MZZWW v Minister for Immigration
[2014] FCCA 2811
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZWW v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2811 |
| Catchwords: MIGRATION – Whether the Tribunal failed to consider a relevant consideration – whether failure gave rise to jurisdictional error – whether the Tribunal erred in making finding of fact – whether the finding was a material finding of fact giving rise to jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.414, 65, 36(2)(a), 36(2)(aa) |
| Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 NABE v Minister for Immigration (No.2) (NABE) (2004) 144 FCR 1 Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 16 MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 497 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 SZTPN v Minister for Immigration and Border Protection [2014] FCA 1255 |
| Applicant: | MZZWW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2142 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 23 September 2014 |
| Date of Last Submission: | 23 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Maddocks |
| Counsel for the Respondents: | Mr Aleksov |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 4 November 2013.
A writ of mandamus issue remitting the matter to the Second Respondent and requiring it to determine according to law the application made to it by the applicant for review of the delegate of the First Respondent’s decision.
The First Respondent pay the applicants’ costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2142 of 2013
| MZZWW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has applied for judicial review of a decision made by the Refugee Review Tribunal (“Tribunal”) on 4 November 2013, affirming a decision of a delegate of the second respondent (“the Minister”) not to grant the applicant a Protection (Class XA) visa (“the visa”).
The applicant is a thirty year old Punjabi man who was born in Karachi, is Muslim and is a citizen of Pakistan. He has three brothers: [X], [Y] and [Z] as well as one sister (CB 20-21, 82). He first arrived in Australia on 18 March 2007 on a student visa, which was extended on 3 May 2007. A further student visa was granted on 26 August 2009. On 5 March 2011, the applicant lodged an application for the visa (CB 1-15). The applicant’s claims for protection arise from the consequences of an acrimonious ending of a business relationship between the applicant’s father and Mr H (“Mr H”).
Applicant’s claims
The identification of the applicant’s claims is undertaken from statements and submissions made by the applicant which do not neatly identify the applicant’s claim to fear persecution or significant harm, the integers of such claims and the evidence on which the applicant relies. This is not surprising and certainly not uncommon in matters such as this. The use of the term “applicant’s claims” really encompasses all of the applicant’s material before the Tribunal but is done for ease of reference and bearing in mind the approach set out by superior Courts in relation to the statutory task required to be engaged in by Tribunals on review in relation to claims for protection.
In his application for a visa (5 March 2011), the applicant made the following claims in relation to Mr H, the business relationship between his father and Mr H, the circumstances in which the business relationship soured and the direct consequences of this for his father, his family and himself (CB9):
· he originally came to Australia to study in order to work in his father’s business, however, after he was nearing the end of his studies his father warned him against returning;
· his father was a member of the Pakistan Muslim League – Nawaz (“the PML –N”);
· his father’s business ([R]) was a contractor for the [P] Ltd (“the [P]”);
· Mr H, who was general manager of the [P], invested in his father’s business as a silent partner. His father provided a cheque to Mr H as security for Mr H’s investment;
· Mr H was a member of the Pakistan People’s Party (“the PPP”), a legal adviser to the PPP and a very influential man in Pakistan;
· at the time the PPP was voted into power, Mr H demanded that the father return his investments in the business or, alternatively, join the PPP. The father refused to do either;
· Mr H responded by seeking to damage the father’s reputation. Using his power in the [P], he caused payments from the [P] to his father to cease. His father attempted unsuccessfully to redeem the cheques he had provided as security;
· Mr H used his influence in the PPP to put pressure on the police to take action against his father by lodging false First Information Reports (“FIR”). The first FIR, dated 2 February 2009, accused the applicant’s father of trying to abscond from Pakistan with Mr H’s money in the amount of 25 million rupiahs. His father’s reputation survived this false allegation. When Mr H realised this, he lodged a second FIR, dated 2 February 2011 accusing the father of causing political unrest (CB 141) As a consequence of the second FIR, his father went into hiding;
· during this time his brother was taken by the police for investigation but released because of his “non-criminal record”;
· the rest of his family had to leave their home because the FIRs affected not only his father but the whole family, including himself;
· he fears that if he returns to Pakistan he will face the false charges instigated by Mr H because the FIR directly or indirectly affects the whole family;
· he returned to Pakistan in 2010 because his mother was sick. To avoid attracting attention he arrived in Pakistan at a different city and then travelled to Karachi by domestic flight. He only saw his father and brothers for a few hours because they were in hiding. He stayed with his mother at their home for some days. However, because unknown people were checking his house, he moved to a relative’s house for the rest of this stay;
· at that time, there were no charges against him, but due to the new false charges against his father and his followers, he fears he could be arrested and tortured in Pakistan, as torture is a common practice. There is no one who can help him and once he is caught, his life will be destroyed.
The applicant provided, with his application, various material (CB 72 - 96), including:
a)a translation from Urdu into English of an Initial Information Reports Regarding Crimes Needing Police Intervention Reported Under Section 154 of CRPC (an FIR) in relation to an incident dated 2 February 2011 (CB 72). The informant is Mr H. The FIR recites that the father “delivers provocative speeches against the PPP on daily basis and incites public against government and spreads rumours”. The actions of the father are described as “strongly against and dangerous for the present government and also against the public safety.” Under the heading, Police Action it is recorded that “contents of the application show that apparently crime has been committed”, that an initial report has been prepared and copies of the FIR have been sent to concerned officers;
b)a copy of a Watch List naming the father who is recorded to have avoided arrest and failed to join the investigation of the case (CB 74);
c)a “History Sheet of Mr H” (CB 75);
d)information relating to the PML-N, [P] and Mr H, country information relating to the Pakistani Police Force, and a record of a complaint by the local Community Welfare Society to the father, dated 3 December 2010, regarding complaints by his neighbours about suspicious and unknown people continuously visiting their homes and questioning them about the father and family members, including, sometimes, government agencies; such as, police (CB 83-96).
The applicant sent a written submission on 12 November 2011, together with various material (CB 98-126), to a delegate of the Minister. In his written submission he stated that if he returned to Pakistan, because of Mr H’s influence through the PPP, he would be arrested and tortured based on wrong and false charges referred to in the “new” FIR which involved his father and all his brothers. Alternatively, Mr H could use his party workers and followers to kidnap him and destroy his life (CB 98). The material included copies of documents in relation to the father’s business and contractual arrangements with the [P], including a line of credit taken out by the [P] for the benefit of the father’s business in the amount of 67.8 million rupees.
