S1325 of 2003 v Minister for Immigration - [2006] FMCA 615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1325 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 615

MIGRATION – RRT decision – Pakistani with fears arising from 1992 crackdown on MQM party – political claims disbelieved – changed country situation – no failure to address any separate claim – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.418(3), 424A(1), 474, 477(1A), 483A, Pt.8
Migration Legislation Amendment Act (No.1) 1998 (Cth), s.2(2), Sch.3 Pt.2 cl.20
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8(2)(b)

SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

Applicant:

APPLICANT S1325 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG716 of 2004

Judgment of:

Smith FM

Hearing date:

19 April 2006

Delivered at:

Sydney

Delivered on:

19 April 2006

REPRESENTATION

Counsel for the Applicant:

Mr C Jayawardena

Solicitors for the Applicant:

Chandra Jayawardena Solicitor

Counsel for the First Respondent:

Mr V A Hartstein

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
Order the applicant to file and serve within 7 days a further amended application containing the grounds relied upon at today’s hearing.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG716 of 2004

APPLICANT S1325 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 15 March 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 October 1997 and sent to the applicant on 27 October 1997. The Tribunal affirmed a decision of a delegate made on 20 December 1995, which refused to grant a protection visa to the applicant in response to his application on 20 April 1994 seeking refugee entry permits under the legislation in a previous form.
The dates referred to above show the antiquity of the present matter, and the delays which have unfortunately occurred at every stage, both within the executive branch of government and in the judicial branch. The delays in the Courts are, on the evidence before me, mostly attributable to litigation conducted by the applicant prior to the present proceeding. The chronology of this is unclear on the evidence before me, but it appears that the applicant was a represented party in proceedings in the High Court known as the “Muin and Lie” litigation. There may also have been delays by the applicant before and after his involvement in that litigation, but these do not need to be explored, since the Minister makes no submission based on discretion to refuse relief. The further delay in this Court after the commencement of the present proceeding is the result of the tidal wave of such applications which has hit this Court since 2004.
Although the decision of the Tribunal was given before this Court was created and gained its jurisdiction under s.483A, it has been held that it has jurisdiction to review such antecedent decisions (see Branson J in SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773). Moreover, as her Honour confirmed in SZDLR, the transitional provisions accompanying the introduction of the privative clause provisions of the present Part 8 of the Migration Act had the effect, in relation to a Tribunal decision which was the subject of other judicial review proceedings pending in 2001, that s.474 and s.477(1A) do not apply (see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8(2)(b)). The consequence is that the unfettered common law grounds for relief by way of writs of certiorari and mandamus are available to the applicant pursuant to the Court’s invested jurisdiction under s.39B of the Judiciary Act 1903 (Cth). However, in relation to a writ of mandamus, this still requires the Court to be satisfied that there has been an actual or constructive failure by the Tribunal to exercise its statutory jurisdiction.
The present applicant arrived in Australia in January 1994, and made his claim for refugee entry permits on 20 April 1994. This involved the lodgement of at least two forms. Details of his claims to satisfy the definition of refugee under the Refugees Convention in relation to a return to his country of nationality, Pakistan, were briefly indicated in one of them.
Question 67 of the form asked: “What do you fear would happen to you/your family if returned to your country of nationality or habitual residence?”. To this, the applicant responded: “I am scared for my life is not safe in my country. I am unable to return to my country because of my political involvement with MQM”. The reference to “MQM” is to a political party or movement in Pakistan seeking to promote and support the interests of the “Mohajirs”. These people are millions of Urdu speaking refugees residing in Pakistan following the 1947 partition, who in 1992 made up 22 per cent of the population of Sindh province and were concentrated in urban areas, including Karachi.
