MZABO v Minister for Immigration

[2015] FCCA 695

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 695

Catchwords:  
MIGRATION – Review of decision by Refugee Review Tribunal – protection visa application – judicial review – no matters of principle – application dismissed.

Legislation:  
Migration Act 1958

DZADQ v Minister for Immigration and Border Protection [2014] FCA 754
Minister for Immigration and Border Protection vMZYTS [2013] FCAFC 114; (2013) 136 ALD 547
Minister for Immigration and Border Protection vSZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41
MZZQH v Minister for Immigration [2014] FCCA 241

Applicant: MZABO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 396 of 2014

Judgment of: Judge Riethmuller

Hearing date: 28 January 2015

Date of Last Submission: 28 January 2015

Delivered at: Melbourne

Delivered on: 30 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Costello

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the First Respondent: Mr Goodwin

Solicitors for the First Respondent: Carina Ford Immigration Lawyers

ORDERS

1. The Application filed 6 March 2014 and the Amended Application filed 9 January 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs, fixed at $5,500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 396 of 2014

MZABO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 5 February 2014.  The Applicant, a citizen of Pakistan, applied for a Protection (Class XA) visa on 7 August 2012.  This was refused by the delegate on 31 October 2012.  The Applicant then sought review by the Tribunal, which was unsuccessful.  On 6 March 2014, the Applicant sought judicial review of the Tribunal’s decision.

2. The Tribunal accepted that the Applicant was Pakistani (see para.10) and that he owns a house and land in Bara Bandai, receiving an income from the leasing of land.  His wife and four children live with her father in a village a few kilometres away from his land.  His uncle lives nearby and owns a large house in Karachi from which he rents rooms for an income.  The Tribunal clearly identified that the Applicant was of Pashtun ethnicity and a Sunni Muslim (see para.14).

3. The Tribunal set out a summary of the Applicant’s claim, stating:

   15.  The applicant claims that he and his wife were threatened by the Taliban between 2007 and 2010 because of his involvement with the ANP and because of her occupation.  He fears he will be killed on return to Pakistan because of his involvement with the ANP.

   16.  In his written statement dated 2 August 2012, the applicant stated that :

   ·He was involved with the ANP from his early days as his family were supporters.  He represented his village and raised village concerns with the ANP hierarchy and helped solve problems;

   ·His wife taught at the local school;

   ·In around 2007, a Taliban leader from his village, Abdullah Abubakar, told him to quit the ANP and to tell his wife to stop teaching.  Abubakar threatened him when he said he would not comply;

   ·After some time, associates Abubakar, Mohammad Naseen and Rasheed, threatened to kill him and his wife and kidnap his children if he did not comply.  He and his wife moved from place to place and his wife stopped teaching; 

   ·In November 2009, he left Pakistan and joined a ship, however, the ship sank in December 2009 and he returned to Karachi and then to Barabandai; 

   ·He and his wife were constantly harassed by the Taliban in the village and had to move house to escape them.  The Taliban threatened him over the phone and told him to leave the area and hand over his land; 

   ·He reported the threats to the Army and to ANP leaders, Waqar Khan and Rahmat Ali Khan, but they could not apprehend the culprits or stop the threats; 

   ·He moved to Karachi because the threats continued.  His family stayed with him in Karachi for 2 months then returned to the village; 

   ·Whilst he was in Karachi, a person from his village, who was also a member of the ANP and helped the Army during their operation against the Taliban, was killed in Karachi; 

   ·After this killing, he moved to different locations in Karachi to avoid being detected by the Taliban then joined another ship.