The applicant’s migration agent forwarded a written submission to the Tribunal on 10 April 2012 (CB 149 - 154), in which the following claims were made:
a)the cheque provided by his father as security for Mr H’s investment in the business was made out in Mr H’s name and payable only on specified conditions;
b)Mr H demanded his investment back from his father without any prior notice as Mr H wanted to invest his money in the PPP election in 2007;
c)Mr H was suspended as general manager with [P] in 2008. Immediately after this he took up a position in the PPP as legal adviser;
d)Mr H deliberately presented the cheque provided by his father. It was dishonoured. Mr H made the first FIR on 2 June 2008;
e)his father’s good business reputation survived this. When Mr H realised this, he lodged a second FIR alleging his father was causing civic unrest. His father went into hiding because of these serious charges;
f)his father cannot leave Pakistan as he has been added onto Pakistan’s Exit Control list because of the FIR charges;
g)the second FIR also affects his immediate family members. He is directly and indirectly affected so that, even if he shows the Pakistani authorities that he was in Australia, the police can still detain him to induce a suspect (his father) to surrender;
h)he has never claimed that his name was included on the FIR;
i)the PPP controlled the Pakistani Federal Government and is more powerful than the Punjab PML-N provincial government;
j)his father did not tell him the whole story regarding Mr H until after he finished his studies and he spoke to his father about returning to Pakistan;
k)he fears that Mr H can have him forcefully arrested under any false allegations, that police investigation in Pakistan in custody involves brutal torture and death and that, in Pakistan, the police usually take and arrest family members during an investigation and will harass, humiliate and torture them until the suspect surrenders;
l)because the FIRs are valid throughout the country they cannot escape by moving from city to city.
Attached to the written submissions were copies of documents relating to the father’s business and the arrangements relating to the investment by Mr H in the business (CB 155 -165).
The applicant appeared before a hearing of the Tribunal on 13 April 2012. On 13 May 2013, he was advised by the Tribunal that “a further hearing is required in light of the change of Pakistan government (sic)” (CB 173). The applicant forwarded to the Tribunal, on 7 June 2013, further submissions and materials for the second hearing of his application for review (CB 184 -197). He claimed that:
a)although there had been a change in government and the PML-N are in power, because his father had been unable to contribute financially to party funds due to the huge financial losses from dealing with Mr H, his father was unable to secure support or goodwill from the governing PML-N;
b)there is a third FIR which was lodged in 2009 against his father but also includes his two elder brothers. Mr H contacted his father’s business suppliers and convinced them that his father would not be returning their money and that they should lodge an FIR;
c)Mr H still has strong relations with Ministers, MNAs, police and other agencies and can forcefully capture/arrest him under any false allegations like he has already done against his father in the FIRs;
d)police investigations in custody involve brutal torture;
e)the police commonly take and arrest family members and do not release them until the suspect surrenders.
The applicant attached a copy of an FIR dated 28 April 2009 (CB 192- 197). It records that the father and his sons, [X] and [Y], made a business agreement on 29 January 2004 under which the complainant loaned them monies with repayments to be made from the profit of the business. Payments were now in default. The complainant alleges that his father, [X] and [Y] made threats to kill.
The Tribunal records, in its decision, the following evidence and claims made by the applicant during the hearings (CB 232-234):
a)his family lived in the Punjab area near Rawalpindi. His brothers, [X] and [Z] live mostly with his father, his brother [Y] lives in the UK, his sister is married and resides in Islamabad and his mother resides with her cousins in Rawalpindi;
b)his main concern is that if he returns to Pakistan he will be taken in for investigation, in the course of which he may be tortured. In Pakistan they detain relatives to pressure the suspect to surrender, as noted in the US State Department reports;
c)[Y] was detained in 2008 when he attempted to depart the country;
d)[X] and [Y] were involved in their father’s business and also helped him with his political activities which is why [Y] had been targeted and why his father has sent [Y] abroad;
e)there is a warrant out for the arrest of his father and he is concerned that, if his father cannot be found, the authorities will take family members and he is fearful that he will be tortured in an attempt to compel him to reveal his father’s whereabouts.
The applicant’s brother, [Y], gave evidence by telephone link. He said:
a)when he returned to Pakistan in 2008 or 2009 (after the first FIR was lodged against his father), he was stopped at the airport and questioned, but he did not know what was going on. After two to three hours, Mr H himself appeared and threatened him, wanting to know where his father was. He was not actually assaulted at the airport, but he did hold a UK visa and at that time there was only one FIR;
b)he has not been back to Pakistan since then, and there is now a second FIR, which includes a reference to unknown persons, and “he is of the view that this could be used to arrest him, as the justice system there is very bad. He would have returned to Pakistan if he had felt safe doing so as his mother has been very ill, but [Mr H] is still waiting for them, and has even phoned him in the UK.” (CB 234 [36]);
c)he believes “if the applicant returns to Pakistan he could be arrested, because [Mr H] has good relations with the airports, and would use his power to have him arrested if they knew he was coming back. He would then risk being placed in torture cells where the things which might happen to him are unbelievable” (CB 234] [37)
Following the hearing, the applicant sent to the Tribunal a further written submission dated 24 June 2013 (CB 203 -216), in which he claimed:
a)Mr H remains a highly influential person. He has wrecked the applicant’s family financially, socially and politically. His family members were harassed by police and Mr H repeatedly, and have scattered and gone into hiding. One of his elder brothers was left with no option but to leave Pakistan;
b)if he returns to Pakistan Mr H, with the help of corrupt authorities, will hunt him down and use him as bait, putting him through extreme physical and mental torture, to achieve their ends;
c)Mr H will persecute his family until he obtains his million-dollar property used as security for the purpose of the bank loan to the business;
d)Mr H can easily enter his name into police records by falsely accusing him of wrongdoing and can secure arrest warrants at any time and track him down using the applicant’s passport or the Computerised National Identity Card (CNIC).
e)His family home has been sold by the bank. His relocation to any other part of Pakistan will not change his circumstances. He will be easily tracked and identified by the investigating authorities and, once the police know there are FIRs against his family members, they can detain, harass and torture him;
f)Mr H pressured police (through his PPP connections) to arrest his brother, [Z], detain him and interrogate him about his father. However, due to his non-criminal record the police released his father;
g)his other brother, [Y] was stopped by the FIA at the Benazir Bhutto International airport, when he was departing. His brother was detained and interrogated at the airport, Mr H personally came to interrogate him;
h)there was an FIR directly naming his father but the authorities still detained and interrogated [Z] and [Y]. [Y] lives overseas and supports the family because his other brothers cannot engage in work freely because of the FIR charges. Even though [Z] is not named on the FIR, he is still in hiding and not safe;
i)even though he was not involved in the business he fears that if he returns to Pakistan he will be tortured.
