SZLJE v Minister for Immigration - [2008] FMCA 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLJE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 243

MIGRATION – Review of decision of Refugee Review Tribunal – procedural fairness – whether the Tribunal raised the issues arising in relation to the decision under review – Tribunal found that applicant could safely and reasonably relocate – whether the applicant’s future conduct was an “issue” arising in relation to the decision under review – finding that the issue was whether it was reasonable for the applicant to relocate – application dismissed.

Migration Act 1958, ss.422B, 425

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515
Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
F Hoffman-La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295
Kioa v West[1985] HCA 81; (1985) 159 CLR 550
SZHZD v Minister for Immigration & Anor [2008] FMCA 4
SZJUB v Minister for Immigration & Citizenship[2007] FCA 1486
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration & Citizenship v Applicant A125 of 2003[2007] FCAFC 162
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38
Wu Shan Liang v Minister of Immigration and Ethnic Affairs [1995] FCA 1327
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

Applicant:

SZLJE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2952 of 2007

Judgment of:

Nicholls FM

Hearing date:

11 February 2008

Date of Last Submission:

11 February 2008

Delivered at:

Sydney

Delivered on:

3 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr L J Karp

Solicitors for the Applicant:

Legal Aid Commission NSW

Counsel for the Respondent:

Mr M Izzo

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application made on 25 September 2007 and amended on 16 October 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2952 of 2007

SZLJE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under the Migration Act 1958 (“the Act”) on 25 September 2007 and amended on 16 October 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 20 September 2007 and handed down on 20 September 2007, which affirmed a decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”) from which the following background can be discerned.
The applicant is a citizen of Pakistan. On 28 June 2007 he arrived in Australia, and applied for a protection visa on 24 July 2007 (application reproduced at CB 1 to CB 111, with annexures). On 6 August 2007 a delegate of the respondent Minister refused to grant a protection visa. On 8 August 2007 the applicant sought review of that decision by the Tribunal (application reproduced at CB 131 to CB 135).
By letter dated 14 August 2007, the Tribunal wrote to the applicant, pursuant to s.425 of the Act, inviting the applicant to attend a hearing.
On 30 August 2007 the applicant attended a hearing before the Tribunal. Also present was his representative, a lawyer with the Legal Aid Commission of NSW, which continues to represent the applicant before this Court. He was also assisted by an interpreter in the Pashtu language. The Tribunal’s account of what occurred at the hearing is reproduced in its decision record (at CB 195 to CB 215).

The Applicant’s Claims to Protection

The applicant’s claims to protection are contained in his application for a protection visa, a bundle of supporting documentation sent on 8 December 2006 (CB 54 to CB 111), in written submissions sent to the Tribunal (CB 148 to CB 153) together with a further bundle of supporting documents sent to the Tribunal on 28 August 2007 (CB 154 to CB 166), written submissions sent to the Tribunal sent after the hearing (CB 167 to CB 171) together with a bundle of further supporting documents sent on 4 September 2007 (CB 171 to CB 176), statutory declaration dated 20 July 2007, further submissions dated 5 September 2007 (CB 181) and a bundle of further supporting documents (CB 183 to CB 186), a letter from the Legal Aid Commission of NSW dated 17 September 2007 and two reports in support of the application (CB 187 to CB 191).
The applicant claimed that his son had been recruited by Nefaz-e-shariat (“the jihadist group”), a Mulsim jihadist group, to fight “jihad” in Afghanistan. In November 2006, the applicant was told that his son had been killed. The applicant travelled to another village and approached Fazul Ullah (referred to as “Maulana Fazalullah” in the Tribunal’s decision record), the leader of the jihadist group, and asked about the whereabouts of his son. He was told that his son had died in Afghanistan. The applicant claimed to have made a complaint to police about Fazul Ullah. He claims the police then alerted the jihadist group to the fact that he had made a complaint.
The applicant claimed that he was publicly named as a “kafir” or infidel on the radio station owned by the jihadist group, that he was then chased and shot at, and that he received threatening letters.
The applicant claims that he was fearful for his life and that he and his family relocated to Karachi. He claims that he was sent threatening letters while in Karachi, demanding that he withdraw his complaint to the police.
The applicant also gave an account of how he came to Australia as a merchant seaman, and met people who assisted him while preparing his application for a protection visa.

The Tribunal

The Tribunal found that while it had some doubts about the credibility of the claims made by the applicant, it gave the applicant the benefit of the doubt because it was unable to make any positive or adverse findings of fact in relation to the applicant’s substantive claims, nor could it make any conclusive adverse findings of fact in relation to the applicant’s credibility. It found that because of this, and based on country information available to it, that there was a real chance that if the applicant were to return to live in his home area of Pakistan (the Swat region of the North West Frontier Province – “NWFP”) in the foreseeable future he would be persecuted (CB 213.2).
However, the Tribunal found that the applicant could reasonably and safely relocate elsewhere in Pakistan (if he wished to avoid sectarian violence and religious extremism, then this would mean relocation to another part of Pakistan other than Karachi) (CB 214.5). The Tribunal was therefore unable to be satisfied that the applicant was a person to whom Australia owed protection obligations.

