting on militant groups”. The 2015 Report on Pakistan noted that attacks on journalists had resulted in a level of self-censorship and curtailment of reporting which was critical of religious or militant groups. The applicant also submits that this country information provided indirect but corroborative evidence of his claim that the orders of the Sialkot Press Club were genuine.
The applicant submits that the Tribunal failed to discharge its statutory task and failed to have regard to mandatory considerations. It is submitted that the Tribunal relied solely on the question of the authenticity of the Press Club letters to make adverse findings which went to the applicant’s credibility and the truthfulness of his claims about extremist violence directed at members of his family. The applicant submits that if the Tribunal had properly considered evidence and country information about the non-publication of reports of such violence, the Tribunal might have reached a different outcome on those claims.
Minister
The Minister’s answer to Ground Four is that the Tribunal was not required to consider any of these pieces of evidence because the applicant made no substantial, clearly articulated claim that sectarian attacks are not reported or that journalists undertake self-censorship when dealing with sensitive issues. The Minister submits that the applicant could have, but did not, claim that journalists did not report the incidents of violence because they feared dealing with sensitive issues involving the military and national security or militant groups.
Rather, the Minister highlights that the applicant produced a submission based on the singular assertion that the Chamber of Commerce had issued an edict to the Sialkot Press Club directing it not to report the relevant violent incidents. The Minister submits that this specific claim was addressed and rejected by the Tribunal.
Moreover, the Minister submits that the applicants’ submissions regarding Ministerial Direction No. 56 and s 499 of the Migration Act 1958 (Cth) are misplaced. Direction No. 56 requires the Tribunal to take into account current DFAT reports, where relevant. The Direction does not require the Tribunal to consider every line in any such report, nor does it expand the Tribunal’s duty to consider substantial, clearly articulated claims[42].
[42] See, for example, Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45]
Consideration
Consideration of this ground cannot take place in a vacuum. The Tribunal’s statutory duty is framed by the claims which are clearly articulated or which necessarily arise from evidence. Those claims frame the “active intellectual exercise” which the Tribunal is expected to undertake. The obligation to “consider” a matter is referrable to an obligation to engage in an active intellectual process directed to that matter.
The proper approach is not to survey all the documents that were available to the Tribunal to find threads of corroboration for a claim that was not actually advanced by the visa applicant.
It is to be recalled that the applicant advanced claims which included allegations of two serious acts of extremist violence perpetrated against members of his and his wife’s family. According to the applicant’s claims, people had been killed in each event. The Tribunal noted at [55] that various major websites regularly published terrorist-related casualties and casualties of sectarian violence, including incidents in the city of Sialkot and covering the period of the claimed attacks against the applicant’s family.
The applicant was met with concerns on the part of the Tribunal that there was no mention of the events affecting his family on major websites which track terrorist attacks in Pakistan. The applicant was invited pursuant to section 424A to respond to these concerns.
At [56] the applicant explained the non-publication by claiming that instructions had been given by the Chamber of Commerce to the Sialkot Press Club not to publish. He added that the central Shia organisation in Sialkot had also stopped reports being published because they thought it would only fuel further sectarian conflict.
It is clear from a fair reading of the Tribunal’s reasons from [55]-[61] that the applicant prosecuted his claim for protection in the manner contended for by the Minister. That is, the applicants’ explanation for the absence of press reporting or agency recording of the extremist incidents involving his family was laid squarely at the feet of the Sialkot Press Club and its directive to members not to report those incidents. The applicants did not cast their claim more widely. The explanation was framed narrowly and the applicants sought to support it with evidence from the Press Club and its officers.
Unless there are reasons to think otherwise, the Tribunal was entitled to assume the claims expressly articulated by the applicant are those on which the applicant relies[43]. That is particularly so, as here, where the applicant is represented.
[43] ELA18 v Minister for Home Affairs [2019] FCA 1482 at [32]; SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]-[81]
In my view, Ground Four fails because it amounts to an attempt by the applicant to seize upon fragments of evidence to support a claim that was never advanced. A fair reading of the Tribunal’s reasons reveal exactly how the applicants constructed and supported their explanation for the nonreporting of the alleged attacks. The Tribunal addressed those claims in as targeted a fashion as they were advanced. The Tribunal was not required to undertake an analysis of all the country information before it to assess whether it supported an argument that was not advanced.
Ground Four must also be dismissed.
DISPOSITION
For the reasons set out in the foregoing discussion, I have found that the applicants have not established that the Tribunal decision is affected by jurisdictional error.
Accordingly, the application must be dismissed and I will hear the parties on the question of costs.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 24 July 2024
0
28
1