Tribunal Decision
The Tribunal set out the applicant’s claims and evidence and observed that the applicant had provided detailed and fairly consistent claims in his written and oral testimony which were supported by extensive documentary evidence (CB 244 [54]).
The Tribunal accepted that Mr H and his apparently close links to the ousted PPP remains an influential figure in Pakistan, and “therefore one who might well have the capacity to exert the sort of influence which the applicant claims has been brought to bear to the detriment of his family” (CB 249 at [61]). The Tribunal stated, however, that it did not accept the applicants claims about the nature and extent of Mr H’s ongoing influence with Pakistani authorities and:
“does not accept or agree with the applicant’s assessment of the length Mr H is prepared to go in order to achieve his objectives and therefore the degree of risk the applicant faces in the event he returns to that country.” (CB 249 at [62])
The Tribunal stated that it was inclined to accept much of the applicant’s account as to what actually happened. In particular, the Tribunal accepted the following (CB 249 [63]):
· Mr H had a commercial relationship with the applicant’s father which soured when the applicant’s father refused to shift his allegiance and support to the PPP;
· [Mr H] unsuccessfully sought to withdraw his investment prematurely so he could bolster his own support for the PPP “with a view to profiting personally from their political success;”
· Mr H subsequently attempted to recover money he considers he is entitled to as a consequence of the breakdown of the commercial relationship, and also harassed the applicant’s father by commencing or inciting others to commence serious legal proceedings against him, including criminal complaints as evidenced by the FIRs, managing through his connections to have the father’s name added to the exit control list;
· one of the applicant’s brothers was detained by Mr H with the help of the police but released because he had no criminal record;
· the applicant’s brother [Y] was detained and questioned at the Islamabad airport when departing the country in 2008, and Mr H himself participated in the questioning, but he too was released unharmed;
· the applicant’s father and brothers [X] and [Z] remain in hiding in Pakistan, seeking to avoid the threat of harm from [Mr H] and his minions and minimise the possibility of arrest in connection with the FIRs filed against the father and the brothers [Y] (who resides in the UK) and [X];
· the applicant’s family home was repossessed after the bank foreclosed on the mortgage;
· the applicant’s mother now lives separately with her relatives.
The Tribunal identified the applicant’s claim to fear persecution, stating that (CB 250 at [64]):
“64. The applicant has indicated that he is fearful of being arrested and mistreated by the Pakistani authorities in connection with the FIRs taken out against his father and two of his brothers either by or at the behest of Mr H, one of which is said to implicate family members including the applicant ……….”
The Tribunal then proceeded to make further findings in relation to the applicant’s claims. These were:
a)the FIR issued on 2 February 2011 naming the applicant’s father did not specifically implicate any of his family members including the applicant. The Tribunal stated, “it is clear to the Tribunal that they do not specifically identify any member of the applicant’s family other than his father, and rather than suggesting or implying that any of the other people implicated in the violence has a familial link to the father, the FIR suggests the opposite when it refers to them as members of the public.” (CB 250 [64]);
b)it acknowledged that police misconduct does occur in Pakistan and there have been serious abuses involving the torture and even death of innocent people and cannot rule out the possibility that such a fate might befall the applicant working to return to Pakistan. However, it noted that the applicant had returned three times to Pakistan since the dispute arose and on each occasion arrived and departed without mishap (CB 250 [67]);
c)the applicant’s brother [Y] was detained and questioned at the airport in connection with the FIR issued against their father, “despite Mr H personally attending at the scene and he was subsequently released and allowed to depart, and it was conceded that he was not physically harmed at all in this process.” The Tribunal noted that this was a discrete incident “to that described in the original statement, in which an unnamed brother was also detained by [Mr H] and the police but the police had to release him because he did not have (sic) criminal record” (CB 250 [67]). The Tribunal noted that whilst these incidences confirmed that Mr H exerted an inappropriate degree of influence with the Pakistani authorities the influence is clearly not unlimited as the police would not have felt constrained to release the brothers;
d)it accepted the fact that, when the applicant returned to Pakistan, he had only limited contact with his father and ended up living with relatives as the family home was being monitored, this may have caused the applicant apprehension. However, the Tribunal found that, “it did not follow that the people monitoring the house had any adverse interest in him personally, as opposed to as father” (CB 251[69]).
The Tribunal then found (at [68]):
“Unlike his father and brothers, the applicant was not involved in the father’s business [R]. He was also outside of Pakistan at the time of the alleged incident described in the FIR issued on 2 February 2011 in which his father is named specifically but other members of the public are also referred to. Both these factors reduce, in the Tribunal’s view, the risk of the applicant himself being implicated in or targeted because of the dispute between Mr H and his father” (CB 251 [68]).
The Tribunal concluded (at [70]):
“Consequently, the Tribunal does not accept that the applicant himself had been implicated by Mr H or others including his father’s former business suppliers (sic) any wrongdoing nor that he is being sought by the Pakistani authorities, whether for the legitimate reasons or otherwise” (CB 251 [70]).”
The Tribunal found that, in these circumstances, there was only a remote possibility that, if the applicant returns to Pakistan in the reasonably foreseeable future, he will be detained and mistreated for the reasons claimed. Consequently, it was not satisfied that the applicant’s fear of serious harm capable of amounting to persecution was well founded (CB 251 [72]).
For the same reasons, the Tribunal said it was not satisfied that there were substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as a necessary consequence of being removed to Pakistan (CB 252 [73]).
Grounds of Judicial Review
By amended application filed 6 July 2014, the applicant specified the grounds for review as:[1]
Ground 1
(1)The Tribunal erred by ignoring a relevant consideration when making the critical finding that the risk of the applicant being implicated in or targeted because of the dispute between the applicant’s father and Mr H was reduced because unlike his fathers (sic) and brothers the applicant was not involved in the father’s business. The relevant consideration ignored by the Tribunal was that the applicant’s brother [Z] was not named in the FIR or involved in their father’s business, but had nonetheless been detained by police in Pakistan.