Application to the Court

In his amended application, the applicant seeks review on the following grounds:
“1. The Tribunal breached the requirements of s 425(1) Migration Act.”
[particulars]
“2. The Tribunal failed to ask a question that in the circumstances of this case, was required to be asked to complete the exercise of its jurisdiction.”
[particulars]

Hearing Before the Court

At the hearing before the Court, Mr L J Karp appeared for the applicant, and Mr M Izzo appeared for the first respondent.
In addition to the Court Book, the Court has before it the affidavit of Bill Gerogiannis, solicitor, annexing a transcript of the hearing before the Tribunal, and written submissions from both the applicant and the first respondent.

Background to the Applicant’s Case

The applicant’s position is that on a plain reading of the Tribunal’s analysis in its decision record, the Tribunal accepted many of the applicant’s claims, and was satisfied that if the applicant were to return to live in his home area in Pakistan that there was a real chance of his being persecuted. This conclusion appears in the decision record as reproduced at CB 213.3.
That the Tribunal then turned to consider the issue of whether the applicant could relocate elsewhere in Pakistan: “The Tribunal next considered the issue of relocation within Pakistan” (at CB 213.3).
Mr Karp’s submission was that in considering the issue of relocation, the issue was “not so much whether it would be reasonable in a range of circumstances for him to relocate” but whether he would be threatened, or he would face a chance of persecution if he were to go elsewhere in Pakistan. I did not understand this to be any submission that the Tribunal did not need to take into account, or to consider the reasonableness of relocation in relevant circumstances, but rather an emphasis in considering this issue on whether the applicant would be threatened elsewhere in Pakistan.
In this regard, in particular, the Court was referred to the transcript of the hearing before the Tribunal (“T”). At T 27 line 24, the Tribunal raised the issue of the applicant’s concern as to whether Fazul Ullah’s followers would find him if he were to go elsewhere in Pakistan. Mr Karp submitted that the applicant’s honest answer (given that it may have been seen as against his interest) that he could live elsewhere in Pakistan, if there was no threat to his life, is reflected in the Tribunal’s posing of the question it needed to answer, as set out at CB 213.4: “The Tribunal has considered whether the applicant’s behaviour will cause him trouble anywhere else in Pakistan unless he is discreet.”
Mr Karp’s submission was that the following paragraphs set out a part of the reason for the Tribunal’s rejection of the proposition that the applicant could not live safely elsewhere in Pakistan:
“The Tribunal has considered whether the applicant’s behaviour will cause him trouble anywhere else in Pakistan unless he is discreet. The behaviour that caused the problem for the applicant was his reporting of Maulana Fazalullah to the police for recruiting his son and sending him to Afghanistan to fight in a jihad. The Tribunal is of the view that it is highly unlikely that the applicant will in fact repeat this behaviour if he relocates to Karachi or some where else in Pakistan.
The applicant also chose not to report the oral and written threats that he received and the shot being fired at him to the police at the time these incidents occurred. The Tribunal is of the view that it is highly unlikely that the applicant will report these incidents to the police in the future. The applicant and his family will be able to live a normal life and act reasonably in Karachi or somewhere else in Pakistan without attracting the adverse attention of the TNSM.” (CB 213.4 to CB 213 6).
The applicant’s submission is that these two paragraphs, and what follows to the end of the “Findings and Reasons” in the Tribunal’s decision record, all constitute its consideration relating to relocation of the applicant away from his local home area to elsewhere in Pakistan.

The Grounds

Against this background, the applicant’s grounds make two attacks on the Tribunal’s decision. The first is that the Tribunal breached the requirements of s.425 of the Act by failing to disclose to the applicant certain issues in relation to the decision under review in light of the direction and guidance provided by the High Court in relation to that section in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515 (“SZBEL”).
The second is that while the Tribunal formulated the correct question in relation to relocation (that is, whether the applicant would need to modify his behaviour if he were to be able to live safely elsewhere in Pakistan) the Tribunal failed to answer that question properly.

Ground – Section 425 – The applicant

In relation to the first ground, the applicant referred the Court to SZBEL and in particular at [33]:
“The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.”
The submission is that while the Tribunal noted that the applicant had reported Fazul Ullah to the police, and had received oral and written threats as a result (threats which he had chosen not to report to authorities), nonetheless, in considering the issue of relocation elsewhere in Pakistan, it did not question the applicant as to whether he would complain to the authorities about Fazul Ullah if he were to relocate. The significance was that the Tribunal formed the view that it was highly unlikely that the applicant would repeat his behaviour (in reporting Fazul Ullah) if he were to relocate elsewhere in Pakistan.
He submitted that the death of the applicant’s son was not something that he was likely to forget, and that the Tribunal should not have assumed that the applicant would not complain, particularly if it was considering this question in the circumstances of whether he were to move elsewhere in Pakistan.
The submission was that while the wording of s.425(1) requires that the Tribunal (in light of SZBEL) give the applicant an opportunity to present arguments relating to “the issues” in relation to the decision under review, this must include something more than just consideration of the individual claims as stated by an applicant, given that the High Court in SZBEL endorsed what was said by a Full Court in Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 (“Alphaone”), and that this informed it of the obligations pursuant to s.425. That is, that the applicant would be given the opportunity of ascertaining the issues relevant to the disposition of the review.
In sum, the applicant’s complaint is that the Tribunal decided that it was unlikely that he would repeat his behaviour, that is, the behaviour of reporting Fazul Ullah to the authorities, or of complaining to police about the threats from jihadists, if he were to relocate in Pakistan. The applicant identifies the issue arising in relation to the decision under review in these circumstances as being whether he would in fact repeat his behaviour or make complaints. That this was not put to him, or disclosed to him at the hearing (with reference to the entire transcript), meant that the Tribunal had not discharged its obligation pursuant to s.425 as explained in SZBEL.