4. After considerable discussion about events in the Swat Valley, where Bara Bandai is located, and discussions about claimed threats arising from the Applicant’s involvement in the ANP and holding an anti-Taliban view, the Tribunal Member concluded:

   32.  The Tribunal accepts that a Taliban commander may have told the applicant in 2007 to join the Taliban and to leave the ANP.  The Tribunal notes that the applicant was not harmed at that time because he did not leave the ANP or join the Taliban.  The Tribunal does not accept that the applicant will be targeted or harmed now because of his ANP involvement or anti-Taliban views.  The applicant was a low level member of the ANP whose activities were limited to assisting the party in the local area and liaising between the party and the local community.  Whilst the Tribunal accepts that ANP leaders, MPs and high profile members have been targeted and killed in KPK and elsewhere in Pakistan, the country information (put to the applicant) does not indicate that ordinary members have been specifically targeted and the Tribunal does not accept that the applicant will be targeted because of his past involvement or as a current member, particularly since the ANP has lost power in KPK.  The Tribunal does not accept that the applicant will be targeted because his uncle is a senior member of the ANP as his uncle has continued to reside in Swat and Karachi without harm despite his senior membership.  The Tribunal does not accept that the applicant will be targeted because his cousin was a member of the ANP.  The applicant’s cousin did not hold a senior or elected position within the ANP and the evidence before the Tribunal does not indicate that the applicant will be targeted because his relatives are or were members of the ANP.

   33.  Whilst the Tribunal accepts that the Taliban has at times formulated a hit list of high profile leaders and members of the government, it does not accept that the applicant has any profile which would put him on a Taliban hit list and does not accept that he is on a hit list.  The Tribunal places no weight on the letter from Rahmat Ali Khan.  The evidence before the Tribunal does not indicate that the applicant is an “activist” worker for the ANP or that the applicant is on a Taliban hit list.  The reference in the letter to the applicant being on a “hit list” also leads the Tribunal to doubt the authenticity of the letter.

   34.  The Tribunal does not accept that the applicant will be harmed now because he holds anti-Taliban views.  The country information above (put to the applicant) indicates that most militants fled Swat after the Army offensive in 2009 and, that, whist there is still some militant activity in Swat primarily directed at security forces and active opponents, they have lost popular support and have not been able to re-establish their bases in Swat making the chance they will target the applicant now because of his views remote.

   35.  The Tribunal places no weight on the purported letter from the Taliban which the applicant claims was left near his house in November 2011.  The Tribunal does not accept that the applicant was of interest to the Taliban in Swat in 2011 as he had not lived in Swat since 2008 and his low level involvement with the ANP prior to leaving Swat and in Karachi.  The evidence before the Tribunal does not indicate that the applicant was engaged in any other activities, in Swat or Karachi or elsewhere, that would cause the Taliban to seek him in 2011.  Further, the Tribunal notes that the letter does not name the applicant. [emphasis added]

5. In dealing with the situation in Karachi, the Tribunal said:

   41.  When asked if he experienced any threats to problems in Karachi, the applicant stated that there is always danger in Karachi.  He stated that he is afraid because of the general violence but he also fears that he will be personally targeted.  When asked if he has been involved in any political activities in Karachi, the applicant said that he attended and helped with five or six meetings involving Sayed Ahmed Khan (former ANP Singh leader killed by unknown gunmen in Karachi in January 2012 [Ejaz, M, ‘ANP leader killed in Karachi’, AAJ News, 5 January 2012]).  When asked if he experienced any problems at those meetings, the applicant said there was no security and these people are still calling his wife and making threats.

   …

   40.  The Tribunal does not accept that the applicant’s wife has been receiving phone threats.  There is no reason for militants to be threatening her – the applicant has not lived in Swat since 2008, he is not involved in any activities that would cause him to be targeted and she has not worked as a teacher since 2009. [emphasis added]