[1] The applicant stated in his Outline of Submission that he no longer pursued ground 3 specified in the amended application.
Ground 2
(2)The Tribunal made a critical finding that the risk of the applicant being implicated in or targeted because of the dispute between his father and Mr H was reduced because unlike his fathers (sic) and brothers the applicant was not involved in the father’s business, [R]. The Tribunal made that critical finding in the absence of evidence that all three of the applicant’s brothers were involved with [R].
Applicant’s Submissions
Although the applicant specified two separate grounds of review, it is apparent from the applicant’s written and oral submissions that these grounds are treated as interrelated.
In his written submissions the applicant asserts the following:
· the applicant has three brothers, [Z] , [X] and [Y];
· the applicant claimed that his brother, [Z] had been detained
· the applicant claims that in a separate incident, his brother [Y] had been detained at the airport;
· two of the applicant’s brothers, [X] and [Y], had worked in his father’s business whereas the applicant himself and his brother [Z] had not worked in his father’s business .
The applicant submits that the Tribunal made the following finding crucial to its conclusions about the applicant’s protection claims:
“Unlike his father and brothers, the applicant was not involved in the father’s business [R]. He was also outside of Pakistan at the time of the alleged incident described in the FIR issued on 2 February 2011 in which his father is named specifically but other members of the public are also referred to. Both these factors reduce, in the Tribunal’s view, the risk of the applicant himself being implicated in or targeted because of the dispute between Mr H and his father” (CB 251 [68]) (emphasis added by the applicant).
The applicant maintains that this finding was critical to the Tribunal’s ultimate decision affirming the delegate’s decision. This is apparent, it is said, by reference to the remaining words of that paragraph which state that “Both these factors reduce, in the Tribunal’s view, the risk of the applicant himself being implicated in or targeted because of the dispute between Mr H and his father.”
The applicant submits that the use of the word “brothers” in paragraph [68] means all three brothers. The applicant argues that the Tribunal’s reasoning discloses that it dealt with the applicant’s claims in a comparative way: firstly, there is a comparison of the applicant’s risk profile relative to the brothers who were named in the FIR and, secondly, there is a comparison of the applicant with his three brothers whom the Tribunal states are involved in the father’s business.
The applicant submits that the Tribunal ignored his claim that his brother [Z] was detained. The applicant argues, “when considered together with the fact that [Z], like (the applicant), has not worked in the father’s business, this was an important claim”.[2]
[2] Outline of Submissions of the Applicant at [24]
The applicant submits (at [25] to [26]) of his outline of submissions:
“25. The Tribunal’s critical misstep was a finding that all the applicants brothers were involved in his father’s business. This is revealed in the first sentence of [68] (CB251). This finding is based on no evidence. Alternatively, the Tribunal ignored the fact that the applicant’s brother [Z] was detained and like (the applicant), [Z] was not involved in his father’s business.
26. Either way, the Tribunal made a crucial misstep that amounts to jurisdictional error.”
The applicant submits that the Tribunal, having accepted most of the applicants claims, found that the possibility of harm to (the applicant) was remote because:[3]
[3] Ibid at [27]
a. “the applicant had returned to Pakistan three times without mishap;
b. his brother [Y] had been detained at the airport but released without physical harm;
c. an “unnamed brother” had been detained but released because he did not have a criminal record ;
d. Unlike “his father and brothers, the applicant was not involved in his father’s business [R]”;
e. he was outside Pakistan at the time of the alleged incident described in the FIR dated 2 February 2011; and
f. the applicant was able to stay with relatives in Pakistan”.
The applicant submits that these were five crucial reasons for finding the applicant’s fear of harm was remote and two of them (c ), and (d), are flawed because:
a)the applicant had claimed that it was his brother [Z] who had been detained;
b)two brothers worked in the father’s business ([X] and [Y]); and
c)[Z] did not work in the father’s business.
The applicant argues that, as the Tribunal accepted much of what the applicant claimed, the errors were significant or material errors leading to the Tribunal’s ultimate decision.
The applicant submits that he claimed that his brother [Z] was detained and interrogated about his father by the police. This detention and interrogation, the applicant claimed, resulted from pressure by Mr H through his PPP connections. The applicant also claimed that [Z] was released due to his non-criminal record. The applicant concedes that, his first express articulation of this claim, in his application for a protection visa, did not name the brother (CB 9). However, in the written post hearing submission, dated 24 June 2013 made on his behalf by his Migration Agent, the claim was again articulated and the brother identified as [Z] (CB 205). This claim was expressly made together with an additional claim; namely, that his brother [Y] had also been detained and interrogated at the airport including by Mr H himself (CB 207).
The applicant points to a series of findings made by the Tribunal in relation to the applicant’s brothers (at CB 249 [63]). The first finding of fact made by the Tribunal was that:
“One of the applicant’s brothers was detained by Mr H with the help of the police but released because he had no criminal record.”
The next finding of fact (at [63]) was that that the applicant’s brother, [Y] was detained and interrogated at the airport and released unharmed. This was followed by the third finding of fact, this being that the applicant’s father and brothers, [X] and [Z], remain in hiding seeking to minimise the possibility of arrest in connection with the FIRs filed against the father and brothers, [Y] (who resides in the UK) and [X]. The applicant submits that the Tribunal made a finding of fact (at [64]) that the applicant is not named in any of the FIRs.
The applicant submits that the failure to name the brother [Z] as the one who was detained by Mr H with the help of the police, in the context of the further two findings of fact, discloses a lack of consciousness and consideration of the evidence or claim that [Z] was the brother who was detained. The applicant submits this evidence or claim was important because, like the applicant, his brother [Z] had not been named in the FIR and was not involved in the father’s business. Notwithstanding this apparent lower profile, [Z] was detained.
The applicant submits that in dealing with the evidence before it, the Tribunal noted that the applicant appeared to have no connection with his father’s company and was not named in the FIR (CB 240 [50]). The Tribunal also recorded, in considering the evidence, that it had informed the applicant that it understood why his father and possibly his brother might be a target as they had been involved in their father’s business and had helped their father with his political activities thus explaining why [Y] had been targeted and why the father had sent [Y] abroad (CB 23 at [22]). In other words, the applicant argues, in describing the evidence the Tribunal has referred to the involvement of, [Y] and [X] in the father’s business and the lack of involvement by the applicant in the business but did not make any findings in relation to the involvement or lack of involvement of [Z] in the father’s business.