Ground – Section 425 – The Response

The Minister contends that the complaint, and reliance on s.425, is misplaced for essentially three reasons.
The first is that the proposition arrived at by the Tribunal, that it was unlikely that the applicant would repeat his behaviour of complaining about Fazul Ullah, or the threats that he had received, was a conclusion that arose from the account that the applicant himself gave to the Tribunal. In particular, these matters were not matters of any doubt.
Mr Izzo submitted that in SZBEL the Court was concerned with circumstances where the Tribunal failed to put the applicant on notice of those aspects of the claims about which the Tribunal had doubt. In this regard, he referred to the Court to SZBEL at [47]:
“ ... But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
That is, the question as to whether he would, after relocating elsewhere in Pakistan, report Fazul Ullah to the authorities or report the threats that had been made to him, were not aspects of his account that were rejected by the Tribunal, but were inferences arising from the account of his claims which the applicant gave.
Mr Izzo emphasised that on the matter of reporting Fazul Ullah to the authorities, the applicant’s evidence was that this had already occurred. But importantly, there was nothing of what the applicant had put to the Tribunal to say that he would do that again. Similarly, in relation to the reporting of the threats, the transcript reveals (T 22) that the applicant had not reported these threats to the authorities in the past.
The essence of this response is that there was nothing in what the applicant put to the Tribunal to indicate that he would, in fact, complain in the future. That, clearly, these were not aspects of the applicant’s claims. In this light, Mr Izzo, submitted, the matters now relied on by the applicant were not “issues” in the context of s.425, and nor, for that matter, were they “issues” relevant to an application to the common law test of procedural fairness. Essentially, what was before the Tribunal as to why the applicant had acted as he relevantly had in the past, led to no controversy as to whether he would act differently in the future.
He submitted that the word, “issue,” in the context of SZBEL, should be understood, as it derives from, and depends on, the facts of the particular case. Mr Izzo referred the Court to the approach taken by the High Court in SZBEL. The starting point is the delegate’s decision, then to note what was determinative there, and to then determine whether what was ultimately determinative before the Tribunal relied on a matter that was not before the delegate, or had not arisen before the delegate, had not been raised at the Tribunal hearing, and therefore, the applicant was not on notice as to its relevance in relation to the decision under review (see in particular SZBEL at [35]).
Mr Izzo also submitted that in the case currently before the Court, the level of specificity at which Mr Karp sought to define “the issue” is too narrow, because the applicant asked the Court to find that “the issue” was whether the particular behaviour would be repeated in the future. Rather, Mr Izzo submitted that the issue was whether it was reasonable for the applicant to safely relocate elsewhere in Pakistan. In this regard, Mr Izzo referred the Court to that part of the delegate’s decision record (reproduced at CB 129), where relocation was identified by the delegate as being determinative.
Further, with reference to the transcript of the hearing (see in particular T 26 and T 27), at the instigation of the applicant’s representative, who was also at the hearing, that the Tribunal raised a number of questions relevant to the issue of relocation.
Mr Izzo’s submission was that the issue of relocation was raised with the applicant at the hearing, and that if one of the reasons that he could not be safe elsewhere in Pakistan was that he would seek to report Fazul Ullah to the police, and would seek to report the threats that he had received in the past, then it was open to the applicant to have said so in response to the Tribunal’s questions.
The respondent’s argument was that the Tribunal formed the view that it was unlikely that the applicant would repeat his behaviour if he were to relocate elsewhere in Pakistan (a specific point not raised by the delegate) and that this is indicative of the Tribunal’s reasoning, beyond where the delegate had reasoned, but reasoning arising from what the applicant himself had claimed and, in part, arising from what the applicant himself had said at the hearing. Mr Izzo referred the Court to SZBEL at [48], where the Court cited with approval what was said by Lord Diplock in F Hoffman-La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295 at 369; [1974] 2 All ER 1128 at 1157:
“The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity to criticise his mental processes before he reaches a final decision.”

Noting also that the Court in SZBEL said at [48]:
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
In third, part of the response was to remind the Court that the obligation on the Tribunal to give notice of issues arising in relation to the decision under review arises only where the issue is dispositive or determinative of the review (SZBEL at [35],[43],[44]). Mr Izzo drew the parallel with the common law procedural fairness requirements (as for example set out in Kioa v West[1985] HCA 81; (1985) 159 CLR 550 (“Kioa v West”)) where the Court referred to matters that were “relevant, credible, and significant.” Mr Izzo’s submission was that even if the matters identified by the Tribunal, relating to the applicant’s future conduct to report on the events of the past, the Tribunal’s findings in relation to these matters were not in themselves dispositive of the applicant’s claims. That what was ultimately dispositive of the applicant’s claims was country information available to the Tribunal that indicated that the influence of Fazul Ullah, and related groups, was confined to the applicant’s home area in Pakistan. That there was not a real chance that Fazul Ullah or his followers would pursue the applicant to other areas of Pakistan, and, further, that the applicant, on the evidence available to the Tribunal, had no contact with any extremist organisation while he lived in Karachi, and that it was a remote possibility that it would be of sufficient interest to such groups such that they would pursue and locate him in Karachi or some other part of Pakistan (see generally CB 113).