6. Having identified this issue, the Tribunal went on to consider a large amount of country information, stating:

   49.  Karachi has become a battleground for political violence between political parties including between the ANP and the established Mohajir party, the Muttahida Quami Movement (MQM), which has traditionally controlled much of Karachi [Yusuf, H. 2012, Conflict Dynamics in Karachi, United States Institute of Peace, October, p. 5].  In October 2010, ANP activists are reported to have killed 19 MQM party workers in the less than 24 hours after the ANP announced its intentions to boycott a Karachi by-election [‘Suspected Political Violence Kills 25 in Pakistan’ 2010, MSNBC, source: Associated Press, 17 October].  Over 1,000 deaths were recorded in the first six months of 2011 [‘Karachi: Report says 1,100 killed in first half of 2011’ 2011, BBC News, 5 July].  At least 396 deaths were reported in ethnic, sectarian, and political violence in the first three months of 2012 [Jamal, A. 2012, ‘Karachi’s Deadly Political and Sectarian Warfare Threatens the Stability of Pakistan’s Commercial Capital’, Jamestown Terrorism Monitor, vol. 10, issue 8, 20 April, Jamestown Foundation website, p 5].

   50.  Over 7,000 people have been reportedly killed in Karachi between 2008 and mid-2012 with over 1,800 people killed in 2011 and over 1,000 killed in 2010.  In July and August 2011, 324 and 229 people were killed, respectively, with the main perpetrators being armed wings of the MQM and the ANP criminals (or ‘target killers’) linked to those parties [Yusuf, H. 2012, Conflict Dynamics in Karachi, United States Institute of Peace, October, pp. 4, 6-7, 8, 11].  The term ‘target killing’ as well as terms such as ‘target’ and ‘targeted’ are used by sources to describe specific killings, in which a person or group is killed to achieve a certain political or non-political agenda.  Target killings are mainly carried out by militants aligned with major political parties [Centre for Research & Security Studies 2012, Karachi: The State of Crimes, March, p. 7].

   51.  As well, the large influx of Pashtuns into Karachi has aided the establishment of sectarian and militant groups (including the TTP) in Karachi [Centre for Research & Security Studies 2012, Karachi: The State of Crimes, March, p. 8].

   52.  According to the Pakistan Institute for Peace Studies, terrorist attacks in Karachi increased by 22% from 2011 to 2012.  96% of incidents of ethno-political violence (176 to 183) reported in Pakistan in 2012 took place in Karachi.  At least 16 political parties were reported to be involved in ethno-political violence in Karachi during 2012, aggravating the worsening law and order situation in the commercial centre of Pakistan [Pak Institute for Peace Studies 2013, Pakistan Security Report 2012, January, pp. 8-9 < About 187 attacks were carried out in Karachi in 2012 causing 272 deaths and 352 injuries.  98 reported incidents in Karachi were sectarian in nature, mainly target killings carried out between rival Sunni and Shia militant groups, which killed 167 people and injured 110.  Up to 88 incidents were attacks by banned militant groups, including the TTP, which killed 109 people and injured 235 [Pak Institute for Peace Studies 2013, Pakistan Security Report 2012, January, pp. 19-20 < The Asian Human Rights Commission reported that 1,800 people were killed in 2012 in Karachi in target killings and sectarian violence [Asian Human Rights Commission 2012, The State of Human Rights in Pakistan in 2012, August, p. 3] and the Centre for Research and Security Studies estimated in 2012 that the total number of deaths from terrorism, target killings and sectarian attacks between 2003 and 2011 at 5,539 [Centre for Research & Security Studies 2012, Karachi: The State of Crimes, March, p. 3].

7. The Tribunal’s ultimate conclusions are set out in paras.54 to 57.

   54.  The applicant is from Barabandai in the Swat Valley.  Although he has resided for extended periods in Karachi and elsewhere since 2009, his family remain in Swat, living between Barabandai and Dherai which is a few kilometres away, he still owns a house and land in Barabandai and he spends time with his family in Swat.  In view of these circumstances, the Tribunal finds that the applicant's home region is Barabandai in the Swat Valley.