The applicant submits that the Tribunal overlooked or failed to make any findings in relation to the evidence regarding [Z]’s lack of involvement in his father’s business and his failure to be named in any FIR. Moreover, the Tribunal failed to make a specific finding that it was [Z] (rather than an unnamed brother) who was detained and interrogated and subsequently released. In doing so, the applicant argues that the Tribunal has made a jurisdictional error as the findings about [Z] were necessary findings about an important issue from which an inference of error should be drawn.
The applicant submits the Tribunal’s finding at [68] that all three brothers (including [Z]) were involved in the father’s business is critical as there is no independent basis for the decision once this error is removed. The applicant maintains that, it is evident from the last sentence of paragraph [68] in its decision record, the Tribunal placed great weight on the applicant’s lack of connection to his father’s business and this made the Tribunal’s findings about [Z]’s involvement in the business more critical. This error, it is argued, is significant because it is part of a small number of material findings of fact on which the ultimate findings of the Tribunal were made.
The applicant submits that these errors must be seen in the context where the Tribunal has taken a considerable period of time (approximately 2 years) to affirm the delegate’s decision, the applicant did not have available an interpreter at the hearing (notwithstanding the Tribunal incorrectly records that he did [at 5]), and the fact that the applicant’s claim that it was his brother [Z] who was detained and interrogated was made in a written submission to the Tribunal after the hearing.
The applicant submits that the clear conclusion to be drawn is that when the Tribunal finally set about making its decision, because it failed to mention that [Z] was detained and erroneously found that the applicant’s three brothers were involved in the father’s business, it failed to consciously consider the applicant’s claims.
The applicant referred to extracts from Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS) in support of his application for judicial review. He argues that the Tribunal’s reasons show neither consciousness nor consideration of a central aspect of his claim: MZYTS at [3]. He submits that the failure of the Tribunal reasons to disclose an evaluation of the applicants’ “post – hearing submission”, precluded the Tribunal from forming the requisite state of satisfaction in relation to the applicant’s claims: MZYTS at [45]. Consistently with authority the Court on review is entitled to take the reasons of the Tribunal setting out the findings of the fact the Tribunal itself considered material to its decision and as reciting the evidence and other material the Tribunal itself considered relevant to the findings made: MZYTS at [49.]; see also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at p.380. The absence of the reference to the applicant’s claims, together with the centrality of this material to his claimed fear of persecution, enables an inference that the Tribunal failed to take into account matters material to its statutory task: MZYTS at [62].
The applicant submits that where there is corroborating evidence, which is important or central to the applicant’s claim, the Tribunal is bound to consider the evidence: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67.
The applicant argues that there was, in these proceedings, evidence or a claim that the applicant’s brother, [Z] was not involved in the father’s business and was not named in the FIRs. Nevertheless, he was detained and interrogated. This claim or evidence was important and it was overlooked. There was no consciousness or consideration of the claim.
Respondent’s submissions
The Minister submits with respect to Ground 1 (at [37] of its written submission):
“37.1. The Applicant’s position depends upon an invalid grammatical assumption about the interpretation of the opening sentence in paragraph 68 of the Tribunals reasons – “Unlike his father and brothers, the Applicant was not involved in the father’s business…” (the statement) – the invalid assumption is that it was a finding that “his father and all of his brothers” were involved in the Father’s business. The correct interpretation of the statement is that it is a reference to the two brothers who were involved in the Father’s business”.
“37.2. If the Court accepts the Applicant’s assumption, it is submitted that the Applicant incorrectly assumes that, by the statement, the Tribunal adopted a mode of “comparative analysis” that meant the nature and degree of involvement in the Father’s business by [Z] was “critical”. In paragraph 68 of the Tribunals reasons, the Tribunal was analysing the nature, degree and extent of the Applicant’s connection with the Father’s business. It was conducting this analysis because the entire basis of the claimed fear of harm springs from the dispute between the father and [Mr H] in relation to the father’s business. The balance of paragraph 68 of the Tribunals reasons reveals that the Tribunal reveals that the Tribunal was concerned simply to demonstrate that the Applicant did not have any connection with the Father’s business. The statement does no more than note a distinction; it does not purport to commence any comparative analysis by reference to [Z]. Accordingly, any factual findngs about an important issue, from which an inference of error may be drawn. It follows that the Applicant’s argument is revealed as an impermissible attempt at merits review of the Tribunals decision”.
The Minister submits that the applicant’s argument that the statement, “Unlike his father and brothers, the applicant was not involved in the father’s business …” (in [68] of the decision record) includes a finding that all three of the Applicant’s brothers were involved in the fathers business, is not a valid assumption having regard to the Tribunal’s reasons as a whole. The Minister submits that (at [40.1] to [40.2]):
“40.1 The Tribunal was aware that the Applicant has three brothers (Tribunal Reasons [19], CB 232):
40.1.1 [Y], who was involved in the father’s business (CB107) (and now lives in UK).
40.1.2 [X], who was involved in the father’s business (CB 103).
40.1.3 [Z], in respect of whom there is no evidence about whether he was or was not involved in the father’s business.
40.2 The Tribunal was also well aware that only [Y] and [X] has been involved in the father’s business (Tribunal Reasons [22], CB 232).”
The Minister submits the applicant’s argument that the Tribunal was making a finding in relation to all three brothers is a submission that is at odds with the requirement that the Tribunal decision be read fairly, as a whole, having regard to their purpose of informing the reader of the reasons for decision, and not with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)
The Minister submits that if the Court finds that the reference to “the brothers” was indeed a finding in relation to all three brothers, no reviewable error is demonstrated and the Court is being asked to engage in impermissible merits review: Wu Shan Liang . The Minister argues (at [43] to [44]):
“43. The Applicant’s submissions assume that the Tribunal’s analysis needed to: (1) note that both the Applicant and [Z] have not been involved in the father’s business; (2) note that both the Applicant and [Z] had not been named in any FIR; and therefore (3) make a direct comparison between the circumstances of the Applicant and the circumstances of the Applicant and the circumstances of [Z] because this was the only mandatory consideration. The Applicant did not at any stage make a clearly articulated claim, nor did one arise from the materials, that required the Tribunal to compare the circumstances of the Applicant with the circumstances of [Z].”