Ground – Section 425: Consideration

The applicant complains that the Tribunal failed to provide procedural fairness to the applicant pursuant to s.425(1) of the Act, and in light of the explanation provided by the High Court in SZBEL as to the meaning of “issues arising in relation to the decision under review” appearing in that section. The applicant identifies the two “issues,” that he says were not disclosed to him as, if the applicant were to relocate away from his home area to Karachi, or elsewhere in Pakistan, that it was highly unlikely that he would again report the leader of a jihadist group to police for recruiting his son, as he had done in the past, and further, that it was highly unlikely that he would report the incidents involving threats and an attack on him to police, which he had not done in the past.
The Minister contends that the two matters identified by the applicant as “issues” are not, relevantly, “issues” in the sense in which the High Court explained in SZBEL.
Other than reference to SZBEL itself, neither party before the Court provided any further authority in relation to the matter of what may properly be understood as an “the issue” for the purposes of s.425 and SZBEL. I note, however, that the matter as to what may be an “issue” for these purposes was recently considered by Barnes FM in SZHZD v Minister for Immigration & Anor [2008] FMCA 4 (“SZHZD”) (see generally [27] to [67] and, in particular, [34] to [43]) as to the matter of “issue” in this context, and the Tribunal’s relevant obligation). I respectfully agree with Her Honour’s analysis of the meaning of “issue” for the purposes of s.425(1). On this matter, I also draw guidance from what was said in SZJUB v Minister for Immigration & Citizenship[2007] FCA 1486 (“SZJUB”) per Bennett J.
In the matter currently before the Court, both parties drew attention to the context within which the obligation in s.425(1) is said to arise. This was in the context of “procedural fairness.” To the extent that the parties made reference to this matter and, in particular, I note submissions by Mr Izzo, to the extent that he may have sought to draw parallels between procedural fairness for the purposes of s.425, and its features at general common law (with reference to Kioa v West), then I respectfully agree with the approach taken by FM Barnes (see [38] of SZHZD).
In SZBEL, the High Court endorsed what was said in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (see SZBEL at [25]) as to what is required by procedural fairness, and further endorsed what was said in Alphaone (1994) 49 FCR 576 at 590-591, and see SZBEL at [32]:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."
However, (see SZHZD at [34]-[35]), since the introduction of s.422B of the Act (which also applies in the current case) what must be addressed is whether there has been a breach of one of the statutory requirements in Division 4 of Part 7 of the Act, and in this case obviously s.425. In that context, the High Court in SZBEL emphasised the “statutory scheme,” (see SZBEL at [33] to [38], in particular), that in the context of s.425 what must be borne in mind is the question of whether the Tribunal has fulfilled the requirement to invite the applicant to appear before it to give evidence “relating to the issues arising in relation to the decision under review” (see SZBEL at [33] at [33]).
In SZBEL at [35] the High Court said:
“The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”
On the matter therefore of what may constitute an “issue,” for the purposes of s.425, I respectfully agree we what was said by Barnes FM [39] of SZHZD:
“An exercise in characterisation must be undertaken to identify what are the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based. It is those issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s.425.”
In the case currently before the Court, there was a divergence between the parties in relation to the matters as to whether the applicant would complain to the authorities about Fazul Ullah, if he were to relocate, and as to whether the applicant would complain to the authorities about threats that had been made to him in the past, if he were to relocate away from his home area.
Do these matters constitute “issues,” which are determinative issues which dispose of the review, as submitted by Mr Karp, or are these matters not capable of being identified as “issues,” in the sense as referred to by the High Court in SZBEL, as submitted by Mr Izzo?
As to where the line may be drawn as to what constitutes an issue arising in relation to the decision under review, and what constitutes factual matters, in relation to such an issue (that is, matters forming some part of the substratum of the issues) I find guidance in the approach taken by Bennett J in SZJUB, as did FM Barnes in SZHZD.
In SZJUB, the applicant, who came from (the People’s Republic of) China, claimed to have become a Christian after her arrival in Australia, but claimed to fear persecution on the basis that she had subsequently smuggled bibles into China, and would be regarded by the authorities as a Christian, or as a person who had engaged in smuggling bibles (see SZJUB at [3]and [5]). The applicant’s complaint was that the Tribunal did not raise with her at the hearing the “specific question” as to why she would take the risk of smuggling bibles, when she had a business and an 11-year-old dependent child (see SZJUB at [23]).
After considering at relevant parts of the transcript (at [24]) the Court stated at [25]:
“The Tribunal clearly put the appellant on notice that it was having real difficulty in accepting that she would take the risk of being involved in a smuggling operation and being the target of the PSB. Those statements and questions by the Tribunal sufficiently indicated to the appellant that everything she said on this subject was in issue (SZBEL at [47]). The issue for the Tribunal was whether to believe the appellant. That raised the issue of whether she would have smuggled Bibles in view of the potential risk. The question is whether the fact that she had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it.”
Specifically in relation to the matters which the applicant said were “issues” not put to her at the hearing, the Court said at [28]:
“In the context of the Tribunal decision, the business and the child were not the issues on which the decision to reject the appellant’s claim were based. They were not determinative but additional factual matters that elaborated the matters to be balanced against the risk. The key point in the Tribunal’s assessment was the fact that there was a risk to the appellant and, in those circumstances, it did not accept that there was sufficient reason for her to take such a risk. The appellant was directed to that issue at the hearing, asked about it and told that the Tribunal found it difficult to accept her evidence. The Tribunal did not fail to comply with s 425 of the Act in this regard.”
At [43] of SZHZD, Barnes FM summarised her consideration in that case:
“Thus, it was necessary for the Tribunal in this instance to raise with the applicant determinative issues in the sense of issues on which the decision to reject the claim were based, but it was not required to descend into all the underlying factual matters when meeting its obligation under s.425. Nor was it obliged to provide “a running commentary upon what it thinks about the evidence that is given” (Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [89]).”
In the case before the Court now, a plain reading of the Tribunal’s decision record reveals that, while it had some concerns about the credibility of the applicant’s claims, the Tribunal accepted that the persecution that the applicant claimed to fear would involve serious harm, and systematic and discriminatory conduct against him “for reasons of his opposition to the religious practice and teachings of the Maulana Fazullah and the TNSM.” (CB 212.8 – TNSM is a jihadist group). Further, that the law enforcement agencies in the applicants home area in Pakistan would be unable to protect him (CB 213).
The Tribunal found, however, that the applicant was able to safely relocate elsewhere in Pakistan (noting what is subsequently said about Karachi). It was this issue which was determinative of the review of the delegate’s decision.