   55.  The Tribunal accepts that the applicant may have been harassed by militants in Swat in 2007/08 but, for the reasons set out above, finds that neither he nor his wife are targets for militants in Swat now.  The Tribunal notes that the applicant's family has continued to reside primarily in Swat without experiencing any harm.  The applicant owns property and land in Barabandai which is leased to farmers and from which he derives an income.  The applicant has been able to return to Barabandai and Dherai to visit his family and his land without suffering any harm.  The Tribunal does not accept that he has travelled in secret because the Tribunal does not accept that he has received any threats since 2007/08.  As set out above, the security situation in Swat is much improved since then.  The Army is still in control of the security and administration of Swat and, although there has been some re-emergence of militant activity in Swat, local elders and officials have stated that the Taliban has not been able to re-establish its bases in Swat and no longer has the support of the local population.  Taking account of this information, the Tribunal does not accept that the applicant will be harmed now in Swat because he is a supporter of the ANP or because he opposes the Taliban.

   56. The Tribunal has also considered the applicant's circumstances in Karachi.  The Tribunal accepts that Karachi is insecure with high levels of violence, mostly ethno-political in nature between political parties representing different ethnic groups, and that militants are active in Karachi.  The Tribunal also notes that Karachi has an estimated population of 13 million people [Pak Institute for Peace Studies 2013, Pakistan Security Report 2012, January, pp. 19-20 < The applicant has effectively resided in Karachi since 2009 without experiencing any harm.  The Tribunal has found that he is not a target for militants.  The Tribunal accepts that the applicant has attended 5 or 6 ANP meetings in Karachi but he has not experienced any problems or harm at those meetings and the evidence before the Tribunal does not indicate that he is otherwise politically active in Karachi.  Whilst the Tribunal accepts that there is some risk to the applicant arising from the generalised violence in Karachi, in view of the applicant's lack of profile and limited political involvement and the size of the population of Karachi, the Tribunal finds that any risk of harm to the applicant is remote.

   57.  The Tribunal finds that the applicant does not face a real chance of suffering serious harm now or in the reasonably foreseeable future in Pakistan because of his political opinion or membership of a particular social group of his family, separately or cumulatively.  Accordingly, the Tribunal finds that he does not have a well-founded fear of persecution. [emphasis added]

8. The Applicant articulated six grounds of review, however, in submissions, dealt with grounds 1 to 3 together.  I will do likewise in these reasons.

Grounds 1 to 3

1. Grounds 1 to 3 in the amended application were formulated as:

   1.     The Tribunal engaged in jurisdictional error by misconstruing or failing to consider claims or component integers thereof made by the applicant or apparent on the material before it.

   Particulars

   a.There was a claim before the Tribunal that the applicant was of Pashtun ethnicity.  This gave rise to a well-founded fear of persecution on the basis of his ethnicity.  The Tribunal failed to deal with this claim.

   2.The Tribunal failed to consider whether the applicant faced a real chance of suffering serious harm based on his minority ethnic status as a Pashtun in Karachi.  As such, the Tribunal failed to undertake its statutory task of predicting the applicant’s risk of harm in the future on the basis of the material in the present.

   3.The Tribunal ignored or failed to give genuine consideration to country information indicating that the applicant was at risk of suffering serious harm because of his minority ethnic status as a Pashtun in Karachi.

2. The thrust of grounds 1 to 3 is that the Tribunal failed to deal with an integer, in this case said to be the well-founded fear of persecution by the Applicant based upon his Pashtun ethnicity.  In counsel’s submissions, it is conceded that:

   10.  The Applicant did not emphasise an ethnicity based claim, but there was sufficient evidence before the Tribunal that required the Tribunal to deal with this claim.

3. In fact, the Applicant did not articulate an ethnicity-based claim at all, either before the Tribunal or in the material lodged with the Minister.  At no point is it said that the Applicant actually expressed any fear of the Mohajir on the basis of his Pashtun ethnicity.  The Applicant relied upon MZZQH v Minister for Immigration [2014] FCCA 241, arguing that this case was ‘on all fours’ with MZZQH.  In that case, Judge Turner said:

   11.  The Court finds that there was material before the Tribunal indicating that the applicant claims to be of Pashtun ethnicity and of an apparent fear of resulting persecution.  That fear is apparent from the country information and the delegate’s findings.