Question 70 of the form asked whether the applicant or a member of his family had ever suffered because of race, nationality or ethnic/linguistic background. The applicant answered: “Yes”, and said:
What happened?
I and my family members of times threaten and beaten by security force and opposition groups.
When?
In June 1992.
Where?
Karachi (Nazimabad.)
Who did it?
MQM (H) and force operation.
Question 73 asked whether the applicant or a member of his family unit had ever suffered as a result of membership of or association with the political party, group, movement or association. The applicant answered: “Yes”.
What happened?
They arrested my younger brother and took him police station.
When?
In July 1992.
Where?
Karachi.
Who did it?
Police.
In response to question 74, the applicant claimed to have had a membership or association with “MQM”, and to have joined in 1986. He claimed that that group had been banned or made illegal “in June 1992. Military Operation”. He claimed to have held a rank or official position of “unit in charge of unit 188”, and to have made speeches at public meetings and written or signed literature or publications.
The applicant also presented to the Department of Immigration (“the Department”) a collection of press clippings from 1992 and 1995. However, in relation to his personal claims he submitted only two supporting documents, one being a letter dated 25 November 1986 purporting to be on MQM letterhead stating: “this is to inform you that you have been appointed as a WORKER of MQM in Unit No. 188 with immediate effect”, and a business card showing the applicant’s name.
The applicant attended an interview by a Department officer held on 13 June 1995. Only a summary of that interview is in the documents in the Court Book prepared from the Department files. The applicant indicated in questioning that after joining the MQM he was assigned to work in cleaning and office jobs, and he also sat in on interviews with people who “come to us with their problems and we used to pass on the problems to our higher authorities”. He was questioned about his claim to have been “made in charge of the gulbahar unit” in 1998, and about his involvement in elections. In relation to this he said that only once was he “assigned to work during the elections, but I couldn’t go because I was sick”. This was in 1988. He denied being involved in local elections in 1987.
The delegate recorded questioning the applicant concerning his claims that he and his family members were beaten:
you claim to have been threatened and beaten by security forces, and opposition groups in Karachi in June 1992.
when nawaz sharif was in power in 1992. At that time nawaz sharif explained to the MQM that they would start an operation cleanup in sindh province, against robbers and bandits. altaf hussain agreed … but the operation was against the mqm. altaf hussain advised those in charge in mqm to go underground and leave the country.
how did 1992 clean up effect you.
because they knew I was in charge of that area. when the operation started altaf hussain had already left in jan 92, but he informed everyone that the operation was going to start.
But how did this operation cleanup effect you.
in 1992 before the operation started … the police and paramilitary started raiding the houses. they were arresting the boys and torturing. I never slept in my own house … I used to sleep in my aunty and uncles houses. once when I was not at home, my younger brother was arrested and taken to the police station. he too was tortured. even the common citizen was not safe, they were raiding their houses as well.
when did you leave pakistan.
january 1993.
what were the circumstances around your departure, I notice you went to taiwan.
they involved me in so many false cases against me of fighting etc. that I had to leave.
you were never arrested, how do you come to the conclusion you have been implicated in false cases.
police used to come regularly in our area and they rounded up so many people, because they knew about me, that’s when my father advised me never … even in our area … because the police were visiting our area. that’s why I used to sleep in other places.
what happened to your brother when he was arrested.
he was locked up with no warrant, he was bashed and then repeatedly asked where I was, he told them he didn’t know, they tortured him.
explain.
they cut this part, and extinguished cigarettes thru it so his bone was visible. they didn’t charge him.
when was he released.
after three months.
A delegate refused the application in a decision dated 20 December 1995. It is unnecessary for me to analyse his reasoning. In the course of it, the delegate referred to the applicant’s written claim that he and his family members were threatened and beaten, and said:
5.The Applicant and his Family Members Threatened and Beaten by Security Forces and Opposition Groups in Karachi in June 1992/The Applicant’s Younger Brother Arrested in July 1992.
It was established at interview that the applicant himself was not arrested or beaten by security forces, although he claims that his brother was arrested and tortured (B:1, ff.131‑132). He claims that the authorities asked his brother about his (the applicant’s) whereabouts. The applicant claims that he hid in various relatives’ house during operation clean‑up until his departure in January 1993.
Notwithstanding the applicant’s brother’s arrest, I do not accept that he (the applicant) was of any interest to the authorities. There is no evidence to indicate the applicant was involved in any activity which would have brought him to the attention of the authorities since 1988, regardless of whether he was a member of the MQM as claimed, or not. Similarly, I do not accept that the claimed arrest of the applicant’s brother can be linked to the applicant.
The delegate’s final conclusion on the applicant’s overall claims was:
Available evidence indicates that the level of general ethnic and civil violence in Karachi is high at present, and that current MQM members and activists may risk arrest and/or harm. However I find that the applicant does not fit into this category of persons. The applicant may well be at risk of suffering harm within the context of the general violence occurring in Karachi, however this in itself is insufficient to bring him within the ambit of the Convention.
The applicant lodged an application for review by the Tribunal on 11 January 1996, and at some point presented a handwritten statement to the Tribunal. The body of this said:
I appreciate the research work of my respected officer but I have to disagree with his statement that I need not fear persecution if I return to Karachi Pakistan. Every one who lives in Karachi who supports MQM or has supported MQM fear for their safety. They are not sure if they can go to work or return home from work. It’s not easy to understand the democracy drama in our country. It’s just a feudal system.
The opposition and government fight in the assembly just for their interest. Especially their justice system is weak if you are not a strong supporter with your political and social contact. They pick you or your family member up for questioning at any time of the day. This is my main fear of persecution. I made an error with my age asked how old I was at the time. I joined MQM. I was 23 not 26 which I mention in my first application.
This is an explanation on why I fear persecution on 17th of October 1986. When MQM leader Mr Altaf Hussain was going to address the MQM supporters especially Urdu speakers of Hyderabad, Karachi and the public at Fort Hyderabad. I was instructed by the MQM unit to gather all the supporters and friends to join the Hyderabad speech. Immediately carried out these instructions I was responsible with travel arrangements, putting up banners, gathering more supporters to attend the speech at Hyderabad. As we were on the way to Hyderabad we had to pass on area called Soharab Goth. This area is manifested with drug pushers, dealers, mostly Pathan people who are deal against the Urdu speakers and MQM supporters. During this journey from Soharab Goth we were attacked. Our bus was set on fire. People were shot at overall 20 people were killed.
My best friend and political partner was killed instantly. I was in shocked at the death of my friend. Who was a strong political supporter. The police then started to arrest the Urdu speaker (MQM members) and they started to harass the people. That when the people including my self started a strike. We burnt buses, local trains etc.
Finally the police issued a warrant of arrest for me. Also I would like to explain my self about the time I was sick in 1987. That was a local election and the only way I could support them was financially and morally and also in good faith, as I was stricken down with typhoid because I was so sick. I was not allowed any where. I also had confidence. That we are going to win the election in 1987. There are people living in Karachi not because they want to but because they have to for the sake of their family’s safety. They have fear but they are willing to sacrifice for their family.
During the 1988 election I had to step back as I was threatened by anonymous group other Islamic party that my family would be harmed. So for the sake of my family. I had to go in to hiding. As I said they can get you any time and I do not want to live in fear any more.
This is fear persecution. If I have to return to Pakistan. I came to Australia to find a better and peace full life. I understand the legal system is very fair. I pleading with you compassionate and humanitarian feelings to please consider my case once again.