The issue of the applicant’s relocation generally was plainly addressed by the delegate. In his decision recorded at CB 129.8 the delegate concluded:
“If need be, the applicant could reasonably be expected to relocate to another area of Pakistan. In a nation with a population of approximately 168 million people, it cannot be found that the applicant could not re-establish himself safely and away from those he fears.” (CB 129.8).
The delegate took this view based on independent country information available to him that revealed that the relevant jihadist group operated primarily in the applicant’s home area and “had only limited success in expanding its activities beyond … the province.” (CB 129.3)
The transcript of the hearing before the Tribunal, reveals that the Tribunal did question the applicant, as to the report that he claimed to have made against Fazul Ullah (see T 19 at line 4 and following), and questioned him about the threats that he subsequently received and the incident involving an attack on him (see generally T 20 to T 22). The Tribunal then proceeded to question the applicant about his fears about living away from his home area in Karachi (at T 23 line 4: “Can you tell me why you are scared to live in Karachi?”).
As to whether it would be safe for the applicant to live elsewhere in Pakistan in light of his claimed fear of harm from the jihadist leader, the Tribunal put to the applicant at T 25 line 16:
“The information available on the TNSM also indicates that their influence is in the North-West Frontier Province, and more particularly in the Malakan region. Karachi is as far as you can possibly get in Pakistan.”
Specifically in relation to Fazul Ullah, the Tribunal said (at T 25 line 36:
“Okay. So tell me, if he has got all these things to worry about, very serious matters, why is he going to spend his time trying to find one individual?” (again in the context of the applicant being outside of his home area.).
That the applicant’s relocation away from his home area was a “live” matter at the hearing was plainly recognised by the applicant’s advisor at the hearing, and reflective of the Tribunal’s relevant line of questioning. He said (at T 26 line 36):
“In terms of the tribunal’s questions to (the applicant) regarding safety in Karachi, perhaps more questions could be asked regarding the practicality of living long-term in Karachi, given the location issues. It’s in the tribunal’s mind that the Randhawa principle looks at the reasonableness of – not relocation.”
In subsequent questioning, the Tribunal asked (at T 26 line 36):
“Have you thought about moving out of a big city into a smaller village area in the South.”
The exchange that follows (at T 27) is directed to the issue of the applicant being able to safely relocate away from his home area and, in context, even away from Karachi:
“[Applicant]: That’s impossible to- whatever I’m saying, because I am honest, I am saying the truth.
[The Tribunal member]: Tell me why you say it’s impossible?
[Applicant]: That’s – whatever I’m saying – is the truth and because they have lots, you know, a large number of followers everywhere and they are not leaving me alone. I cannot live anywhere. Whoever is just passing evil thoughts against me, they will come and chase me and finish my life.”
That the issue of the applicant being able to safely live elsewhere in Pakistan was a “live” issue at the hearing, can also be seen in what was subsequently said by the applicant’s advisor (at T 27 line 16):
“Again, subject to the tribunal’s view on the question, whether there are any other reasons apart from the security reasons that make it difficult for him to live somewhere else, leaving aside the security issue which [the applicant] has made very clear.”
What follows is directly relevant to the issue of being able to safely relocate away from his home area to Karachi, or somewhere else in Pakistan. At T 27 line 24:
“[The Tribunal member]: [Applicant], you have said to me your main concern is that Fazal Ullah’s followers will find you wherever you go. Leaving aside that issue, is there any other reason why you are not able to continue to live in Karachi or somewhere else?
[Applicant]: Yes, if I don’t feel that there’s no threatening of life, of course I can live. Yes, if there is no life threatening, I can live in Karachi. If someone can guarantee my life there, I can.
[The Tribunal member]: In Karachi, or somewhere else?
[Applicant]: Yes, I’m talking in general, all over in Pakistan because there are Ullah people and followers everywhere. In the event someone can guarantee my life, I can take care of these things.
[The Tribunal member]: You could live anywhere in Pakistan?:
[Applicant]: Yes, if everybody is finished, I will be the same as others, you know that.
[The Tribunal member]: “If everybody has finished, I will be the same as others”?
[Applicant]: Maybe, you know, the followers are not leaving alone others, you know, the jihadi followers.
[The Tribunal member]: Can you please explain that to me. I don’t understand.
[Applicant]: As long as they are alive and they are active anywhere in Pakistan, I will not be able to return; my life is insecure. But if they are finished, their name or their activities not exist there, I can live well. It’s clear?”
That the issue of the applicant’s relocation elsewhere, safe from harm from the jihadists, was understood, can be derived from the advisor’s comment (at T 28 line 49):
“The tribunal also commented that Fazl Ullah has numerous bigger problems than [the applicant] himself, so why would he, given that he’s got all these problems with the authorities, worry about [the applicant] personally. Well, the fact is that it’s not Fazal Ullah that’s going out and doing – that would be doing the chasing; it’s his supporters.
Again, there is evidence in the documents that have been submitted to the tribunal and to the department that Fazal Ullah has a large number of supporters who are willing to do things. There has been suicide attacks, there’s been bombings, there’s been killing of soldiers, killing of civilians in the recent past, certainly the head, the leader of the group, but it’s the supporters who are doing the dirty work, for the want of a better word, and that’s what [the applicant] fears.”
I agree with Mr Izzo that the two matters identified by the applicant now as “issues,” are set at a level of specificity beyond that contemplated by the High Court in SZBEL. The relevant “issue” in relation to this matter, was the question as to whether it was reasonable for the applicant to relocate within Pakistan, and even more specifically, whether it was safe for him to do so, and further, whether it was safe for him to do so in light of his claimed fears of the jihadists.
The issue of relocation was clearly an issue raised by the delegate’s decision. Importantly, however, the discussion at the hearing before the Tribunal, relevantly focussed on the issue of living safely away from his home area, either in Karachi or elsewhere in Pakistan (that is, living in safety, given the applicant’s fears of the followers of the jihadist leader, finding him wherever he was to relocate in Pakistan). The Tribunal, therefore, did address the determinative issue at the hearing. The applicant was clearly on notice as to the importance of this issue, and with his advisor, had the opportunity to give evidence or make submissions on this issue.
That the Tribunal did not specifically ask the applicant whether he would again complain about Fazul Ullah if he were to relocate, and that the Tribunal did not ask whether the applicant would complain about threats that had been made against him in the past if he were to relocate, does not, in all the circumstances, reveal error on the part of the Tribunal. The determinative issue was raised and discussed. To expect the Tribunal to have raised the specific questions put forward by the applicant now, would be to require the Tribunal to put to the applicant factual matters that go to the issue arising in relation to the decision under review. That is, the issue of whether the applicant could safely relocate.