4. It is not clear from the terms of the judgment in MZZQH precisely what was said to the Tribunal by MZZQH.  Counsel for the Applicant read the paragraph as indicating that no claim was raised by the Applicant with respect to ethnicity but that it was simply apparent from the country information.  It seems a careful reading of para.11 indicates that a claim of fear was at some point raised as it appeared in ‘the delegate’s findings’.  Ultimately, the case provides little assistance in this matter.

5. Counsel also relied upon DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 at [42]-[53], and, in particular, the passage at para.53 where the court said:

   53.  In my view, the Tribunal committed jurisdictional error when reaching the conclusion that the appellant did not have a well-founded fear of persecution on religious grounds. Whether the Tribunal committed jurisdictional error by not “having regard to” the overall body of country information that indicates that Shia Muslims were being persecuted in Pakistan, as all materials considered by the delegate and the Tribunal pointed to the same conclusion, that is by not engaging in an “active intellectual process” with regard to considering that country information, or by misapplying the “real chance” test to that information is unclear. But, in my view, jurisdictional error is established.

1. It is important to read this judgment in context, particularly the passages in paras.57-59 where the court said:

   57.  The first point to note about [141] of the reasons is that it is a rejection of the fact of there being any relevant risk to the appellant by reason of his Shia religion if he returns to Pakistan. What evidence there is to support that is not identified, except perhaps in the statistical approach in [137]. No other country information identified by the Tribunal supports the view that Shia Muslims in Pakistan are not the subject of sectarian violence or violence by the Taliban.

   58.  The second point to note is that the Tribunal does not conclude there that, despite the “sectarian violence”, the appellant has no genuine fear of persecution.

   59.  The third point concerns the expression “as a necessary and foreseeable consequence”. Obviously, those terms are not co-terminous in relation to the real risks. The element of necessity is not one found in the Refugees Convention, as amended by the Refugees Protocol, or in the Act. The High Court in the seminal decision on the nature of a persecution in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 observed that the objective element of the fear which must subjectively exist is that it must be well-founded and not fanciful or far-fetched: at 396 per Dawson J; at 406 per Toohey J; at 413-414 per Gaudron J and at 429 per McHugh J. It is sometimes called the “real chance” test: per Mason CJ at 398. That expression has been used in subsequent High Court decisions: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 599.

2. It appears that the reasons in DZADQ identify many significant errors in the reasoning of the Tribunal beyond what is alleged in these proceedings.  Even if it can be established that this was a matter that was sufficiently apparent on the material to amount to an integer, which I do not accept, the Applicant must still confront the difficulty that the Tribunal Member has carefully considered the circumstances in Karachi in paras.48-53 (see above) and the risk to the Applicant.  After considering these matters, the Applicant was not found to be at real risk of significant harm.

3. It was also argued that the Tribunal had failed to engage with the argument that the Applicant was at risk simply by being a member of the ANP.  However, the Tribunal clearly identifies this question in para.56 and assesses the risk to the Applicant as a mere member of the party compared to a significant person in the party.  This flows from findings earlier in para.32 as quoted above.

4. I am not persuaded that the Tribunal has erred in failing to deal with the claim first raised in these proceedings that the Applicant was at fear simply as a result of being a Pashtun, nor that they failed to properly deal with the nature of his concerns as a member of the ANP.

Ground 4

1. Ground 4 is in the following terms:

   4.The Tribunal ignored or failed to give genuine consideration to country information indicating that the applicant was at risk of suffering serious harm because of his status as an ANP supporter.

2. In this ground, the Applicant challenges the finding of the Tribunal at para.32 that:

   32.  Whilst the Tribunal accepts that ANP leaders, MPs and high profile members have been targeted and killed in KPK and elsewhere in Pakistan, the country information (put to the applicant) does not indicate that ordinary members have been specifically targeted and the Tribunal does not accept that the applicant will be targeted because of his past involvement or as a current member, particularly since the ANP has lost power in KPK.