“44. The probative significance of the Tribunals reference to the involvement in the Father’s business in paragraph 68 of the Tribunal’s reasons is not to draw comparisons with the Applicant’s brothers, but to establish that the Applicant was not involved in the business. This was of probative significance because the Tribunal considered that the risk of suffering the claimed harm was affected by the nature and degree of the applicant’s connection with the dispute concerning the Father’s business. By negativing the existence of the Applicant’s connection with the Father’s business and the dispute in connection with the father’s business, the Tribunal was establishing that the Applicant’s claim in this regard did not have a strong connection to subject matter from which sprang the claimed fear of harm – that Mr [Mr H] is seeking to exact retribution following the dispute concerning the Father’s business”.
The Minister submits that the applicant’s argument that the Tribunal erred when it failed to make a finding that [Z] had been detained despite not having been involved in the father’s business, is misconceived. This is because it fails to have regard to the whole of the findings and reasoning of the Tribunal as disclosed by the decision record. The Minister submits that the description by the Tribunal of an “unknown brother” being detained and released because of an absence of the criminal record (at [67] of its decision record) is not an error going to jurisdiction. The significance of the reference to his brother’s detention was not that it was a particular brother but rather that it was a brother who was detained. This, the Minister argues, formed the basis for the Tribunal’s view that Mr H had some influence. The fact that a brother was released without harm supported the Tribunal’s view that Mr H’s influence was not as the applicant suggested.
Consequently, the Minister submits that a finding that it was [Z] who was detained was not the necessary finding about an important issue the Tribunal was required to address: (See generally, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362) The important issue or necessary finding was that a brother was detained, not his name.
The Minister argues that the failure to name the brother as being [Z] may well have been a mistake but not one that was significant in the terms contemplated in MZYTS.
The Minister submits that ascertaining what was the necessary finding is to be done by reference to the Tribunal’s reasons disclosed in its decision record. This discloses, the Minister argues, that:
· the Tribunal found that Mr H remains an influential figure in Pakistan capable of exerting the sort of influence that the applicant claims (at [61]);
· the Tribunal did not, however, accept the applicant’s assessment of the lengths that Mr H was prepared to go to in order to achieve his objectives with the consequence that the risk the applicant faces is reduced (at [62]);
· against this finding regarding the extent of Mr H’s influence, the Tribunal made findings accepting much of the applicant’s claims (at [63]);
· the Tribunal finds that the second FIR does not specifically identify any member of the applicant’s family other than the father (at [64]);
· the Tribunal acknowledged that there is police misconduct in Pakistan, that there have been serious abuses involving torture and death of innocent people and that this possibility for the applicant cannot be ruled out (at [67]);
· the Tribunal found the applicant has thrice returned to Pakistan since the dispute arose and on each occasion he arrived and departed without mishap (at [67]);
· the Tribunal found that applicant’s brother, [Y], was detained and questioned at the airport in connection with the FIR issued against their father. This was a discrete incident and separate incident from the incident claimed by the applicant, in his original statement, in which an unnamed brother was also detained and released because he did not have a criminal record (at [67]);
· the fact of detention and release tended to confirm, in the Tribunal’s opinion that Mr H still exerts an inappropriate influence but not to the extent maintained by the applicant (at [67]);
With respect to Ground 2 of the grounds for jurisdictional review, the Minister relies on its earlier submissions.
The Minister submits that there was no claim made by the applicant on the basis of some comparative analysis between the circumstances of [Z] and the applicant. The Minister submits that the applicant’s claim to fear persecution derived from his fear that he would suffer persecution or significant harm because of reprisals from Mr H as a consequence of the dispute between Mr H and his father.
For these reasons, the Minister submitted no jurisdictional error arose.
Consideration
The applicant’s grounds for judicial review are, in summary, that the Tribunal failed to consider a relevant consideration or evidence (Ground 1) and that the Tribunal made an erroneous material finding of fact (Ground 2) and that both errors were such that they gave rise to jurisdictional error. Both grounds relate to what is described by the applicant as a “critical finding that the risk of the applicant being implicated in or targeted because of the dispute between the applicants’ father and Mr H was reduced because unlike his father and brothers the applicant was not involved in their father’s business”.
The Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS) observed that descriptions such as “failure to consider evidence” may explain a path of legal analysis leading to jurisdictional error. However:
“the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Act.” (at [32]).
In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”) his Honour, Robertson J disavowed the distinction between claims and evidence and emphasised that the fundamental question is the importance of the material to the exercise of the Tribunal’s function and hence the seriousness of the error (at [111] – [112]):
“[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[112] As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.”
The approach by Robertson J was considered in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”) at [29]:
“The relevance of the distinction between claims and evidence and the authorities relied on by the Minister are considered later in this judgment. It is sufficient to note at this stage that the Minister did not directly challenge the correctness of Robertson J’s recent analysis of the relevant principles in this area in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), which was cited with approval by the Court in MZYTS at [68]-[70]. The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”
In SZSRS the Full Court said (at [49]):
“In SZRKT the Minister submitted that failing to take the academic transcript into account did not amount to a jurisdictional error so long as it did not mean that the Tribunal overlooked the applicant’s claim or claims. In substance he made the same submission in the present case. But in SZRKT Robertson J rejected the submission as reflecting an approach to jurisdictional error that relied on categories or formulas. In particular, his Honour held (at [110]) that whilst the distinction between claims and evidence may be a useful tool of analysis, ultimately what is required is a case-specific analysis focusing on the importance of the ignored material and the seriousness of the error. His Honour said (at [98]) that ‘although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim’.
Further, the Full Court in SZSRS stated at [54]:
“It may be accepted that the authorities referred to by the Minister remain good law. Certainly they have not been overruled. It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111]) as a ‘tool of analysis’. His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.”
The Full Court held in MZYTS that the Tribunal’s task on review under s.414 of the Act is to form, for itself and on the material before it, the requisite state of satisfaction under s.65 of the Act in respect of the criteria for a visa in issue before it (at [32]). The formation of the state of satisfaction for the purposes of ss.36(2)(a) and 36(2)(aa) of the Act involves two steps:
…first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
In Htun, Allsop J (as his Honour then was) held that the requirement of the Tribunal to review a decision of delegate of the Minister to grant or not to grant a protection visa under s.414 of the Act “requires the Tribunal to consider all the claims of the applicant. To make a decision without having first considered all the claims is to fail to complete the jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act…” at [42]. In Htun Merkel J observed (at [7]) that the Tribunal must address, cumulatively, all of the essential elements of the claim or claims raised by the material or evidence.