As was said by Bennet J in SZJUB at [25]:
“ …. the Tribunal is not obliged to put each of those factual matters to the [applicant].”
The Tribunal is clearly obliged, in light of SZBEL, to give the applicant the opportunity of addressing the determinative issue (or issues), but not each fact that relates to it, or underlies it. As Mr Izzo submits, requiring disclosure of this level of detail, or more precisely, to matters of this type, would amount to giving an applicant an: “opportunity of criticising a decision maker’s mental processes before he reaches his final decision.” Plainly, the High Court rejected this in SZBEL at [48]. Nor, is the RRT obliged to give: “a running commentary upon what it thinks about the evidence that is given.” (Minister for Immigration & Citizenship v Applicant A125 of 2003[2007] FCAFC 162 at [89])
Mr Karp submitted that the death of the applicant’s son was a matter of some significance (understandably) to the applicant, and that the Tribunal could not assume or expect that he would not complain to the authorities, especially if he moved somewhere else in Pakistan, and considered that the authorities there may have more sway with the central government than the (what was described as) “the weak police force” in his home area.
I did not see this part of the applicant’s submissions as being directly relevant to the resolution of what is pleaded in this ground. The question is whether, in discharge of its obligation pursuant to s.425, and as explained in SZBEL, the Tribunal gave the applicant the opportunity at the hearing to address and give evidence in relation to the determinative issue “arising in relation to the decision under review.”
In my view, and on a plain reading of the material before the Court, the Tribunal did comply with this obligation. That the Tribunal formed the view that it was “highly unlikely” that the applicant would report these matters to the authorities if he were to relocate, was a view that was open to the Tribunal on what was before it and for which it gave reasons. But whatever the situation in this regard, Mr Karp’s challenge to this aspect of the Tribunal’s analysis does not detract from the circumstance that the applicant was plainly on notice that whether he could safely relocate away from his home area or province to Karachi, or elsewhere in Pakistan, was clearly an issue discussed at the hearing - an issue which subsequently was determinative of the review. In these circumstances, I cannot see that the applicant’s ground is made out.