3. The Applicant argues that there was contrary country information, to which the Tribunal failed to have regard.  The first item was a reference by the delegate, in the delegate’s decision (at Court Book ‘CB’ 78), to information that ‘The high profile assassinations of ANP leaders, workers and their close relatives in 2010 included murder of the only son of ANP leader and KPK Information Minister …’.  However, this reference appears to be capable of supporting the Tribunal’s conclusions with respect to the relevance of the Applicant’s profile in the ANP.

4. The second item relies upon conclusions of the delegate at CB81 to 82 with respect to ethnic and political violence after considering country information.  The delegate said:

   Recent initiatives indicate an effort on the part of politicians to restore peace in Karachi by bridging the divide between the different ethnic groups and showing solidarity with the Pashtuns.  The Express Tribune reported on 22 June 2012 in an article entitled “Supporting the Pakhtun: MQM to hold rally on Sunday”:

   “KARACHI: The Muttahida Qaumi Movement (MQM) will be holding a rally targeted at the Pakhtun community in the city on Sunday.

   According to the Altaf Hussain-led party, the rally is for the “proud, honourable and knowledgeable (bashaoor) people of Khyber Pakhtunkhwa in Karachi” which would prevent those “elements that are sowing the seeds of hatred” and “spilling the blood of innocent people.”

   The announcement was made at a press conference at the party’s secretariat in Karachi, with members of the party’s various organising committees in attendance.  MQM Coordination Committee member Gulfaraz Khan Khattak spoke at the event.

   He said the MQM had held a rally last year for all the ethnic groups in the city based on the theme of national solidarity, which was a success.  Despite attempts by ‘certain forces’ to stoke ethnic strife, he said the MQM is ‘facing these elements like an iron wall.’  He also said that “the impression that the MQM seeks to represent Urdu-speaking people only is false and misleading” since people of all ethnic origins are part of the party.  He said it was necessary to unite people to stop prejudices on the basis of race and language.

   The MQM’s Wasay Jalil said that the party is working towards improving the law and order situation in the city.

   Khattak believes that the Pakhtun community will attend and appealed to them to make the event a “historic success” (CX292956).

5. The delegate, however, was not satisfied that these recent initiatives had quelled ‘the violence’.  The Tribunal considered the nature of the violence and found that it was ‘mostly ethno-political in nature between political parties representing different ethnic groups’ (see para.56).  The country information cited by the delegate does not directly say that there is risk beyond that identified by the Tribunal.  This particular country information does not show that the Tribunal failed to engage with it, or overlooked it, as it is not inconsistent with the Tribunal’s statements.

6. Thirdly, the Applicant argued that the information summarised in para.30 of the Tribunal’s decision identified that there were risks to members generally.  When reading the paragraph as a whole, it is apparent that it was open to the Tribunal to take the view that it did with respect to the focus of violence being against members with a significant profile.  The paragraph sets out:

   The ANP led the provincial government in KPK until 2013 and members have been targeted and killed, including in Swat, due to the party’s anti-Taliban stance [Roggio, B. 2012, ‘Suicide bomber kills 15 at funeral in Peshawar’, Long War Journal, 11 March, Pak Institute For Peace Studies 2011, Pakistan Security Report 2010, PIPS website, January; Tavernise, S. & Shah, P. Z. 2010, ‘Killings Rattle Pakistan’s Swat Valley’, New York Times, 22 April].  In 2010, a local ANP leader stated that the ANP had “lost 481 leaders and senior activists during the last four years or so” in KPK and the FATA [Khan, J. 2010, ‘Pakistani politicians sacrifice lives in war against militants’, Central Asia Online, 26 July].  Some higher profile attacks in KPK include a suicide attack on the ANP President in 2008; the assassination of a member of the Provincial Assembly in 2009 [Masood, S. 2009, ‘Provincial politician is slain in Pakistan’, The New York Times, 1 December; Khan. H. 2009, ‘Suicide bomber kills ANP lawmaker’, Dawn, 1 December; Khan, K. 2009, ‘Suicide Bombing in Swat Kills ANP Legislator/MPA’, Instablogs website, 2 December Khan, K. 2009, ‘Death of a Khan’, Valley Swat website, 5 December several attacks on a senior minister; the killing of the son of the Information Minister [‘Asfandyar’s sister injured in Peshawar attack’ 2010, Daily Times, 10 August ‘The Taliban hit-list’ 2009, Daily Times, 26 January]; and the killing of a former mayor who had organised a village Lashkar against the Taliban in Mingora in 2010 [Tavernise, S. and Shah, P. Z. 2010, ‘Killings Rattle Pakistan’s Swat Valley’, The New York Times, 22 April].  The Pakistan Security Report for 2011 lists the following attacks on ANP leaders in KPK in 2011: the killing of the District President [Pak Institute For Peace Studies 2012, Pakistan Security Report 2011, January  See also: US Department of State 2012, Country Reports on Human Rights Practices for 2011 – Pakistan, 24 May, Section 1.a]; a suicide attack on a senator [Pak Institute For Peace Studies 2012, Pakistan Security Report 2011, January]; and an attack on the residence of the former senior Vice President [Pak Institute For Peace Studies 2012, Pakistan Security Report 2011, January].  In 2012, it was reported that “attacks on members of the secular ANP are on the rise” [Buneri S 2012, ‘Pakistan’s Swat Valley: Taliban Gone But Peace Remains Elusive’, Pulitizer Center on Crisis Reporting].  In February 2012 a bomb attack on an ANP rally in Nowshera reportedly killed seven people and injured 22.  The TTP claimed responsibility and said that “the TTP would continue to target ANP” [‘7 killed, 22 injured in Nowshera blast’ 2012, The Nation, 27 February].  In March 2012, a suicide bomber killed 15 people in an apparent attack on an anti-Taliban ANP politician in Peshawar [Roggio, B. 2012, ‘Suicide bomber kills 15 at funeral in Peshawar’, Long War Journal, 11 March] and a local ANP leader was gunned down in Swat in July 2012 [‘ANP leader shot dead in Tank’ 2012, Dawn, 4 July].  In 2013, during the election period, bomb blasts in Karachi targeted ANP supporters killing 11 people and injuring over 50 [‘Pakistan elections hit by bomb attacks’, The Guardian, 11 May 2013; ‘Third strike in 4 days in Karachi: 11 die in blast at ANP meeting’, Dawn.com, 24 April 2013].

7. When viewing the material as a whole, I am of the view that the Tribunal’s view of the country information, as it summarised in para.32 and put to the Applicant, was open to the Tribunal on the material.  It does not show a failure to consider or engage with the material, rather the Tribunal putting to the Applicant for comment the Tribunal’s preliminary view of the conclusions to be drawn from the country material relevant to this case. 

8. In these circumstances, I accept the submission on behalf of the Minister that this ground effectively seeks a merits review and therefore cannot succeed.

Ground 5

1. Ground 5 is expressed as:

   5.The Tribunal erred by considering that because the applicant was one person within a large population, the chances of his being harmed or killed was remote, instead of considering the evidence in relation to the legal issue of whether the applicant faced a serious risk of harm for a Refugee Convention reason.

2. Counsel argued that the reference in para.56 (quoted above) to the population of Karachi indicates that the Tribunal Member decided this case simply on the basis of statistical probabilities (that the Applicant was one person in 13 million), rather than in accordance with the test that had to be applied under the Act.  In this regard, counsel relied heavily upon the reasoning in DZADQ v Minister for Immigration and Border Protection [2014] FCA 754.