The Tribunal did not come to hold its hearing until 22 October 1997, nearly two years after the lodging of the review application, and more than three years after the visa application. A transcript of the hearing is not in evidence. The Tribunal made reference in its statement of reasons to some of what was said by the applicant and some of the things which were put to the applicant by the Tribunal, but I am not prepared to find that the Tribunal’s description of the hearing is complete. It is quite possible that additional things were put to the applicant which it has not narrated, and that the applicant said things which it has not narrated.
At around the time of the hearing, the applicant presented some additional documents. They included a letter dated 17 October 1997 purporting to be signed by a person “Incharge MQM Australia Unit”, addressed to the Tribunal (“the Australian MQM letter”). This stated:
Mr [the applicant], son of Mr [the applicant’s father] has been unit incharge of MQM unit 189 sector Gulbahar, Nazimabad, Karachi.
He and his family members have suffered enormous physical and mental distress since the commencement of the Army Operation “Clean‑Up” on June 1992. The personnel of law Enforcement Agencies and their sponsored terrorists Haqiqi group threatened their lives.
It is pertinent to mention the present condition in the urban Centers of Sindh Province specially the cities like Karachi, Hyderabad, Sukkur, Mirpurkhas and Nawabshah. The Government of Pakistan has intensified Extra‑judicial killings of innocent Mohajirs. The cordoning off operations of Mohajir localities has become a daily occurrence. During these operation, on the pretext of searches, the Police, Rangers and personnel of other Law Enforcement Agencies along with their sponsored terrorists Haqiqi group break into the houses of innocent and helpless Mohajirs. The raiding parties take the unlawful possession of the household valuables, beat the men, women and even elderly persons and children.
Under these circumstances if Mr [the applicant] returns to Pakistan it is most likely that he will be arrested arbitrarily, tortured or even extra–judicially executed. In the view of the aforementioned facts it is requested that his case for asylum be considered sympathetically on humanitarian grounds.
In its statement of reasons, the Tribunal referred to the claims made to the Department and in the application for review, which I have referred to above. It said that, at the commencement of the hearing, the applicant also produced a warrant for his arrest dated April 1993, which he claimed related to allegations that he had been used as “a collector of moneys from important businessmen who did not wish to let the authorities know that they were supporting the MQM”. He claimed that this explained why the police were looking for him in 1992 and why he had to leave the country at that time. The applicant told the Tribunal that he had only recently received permission to inform the Tribunal of this.
The Tribunal said in one paragraph: “Mr [the applicant] told the Tribunal that his brother had been killed in October 1996 by persons unknown. He produced a death certificate”. The Tribunal did not refer to any discussion concerning the death nor its implications for the applicant’s own claims. The certificate is from a hospital in Karachi and certifies the death of a person, whom the applicant identified as his brother, with an admission date of 3 October 1996 showing death resulting from gunshot. No other circumstances of this event can be gleaned from the certificate. There is no evidence that the applicant gave the Tribunal any further details of this event.
The Tribunal referred to background information concerning the MQM, its establishment in 1978, and its treatment in the course of an “anti‑crime campaign of the army in Sindh in April 1992” and the Government’s “Operation Clean‑Up” in that province in May 1992. The Tribunal then referred to more recent country information from 1997, and in particular a DFAT cable of 26 May 1997 which said:
The conflict in Karachi was essentially one between the MQM and the Government rather than MQM and the Pakistan Peoples’ Party (PPP) … The MQM, which secured 28 seats of the 109 in the Provincial Assembly, has entered a Government in Sindh in a coalition with the PML (N) and a number of minor parties and independents. It now has no solid reason to fear the security forces in Sindh or in Karachi as long as they remain part of the provincial government. Some MQM leaders have continued to express concern … but realistically it would be very difficult for intelligence/security agencies to do anything substantial against the MQM unless the Sindh Assembly was suspended or dissolved. A large number of criminal cases against MQM members have been withdrawn by the present provincial government.