Ground – Failure to ask a question that should have been asked

The applicant’s second ground relies in part on SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (“SZATV”) at [100]-[103]. The applicant asserts that if he could only live safely in another part of Pakistan by not acting on a principle of particular significance to him, then in light of SZATV, relocation would not be reasonable.
Mr Kant submitted that in its decision record at CB 213.4, the Tribunal asked the “right” question:
“The Tribunal has considered whether the applicant’s behaviour will cause him trouble anywhere else in Pakistan unless he is discreet.”
However, the complaint is that the Tribunal failed to properly answer this question. The argument took the following line of reasoning: the applicant attracted the attention of Fazul Ullah and his followers, who were offended by his complaint that he made to the police, and that they threatened him and shot at him as a result, particularly as the applicant would not withdraw the complaint.
Mr Karp asked the Court to “deduce” from the applicant’s claims (with specific reference to the applicant’s statement attached to his protection visa application – see CB 36 at paragraph 17) that the reason that the applicant complained in the first place was because he wanted justice for his son and other young men who had been sacrificed in the course of Jihad in Afghanistan. Mr Karp relied on Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 for the proposition that seeking justice for his son and others in these circumstances may well be indicative of a political opinion. That in asserting that the Tribunal was in error in not considering whether the applicant was seeking justice, was put in circumstances where it could therefore be said that the applicant could have been imputed with a political opinion. Further, there was material before the Tribunal (CB 82 to CB 87) that even if Fazul Ullah did not have personal influence elsewhere in Pakistan, other jihadist groups did.
In these circumstances, Mr Karp submitted, the Tribunal was in error. That while it considered the matter of the safety of, and reasonableness of, the applicant’s relocation, it did not consider whether the applicant would pursue his complaints against the jihadist leader, whether he would make reports of the threats against him for the reason that he felt intimidated. In these circumstances SZATV would apply, because the applicant would be prevented from expressing a political opinion because of a well founded fear of persecution (see SZATV at [27] – [31], [100] – [103]).

Ground Two – The Response

The respondent agreed that the Tribunal the asked the correct question. But submitted that it also addressed its mind to, and provided an answer to, the question in a way that was consistent with what the High Court said in SZATV. In short, the Minister’s response was that the reason that the applicant would make no complaints about the threats made to him (nor repeat the complaint about the Jihadist leader), if he were to relocate, was that such a complaint would serve no purpose not because he feared persecution for doing so.
Mr Izzo’s submission was that, given that there was agreement that the Tribunal had identified the correct question in relation to relocation, there was nothing in the Tribunal’s reasoning to suggest that it was doing anything other than dealing with the answer to that question. That is, its reasoning led it to the conclusion that the applicant would make no further complaint if he were to relocate, because such a complaint would, in the circumstances, serve no purpose, and not that he would feel inhibited in making such a complaint because he feared persecution for doing so.
Mr Izzo’s submission was that the applicant’s position required an unduly prescriptive requirement in circumstances where the issue had already been correctly identified, and the Tribunal was addressing its mind to the resolution of that (“correct”) question. In these circumstances, and given its finding, it was not necessary for the Tribunal to go on and state explicitly, or to address the question explicitly, as to whether the applicant would refrain from making complaints because he feared persecution for doing so.