3. This decision here appears to have been reasoned quite differently.  This is but one fact among large lists of facts and circumstances set out in para.56 that the Tribunal Member considered in reaching the decision that they made.  Whilst statistical calculations cannot be used as the test, they will sometimes be one of the factual matters that can be considered.  Put more simply, a chance of 1-in-100 would be a low risk in a game of chance, but a very significant risk in the context of assessing risks of death in surgery.  Thus, the percentage cannot substitute for the test under the Act.  However, the statistic may add to the considerations when applying the test, for example a chance of 1-in-10,000 of death in surgery is routinely accepted by patients in Australia, provided it is not given inappropriate weight.  Importantly, the Tribunal Member did ultimately apply the correct test at para.57 (as quoted above), which was not simply a test of mathematical probabilities nor does it appear that the statistic was given any undue weight.  I do not find any substance in this ground.

Ground 6

1. Ground 6 is framed as:

   6.The Tribunal ignored or failed to give genuine consideration to the claim that the applicant’s friend, [GR], an ANP member who lived less than a kilometre from the applicant was killed in a shopping centre in Karachi in 2010

2. The Applicant relies upon evidence which appears at p.29 of the Court Book in a statement by one [JI] who left Pakistan in 2011.  During the course of his statement recounting his interactions with the Taliban, he says:

   14.  While I was in Karachi, [GR] a person from my village who fled to Karachi was killed by Taliban.

   15.  He was also a member of the Awamy National Party and use to help the Army during their operations against Taliban.

3. Counsel was not able to point to any other reference to [GR] in the materials before the Tribunal.

4. As Counsel for the Minister points out, the profile of GR is different to that of the Applicant, as GR was said to have assisted the army.

5. The Tribunal Member did not refer to this person or their death in their decision.

6. The question of whether or not this piece of evidence is significant enough to require inclusion in the reasons of the Tribunal must be assessed by reference to the Full Court decisions in Minister for Immigration and Border Protection vSZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41 and Minister for Immigration and Border Protection vMZYTS [2013] FCAFC 114; (2013) 136 ALD 547.

7. The information is a very small piece of evidence with practically no detail.  On the very face of the evidence, it indicates that this is a person who had been active, helping the army during their operations against the Taliban.  He is not, therefore, a person whose background is substantially the same as the Applicant’s background.  Given the amount of the information and its modest weight at best (if it has any weight for a decision-maker in a case such as this where the Tribunal has given reasons in the nature that it has given), it does not appear to me to bring it within the ambit of the principles discussed in those authorities, nor does it appear to me to be evidence, the omission of which from the reasons would indicate a judicially reviewable error on the part of the Tribunal.

Ground 7

1. Ground 7 is as follows:

   7.The Tribunal erred by taking into account that the “applicant has effectively resided in Karachi since 2009 without experiencing any harm” when the applicant departed Karachi in 2011 and the Tribunal’s decision was made in February 2014.

2. It is argued that the Tribunal erred in stating that the Applicant had lived in Karachi since 2009, when earlier in the decision it was stated that he had lived in Karachi from December 2009 to December 2011 (see para.13).  Whilst it was initially submitted that there was no evidence as to where he was after that, it is clear from his initial application (CB 18) that he had worked on a ship as a seaman between 2011 and 2012, at about the time that he made application in Australia.  It is also clear from the document at CB 16 that he arrived in Australia in June 2012.

3. Precisely what evidence was given before the Tribunal as to the number of times he was in Karachi from when he commenced working on the ship is unclear as no transcript had been provided.  I am not persuaded that, in these circumstances, it is appropriate to find that the Tribunal Member has erred in the statement made in para.56 upon which issue has been taken.

4. Ultimately, I am of the view that none of the grounds succeed, even on the basis that the Applicant’s case was considered in circumstances where he was residing in Karachi.  However, the Tribunal clearly considered the case on the basis of residence, not only in Karachi but the alternative at Bara Bandai, as set out in para.55 of their reasons (quoted above).  The grounds argued by the Applicant are not applicable to the findings with respect to Bara Bandai.

5. In the circumstances, I find no merit in the grounds of review and must therefore dismiss the application.

6. As costs ordinarily follows the event, I will order costs on scale (as provided for in Sch.1, Pt.3, Div.1, Item 3) subject to any application for a different costs order.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  30 March 2015