The Tribunal referred to this evidence being put to the applicant. It also put to the applicant information obtained by the Department from the MQM International Secretariat in London, referring to a problem of fraud by asylum seekers claiming connection to that party. It said:
This independent evidence was put to [the applicant] at the hearing on 22 October. [The applicant] responded by providing the Tribunal with a range of published material about the situation in Karachi over the past few months. This material pointed to the fact that since the coalition had come into power violence against MQM members had continued. It was apparent that the violence was perpetrated by a breakaway faction of the MQM, the MQM – Haqqiqi. MQM leaders were accusing the Government of allowing this group to attack it and it warned that violence might escalate unless the Government intervened. The Tribunal notes that, while concerned, the MQM leadership was cautioning its members to remain calm. The Tribunal read an item in the ‘Dawn’ newspaper, published in Karachi on 6 October, which quoted the Pakistan Interior Minister as saying that the Government refuted the MQM allegations that the paramilitary Rangers were helping the Haqqiqi faction. He said, “This is a totally baseless allegation. The Rangers are under the command of the Sindh Government, of which the MQM is a component.” In the same article the Minister refuted the allegation made by the MQM that the Government was about to attack the MQM. He also addressed the question of the withdrawal of arrest warrants. “Prime Minister Nawaz Sharif has assured MQM leader Altaf Husain at a recent meeting with him in London that old cases pending against MQM leaders and supporters will not be referred to the anti‑terrorism courts set up under a recent law ... [The Minister said] if someone was implicated in a murder case only because of political rivalry, it would not be sent to the new courts.”
[The applicant] was asked to comment on the DFAT cable of 27 May on MQM/Government relations. [The applicant] said that the High Commission was in Islamabad and that all the people working there were Punjabis so the Australian High Commission was poorly informed.
[The applicant] told the Tribunal that despite the political changes he would face arrest and probably death if he returned because of his association with the MQM. At the hearing he produced a letter from MQM Australia. This letter said that the Government of Pakistan had intensified extra‑judicial killing of innocent Mojahirs.
According to correspondence from the International Secretariat of the MQM to the Australian High Commission, London, “Membership of the Australian Branch [of MQM] is on a voluntary basis and anyone in Australia can join. ... This membership is allowed or denied by the London Office. … Most cases of asylum that have come to our notice at the international level of potential asylum seekers are fundamentally of a fraudulent nature. … it is clarified that our London office being fully conversant with details of membership and our political activities, can judge fairly whether there is a genuine threat or not ... new members are all most welcome but that is not a ground of seeking asylum alleging fear of persecution in Pakistan from any country on the basis of such newly acquired membership of the MQM.”
The Tribunal put this to [the applicant] and asked whether he had approached MQM in London. [The applicant] said that he had not done so because there were many MQM members in Pakistan and it could not be expected that the International Office in London would know them all.
Under the heading “Findings and Reasons”, the Tribunal properly informed itself as to its duty to make findings as to what evidence was credible. It made a clear finding that it was not satisfied as to the credibility of the applicant’s claims to have been an active member of MQM in Pakistan. It explained this finding:
The Tribunal is not satisfied, on the evidence presented to it by [the applicant], that he was an active member of the MQM in Pakistan. [The applicant] has changed his claims during the course of his application for a protection visa and review. He has produced a considerable volume of printed material about the MQM and the situation in Karachi but he has not been able to convince the Tribunal that all his claims are credible. Matters, such as the attack on the bus in 1986, have been introduced and then forgotten, and other material, such as the claim to have been a financial courier, were introduced late in the day and are impossible to substantiate because the only names [the applicant] was able or willing to provide were of people who were prominent in Karachi but who had been killed some time ago.
The Tribunal gave a second, and in my opinion, independent reason for not being satisfied that the applicant had a well‑founded fear of persecution:
Even if the Tribunal was able to find that [the applicant] was an active member of the MQM, this would not assist [the applicant’s] claims. The Tribunal is mindful that in MIEA v Anor v Singh (1997) 142 ALR 191 the Full Federal Court stated that the relevant date at which to assess an applicant’s claims to refugee status is the time that the decision is made. The Tribunal accepts the published evidence, including the evidence submitted at the hearing by [the applicant], that there is unrest in Karachi and that there is some confrontation between rival factions of the MQM. [The applicant] has made no claim that he is a target for this inter‑factional conflict. His claims relate to Government sponsored violence against the MQM and against him and his family for supporting the MQM. The Tribunal accepts the DFAT view, in O.IS 2577 cited above, that “[the MQM] now has no solid reason to fear the security forces in Sindh or in Karachi as long as they remain part of the Provincial Government” and that “A large number of criminal cases against MQM members have been withdrawn by the present Provincial Government.” This, together with the reported comments of the Minister for the Interior on 6 October, cited above, and the correspondence from the International Secretary of the MQM, in the Tribunal view, satisfies the Tribunal that there is no real chance that [the applicant] will face persecution arising from his membership of the MQM should he return to Pakistan.
The applicant’s original application and his amended application were filed without any apparent assistance in March and October 2004 respectively. The amended application makes claims of failure of procedural fairness and breach of s.418(3), such as were addressed in the “Muin and Lee” cases. However, no evidence to establish such breaches has been presented to the Court, and the applicant’s solicitor disclaimed reliance upon all of these grounds when appearing before me today.
The applicant’s solicitor, Mr Jayawardena, filed a notice of appearance eight days ago, and filed an outline of submissions subsequent to the filing of the respondent’s written submission. He addressed me on a number of errors in the Tribunal’s reasons. His arguments departed from the grounds shown in the application and amended application and also from his written submission. Mr Jayawardena did not assist me with an amended application focussing his argument, and I propose to direct that he file an amended application within seven days containing only the grounds which he addressed, so as to attempt to keep the record clear.
His outline of submissions contains two grounds, described as new grounds. The first “new ground” alleged that jurisdictional error occurred by reason of a failure to comply with the current s.424A(1) of the Migration Act. However, he conceded that that section came into operation subsequent to the present Tribunal’s decision, and could not be relied upon (see Migration Legislation Amendment Act (No.1) 1998 (Cth), s.2(2) and Sch.3 cl.20).
His second “new ground” alleged jurisdictional error because “the Tribunal failed to make an assessment in terms of the jurisdictional commitment in sec.94R(2)(a) [sic: s.91R(2)(a)] of the Migration Act 1958”. However, that section also came into operation after the present Tribunal’s decision.
Notwithstanding these difficulties facing his written outline, I understood his oral submissions to identify three areas of the Tribunal’s decision which he argued showed error amounting to jurisdictional error. Doing the best I can, I consider his arguments were as follows.
Argument 1. This argument referred to the Tribunal’s description under the heading “Claims and Evidence” of the interview with the delegate. The Tribunal said:
At his interview with a departmental official in December 1995, [the applicant] produced a range of material about the MQM in support of his claim to have been a member, including what he claimed was a letter confirming that he had been appointed a member of the MQM in 1986. At that interview [the applicant] was unable to satisfy the departmental officer that he had been an active member of the MQM. At the interview he also said that he had not been beaten by security forces in 1992 but that his brother had been interrogated about [the applicant’s] whereabouts and beaten in the process.
Mr Jayawardena argued that in fact there was no evidence that the applicant “also said that he had not been beaten by security forces in 1992”. He argued that the Tribunal’s misstatement evidenced a failure of procedural fairness by the Tribunal, because it had not put to the applicant that he had said to the delegate the words attributed to him by the Tribunal.
There are many problems facing this argument. I think the initial problem is that I am not satisfied that the applicant did not say at the Department interview that he had not been beaten by security forces in 1992. In my opinion, the delegate’s summary of the interview implies that this was said by the applicant, and in the passage from the delegate’s reasoning which I have extracted above at [12], the delegate said: “it was established at interview that the applicant himself was not arrested or beaten by security forces …”. I am therefore not satisfied that it was not open to the Tribunal to describe the interview in the terms criticised.