The Tribunal’s obligations to consider the applicants’ claims extend beyond those clearly articulated by the applicant for a protection visa: NABE v Minister for Immigration (No.2) (NABE) (2004) 144 FCR 1 at [58]; Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 16 at [70] .
A natural consequence of the inquisitorial process is that the Tribunal must consider the case that arises from the evidence before it, regardless of how that is specifically put by the applicant: MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs (MZWDG) (2006) FCA 497. In MZWDG his Honour, Justice Young held at [39] that:
“39. On the authorities, the Tribunal is obliged to consider at least three types of claims; first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly those that emerge from the Tribunal’s findings or conclusions”.
The Tribunal’s consideration of material or evidence must be “real or active”: MZYTS at [39]. As Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at 595):
“…the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.”
In all cases, other than cases alleging actual bias or bad faith, whether or not the Tribunal failed in its statutory task to review a decision by failing to consider a claim or and asserted fact that raised a material question of fact, must be assessed by reference to the Tribunal’s reasons; See Minister for Immigration and Citizenship v SZLSP 187 FCR 362 at 380 at the per Kenny J. As the Full Court stated in MZYTS (at [49]):
“49.The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].”
The task for a Court on review is not to assess the quality of the Tribunal’s reasons, but rather to consider what the Tribunal’s reasons, as they are, reveal about the Tribunal’s performance of its statutory task (see MZYTS at [57]).
On the other hand, it must be borne in mind that, in the judicial review of administrative decisions, minute and over-zealous scrutiny of the Tribunal’s decision record is at odds with relevant authorities. In Wu Shan Liang at [30] – [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:
“[30] When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court continued:
‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
[31] These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’
As the Minister correctly observes, both grounds of review are premised on the basis that the reference to “brothers” in paragraph 68 of the decision record, is a reference to the applicant’s three brothers, [Y], [X] and [Z].
I reject the Minister’s submission that the reference to “brothers” should be read as a reference only to [Y] and [X]. I do not accept that the Tribunals’ recitation of the evidence regarding [Y] and [X]’s involvement in the business is a sound basis for concluding that the reference to “brothers” is only to those two brothers.
In context, in the absence of any prior finding by the Tribunal regarding the involvement or otherwise of [X], [Y] and [Z] in the father’s business, I am satisfied that, read fairly, the reference to “brothers” is a reference to the applicant’s three brothers, [X], [Y] and [Z].
The Minister’s next point of attack is that the applicant incorrectly assumes that the Tribunal undertook a comparative analysis by reason of its finding, “Unlike his father and brothers, the applicant was not involved in the father’s business [R]” (at [68]). The Minister argues this is misconceived. In fact, the Tribunal was analysing the nature and extent of the applicant’s connection with his father’s business.
I am satisfied that, read fairly, the Tribunal was undertaking a comparative analysis of the applicant’s connection with his father’s business vis-à-vis his brother’s. This is, in my view, clear from the use by the Tribunal of the opening word, “unlike”. I agree with the applicant’s submission that the commencement of the first sentence at paragraph 68 of the Tribunal’s decision record with the word “unlike” must be seen as a deliberate inclusion by the Tribunal and given its ordinary meaning. The Australian concise Oxford dictionary (4th edition) defines “unlike” as:
1.not like; different from (is unlike both his parents).
2.Uncharacteristic of (such behaviour is unlike him).
3.Dissimilar, different.
In its ordinary meaning the word “unlike” connotes a comparison with or distinction from. I am satisfied the Tribunal was engaging in a comparison between the involvement of the applicant, who the Tribunal found was not involved in the father’s business and his three brothers ([Y], [X] and [Z]) whom the Tribunal found were involved in the father’s business.
Ground One
The applicant submits that the relevant consideration ignored by the Tribunal was that the applicant’s brother [Z] was not named in the FIR or involved in their father’s business, but nonetheless had been detained by police in Pakistan. The applicant argues that the failure of the Tribunal to consider this material is apparent from; firstly, the failure of the Tribunal to refer to [Z] by his name in its findings of fact (at [63] of its decision record) combined with its erroneous finding (at [68] of its decision record) which was to the effect that the applicant’s three brothers were involved in his father’s business.
The applicant emphasises that the Tribunal fell into error by failing to consciously consider the applicant’s “post – hearing submission” and, in this sense, fell squarely within the circumstances of MZYTS.
It is apparent from the Tribunal’s decision record that the applicant’s “post – hearing submission” dated 24 June 2013 was made arising out of issues or concerns raised by the Tribunal during the hearing held on 11 June 2013. The Tribunal raised with the applicant his connection or lack of connection with his father’s business. The Tribunal records the discussion with the applicant in relation to this point as follows (CB 240 at [50]):
“The Tribunal noted that the applicant appeared to have no connection with his father’s company, was not named in the FIR naming his father and also referring to other unidentified people said to have stormed a PPP office and caused criminal damage on February 2011 and was not even present in Pakistan on (sic) when the incident is said to have occurred. The applicant conceded that he had not (sic) connection to the company but asserted nevertheless that when disputes of this nature arise Pakistan family members can be captured, and he is at risk of being tortured ….”
I observe here that the evidence given by the applicant was that he did not have a connection with his father’s business. Moreover, the matters canvassed by the Tribunal at this point in the hearing form the substance of the findings made by the Tribunal at paragraph [68] of its decision record.
The applicant’s “post –hearing submission” is clearly responsive to the matters raised by the Tribunal during the course of the hearing. Amongst other things, the applicant says in that submission:
“As mentioned previously in my first statement that Mr H has pressurised police (through his PPP leader) to arrest my brother ([Z]), detain and interrogate (sic) about my father but due to non-criminal record police had to release my brother at that stage. Secondly my other ([Y]) was stopped by (FIA) at the time of departure where he was detained and interrogate (sic) at Benazir Bhutto International Airport, eventually Mr H came personally and asked my brother about my father’s whereabouts.