Moreover, I cannot understand how the argued error of the Tribunal could give rise to any failure of procedural fairness, since it was not contended to me that indeed the applicant claimed before the Tribunal that he had ever suffered at the hands of the police. I can see no significance in the suggested error, even if it occurred.
Considering procedural fairness more broadly, the Tribunal’s adverse findings on the credibility of the applicant’s claims might be seen as drawing conclusions from the changes to the claims made by the applicant over the years, but on the evidence before me the applicant’s delays in making significant new claims appears to have been sufficiently canvassed with the applicant at the hearing. On the evidence before me, I am certainly not prepared to find that it was not.
The fact that the applicant’s original refugee claims made no claim to have suffered physically at the hands of police may have provided a starting point for the Tribunal’s assessment of credibility, but this was a matter of assessment of evidence which should have been apparent to the applicant. I am therefore not satisfied that any jurisdictional error arises from any point sought to be made by Mr Jayawardena in relation to the Tribunal’s reference to the delegate’s interview.
Argument 2. As I understood it, Mr Jayawardena contended that the Tribunal failed to address a significant separate claim to fear persecution for a Convention reason if he returned to Pakistan. It was argued that this claim was implicit in the applicant’s statement to the Tribunal that his brother had been killed in October 1996 by persons unknown.
The Tribunal has clearly been aware that this fact was presented by the applicant, since it has referred to it in its description of the hearing. It is true that its subsequent reasoning does not contain any specific discussion of the import of that fact on the applicant’s claims. However in my opinion, this omission does not evidence a failure by the Tribunal to address a claim requiring attention upon principles discussed by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. The obligation to address claims raised by an applicant relates to claims that “must emerge clearly from the materials before the Tribunal” (see NABE at [68]). On the material before me, I am unable to identify any claim clearly articulated by the applicant to the Tribunal at the hearing concerning his position in 1997 and the foreseeable future, which claimed that he was put at additional or separate risk by reason of his brother having been shot for a Convention reason.
In the terms in which this fact was presented to the Tribunal, no Convention reason appears to have been suggested to the Tribunal for the brother’s death, and in my view, it was open to the Tribunal not to give it any express attention in its discussion of the applicant’s other claims.
Argument 3. Relating to the same matter, Mr Jayawardena made what I think is a separate contention: that there was a failure by the Tribunal to address a refugee claim by the applicant, which arose from the combined evidence of the violent death of the brother, and the apparent acceptance by the Tribunal that there was in 1997 evidence of “violence perpetrated by a breakaway faction of the MQM against regular members of the MQM”.
I have referred to the evidence before the Tribunal concerning this, and how it was put to the applicant above at [20]. In my opinion, it was open to the Tribunal to conclude that the claims made by the applicant did not raise a clearly articulated claim to fear persecution at the hands of a “breakaway faction of the MQM”. I can find no evidence that he presented such a fear to the Tribunal. Nor, if it is relevant, can I find evidence that the brother’s death was presented to the Tribunal as having occurred in the course of that violence. The Tribunal did consider whether the applicant’s claims related to factional violence within the MQM, and made a finding that “[the applicant] has made no claim that he is a target for this inter‑factional conflict”. I am not persuaded that it was not open to the Tribunal to make that finding.
I reject the submission that such a claim was implicit in the applicant’s original 1994 refugee application reference to fear from “opposition groups”, and in my view it was open to the Tribunal to have read that reference as being to rival political parties in competition with the MQM at that time.
It is not contended that there was any evidence that such a fear still affected the applicant in 1997. On my reading of the Tribunal’s description of the hearing, the applicant’s concerns related to the actions by the government of Pakistan and its supporters, in particular as presented by the Australian MQM letter, which the Tribunal has addressed and put aside.
I am not persuaded, whether under the second or the third argument, that there was any claim that the Tribunal had failed to address giving rise to jurisdictional error.
For the above reasons, I have not been persuaded that the Tribunal’s decision is affected by any error permitting the granting of relief by way of writs of certiorari and mandamus under s.39B of the Judiciary Act. I shall therefore dismiss the application.

I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 10 May 2006