In above both incidents, there was only one FIR (against father) but police and Federal investigation authorities still detained and interrogate (sic) my brothers…. (CB 205)
My only one brother ([Y]) (sic) is supporting my family and my other both brothers are not in position (sic) to engage in work freely to fulfil all daily expenses because of FIRs charges even though one of my brother (sic) ([Z]) has no name in FIR but still he is hiding and not safe….” (CB 206-207)
The applicant’s “post hearing submission” made claims which he believed were material to his claim that he would, on return to Pakistan, be implicated in or targeted because of the dispute between Mr H and his father. Read fairly and in sequence the applicant makes the following claims:
a)his brother [Z] was detained and interrogated about his father but due to his non-criminal record, he was released;
b)his brother [Y] was detained and interrogated (including by [Mr H]) about his father at the airport and was released;
c)both these incidents occurred at a time when the only extant FIR named his father;
d)even though [Z] is not named on an FIR he is hiding and not safe.
In oral submissions the applicant described his claim to fear harm as being used as bait for Mr [Mr H] to get to his father. He referred with approval to the Tribunal’s identification of his fear of persecution if he returns to Pakistan because he will be identified as a family member of a person who is the subject of two outstanding First Information Reports and arrested and mistreated as a consequence (CB 250 [66]).
An underlying presumption in the applicant’s first ground of jurisdictional error is that there was evidence or material before the Tribunal, which it failed to consider, that [Z] was not involved in the father’s business. This, however was not a claim the applicant made in his “post–hearing submission”. I have carefully examined the claims and evidence before the Tribunal and I am satisfied that there was no claim or evidence before the Tribunal regarding [Z]’s connection to his father’s business.
Consequently, I find that there was no claim made by the applicant that [Z] was not connected to his father’s business. Nor was there any evidence before the Tribunal regarding [Z]’s connection to his father’s business. To the extent the applicant relies on the existence of such a claim and/or material before the Tribunal, this aspect of his ground of judicial review must fail.
Nevertheless, it follows from my findings that the Tribunal made a finding of fact that [Z] (as well as [Y] and [X]) was involved in the business and that this finding of fact was made in the absence of evidence to support it. The Tribunal clearly erred in making this finding.
I am satisfied, particularly having regard to the post-hearing submssion, that the applicant claimed that his brother’s [Y] and [Z] were detained and interrogated about his father’s whereabouts and that [Z] was detained even though he was not named on an FIR.
I turn to consider whether this claim or consideration was overlooked.
It is appropriate to extract from the Tribunal’s following findings of fact (at paragraph [63]):
· “one of the applicant’s brothers was detained by Mr H with the help of the police but released because he had no criminal record;
· the applicant’s brother [Y] was detained and questioned at the Islamabad airport when departing the country in 2008, and Mr H himself participated in the questioning, but he too was released unharmed;
· the applicant’s father and brothers [X] and [Z] remain in hiding in Pakistan, seeking to avoid the threat of harm from [Mr H] and his minions and minimise the possibility of arrest in connection with the FIRs filed against the father and the brothers [Y] (who resides in the UK) and [X];”
I am satisfied that these finding of facts discloses that the Tribunal did consider and was conscious of the applicant’s claims that [Z] was in hiding to avoid the possibility of arrest in connection with FIRs which did not name him.
I am not satisfied, however, that the Tribunal gave conscious consideration to the applicant’s claim, made in the post hearing submission, that it was his brother [Z] who was detained. It is unfortunate that the Tribunal failed twice, in its reasoning, to identify that it was [Z] (as well as [Y]) who was detained even though he was not named in an FIR. It failed to take this simple step in its findings of fact at [63] and later on, when it referred, in its reasoning, and “an unnamed brother (who) was also detained by Mr H and the police but the police had to release and because he did not have a criminal record.” (CB 251 at [67]). The effect of this failure is that the unnamed brother referred to at both points in the Tribunal’s reasoning could have been either [X] or [Z]. As noted, the Tribunal found that [X] was named in an FIR.
I am satisfied that the Tribunal disclosed in its reasoning a lack of consciousness of the applicant’s claim made in support of his fear of persecution, that [Z], who was not named in the FIR, was detained and interrogated.
I now turn to consider whether the errant finding that the applicant’s brothers were involved in the business and/or that the failure by the Tribunal to consciously consider the applicant’s claim that [Z] was detained although he was not named on an FIR, gave rise to jurisdictional error.
The comparison made by the Tribunal was that, unlike his brothers, the applicant was not involved in the father’s business, was a finding of fact which was material to the Tribunal’s finding that the risk to the applicant of being identified and targeted by the authorities on his return to Pakistan because of his connection with his father (family) was reduced. This much is evident from the concluding sentence of that paragraph:
“Both these factors reduce, in the Tribunal’s view, the risk of the applicant himself being implicated in or targeted because of the dispute between Mr H and his father.” (at [68]).
I am satisfied that the Tribunal made a findng of fact that [Y], [X] and [Z] were involved in the father’s business. I have further found that the Tribunal’s finding that [Z] was involved in the business was one for which there was no evidence. It was a critical finding to the course of the Tribunal’s decision making. This is because its consequent finding was that because, by comparison, the applicant was not involved in the father’s business, the risk of the applicant being targeted was reduced. This finding and process of reasoning was critical to the Tribunal’s conclusion that the Applicant’s fear of serious harm was not well founded (at [72]) and that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant returning to Pakistan he would suffer significant harm (at [73]).
The error was significant and critical to the Tribunal’s ultimate decision of review.
Consequently, I am satisfied that the Tribunal fell into jurisdictional error. Ground 2 of the applicant’s grounds of judicial review is made out.
The applicant’s claims that [Z] was detained even though he was not named in the FIR, was central to his claim to fear persecution. His claim to fear persecution was based on his relationship with his father and not his connection to his father’s business. The fact of [Z]’s detention and interrogation (despite not being named on an FIR) was central to the applicant’s claim, based as it was, on the applicant’s connection with his father not the business. The Tribunal, in my opinion for the reasons set out above, failed to give conscious consideration to a matter central to the applicant’s claim to fear persecution.
I am satisfied that the failure of the Tribunal to give conscious consideration to the applicant’s claim was significant and gave rise to jurisdictional error. Ground one of the applicant’s grounds of judicial review to this extent is also made out.
Conclusion
For the reasons set out above, I shall order that a writ of certiorari issue quashing the decision of the Tribunal dated 4 November 2013 and order the Tribunal determine the application made by the applicant according to law. I shall also order that first respondent pay the applicant’s costs.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 19 December 2014
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
14
2