Ground Two – Consideration

Although not at issue between the parties, I should note that I agree with Mr Izzo that the Tribunal’s expression of the relevant question: “The Tribunal has considered whether the applicant’s behaviour will cause him trouble anywhere else in Pakistan unless he is discreet.” is, in light of SZATV, awkwardly expressed. But in context, does seek to identify the critical issue arising from SZATV. That is, that it would not be reasonable to expect the applicant to relocate elsewhere in Pakistan, if in order to do so he must live “discreetly” so as to avoid the persecution which is feared.
I should also note that the Minister’s submission in part invited the Court, in light of Wu Shan Liang v Minister of Immigration and Ethnic Affairs [1995] FCA 1327 (“Wu Shan Liang”), to read the Tribunal’s decision record beneficially. That is to assume that if the Tribunal has found that there is a good reason as to why it is highly unlikely that the applicant would report the incidents (of past harm) in the future if he were to relocate, or would continue to press his complaint about Fazul Ullah, that there was no need for the Tribunal to then specifically say that these reasons have nothing to do with, or do not lead to, persecution. That is, that the Court should make an assumption as to what the Tribunal was seeking to say. I have some difficulty in agreeing with the Minister’s submissions on this particular point. I do not see what was said by the High Court, with respect, in Wu ShanLiang this gives licence to this Court to read something that is not in the Tribunal’s decision record.
Although the Court was not referred to any specific part of Wu ShanLiang, I took this submission to be particularly derived from what the High Court said at [271] – [272]:
“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 ((1993) [1993] FCA 456; 43 FCR 280). 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 (Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287). The Court continued (Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287): ‘the reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error.’ These propositions are well settled.”
I read this in the sense as further explained by Stone J. in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]:
“The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister of Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271 – 272. The phrase ‘beneficial construction’ as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”
Mr Karp also submitted that to the extent that the Minister’s submissions rely on reading the Tribunal’s findings in relation to relocation segmented fashion, that, in particular, the Tribunal’s finding (at CB 213.7 to CB 213.8), where the Tribunal said that it formed the view that there was not a real chance that “Maulana Fazullah” or his followers would pursue the location and persecution of the applicant outside of his home area, needs to be read in context with the Tribunal’s earlier expressed view that it would be highly unlikely that the applicant would report the jihadist leader and the threats occasioned against him to authorities elsewhere in Pakistan.
Mr Karp emphasised that if this could not be discerned simply from looking at the context of the Tribunal’s relevant findings, then the word “also” (at CB 213.7) links the Tribunal’s consideration of country information relating to the chances of the jihadist leader or his followers pursuing the applicant outside of the applicant’s home area to its earlier finding that it was highly unlikely that he would report them to the authorities if he were to relocate outside of his home area.
I agree with Mr Karp that the Tribunal’s consideration of the issue of relocation within Pakistan must be read holistically and directed to the question as to whether the applicant could safely and reasonably relocate away from his home area elsewhere in Pakistan. In this regard, the Tribunal’s consideration of this question plainly begins at some little point earlier than the posing of the question of whether the applicant would be “discreet” (at CB 213 .4). Plainly, the Tribunal’s consideration of the issue commences at CB 213.3: “The Tribunal next considered the issue of relocation within Pakistan.”
The applicant complains that the Tribunal should have asked the question as to why the applicant may not have complained to the police in another area other than his home area. In my view, it does not require a beneficial reading of the Tribunal’s decision record (in particular that part of its reasoning relating to relocation within Pakistan), to conclude that the Tribunal did not need to ask itself this question because the issue was subsumed in, or made unnecessary given, its findings, and therefore did not require any subsequent express articulation of this question.
Ultimately, I understood Mr Izzo’s submissions to the Court to be, not an invitation to the Court to assume something that was not there, but to see that the absence of any express articulation of the question that Mr Karp now poses and the applicant says the Tribunal should have asked of itself, was due to the situation that, given the findings the Tribunal had made, it was not necessary to specifically address this question in the way put forward by the applicant now.
Both the Tribunal’s decision record and the transcript of the hearing before the Court confirmed discussion at the hearing on the issue of relocation to Karachi or some other area in Pakistan (see CB 202 and T 25, T 28.2, and T 28.8 to T 29.3).
The applicant’s evidence, clearly, was that he feared the reach of the followers of Fazul Ullah and jihadists everywhere in Pakistan. He appears to have rejected the Tribunal having put to him (T 25) that information available to the Tribunal indicated that the influence of the jihadists was limited only to the applicant’s home province and, in particular, in one region, and that their reach outside this area was limited. The applicant’s response was (at T 25.6): “He has a large number of followers. It might be – the price will be killing, blood shedding everywhere, to be arrested.” Further (at T 27.2): “That’s - whatever am saying - is the truth and because they have lots, you know, a large number of followers everywhere and they are not leaving me alone. I cannot live anywhere. Whoever is just passing evil thoughts against me, they will come and chase me and finish my life.”
Read holistically, the Tribunal’s analysis, on the question of the applicant being able to reasonably and safely relocate elsewhere in Pakistan, was not based simply on its finding that it was highly unlikely that the applicant would report his complaints about the jihadists to police elsewhere in Pakistan. Clearly, the Tribunal’s findings followed, in my view, a coherent line of reasoning. That is, that it would be highly unlikely that the applicant would make complaints about the jihadists to police if he were to relocate to Karachi, or somewhere else in Pakistan, and that when this is viewed (“also” – CB 213.7) in light of country information available to it, the influence of Fazul Ullah and the jihadists was confined to one province - the applicant’s home province in Pakistan - and that given the other information available to it about the outstanding warrants for the arrest of Fazul Ullah, and information about the “primary goal” of the jihadists, the Tribunal concluded that there was not a real chance that the jihadists “would pursue the location and persecution” of the applicant outside of his home province, an applicant who “is of little importance to the overall agenda” of the jihadists (CB 213.8).
Further, the Tribunal’s conclusion on the issue of relocation must also be seen in its view of the applicant’s evidence relating to his expressed fears in relocating to Karachi, which the Tribunal saw as “being based on speculation and assumption”(CB 213.9). Given that it was the applicant’s evidence that he had no contact with the jihadists during the time he had lived in Karachi, the Tribunal concluded (notwithstanding the applicant’s claim that he had remained in hiding) that the applicant was not of such interest to the jihadists that he would be pursued in Karachi, or some other part of Pakistan. This finding was plainly open to the Tribunal on what was before it.
It must also be noted (for the sake of completeness) that the Tribunal also considered other aspects relating to the reasonableness of relocation, in particular, the applicant’s personal circumstances, and the practicality of living in Karachi or somewhere else (an issue that was raised during the course of the hearing before the Tribunal), and found that, ultimately, given that there was country information that asserted sectarian violence among religious extremists being “an issue in Karachi” that the applicant was able to relocate to a safer location elsewhere in Pakistan.
Mr Karp submits that the death of the applicant’s son (understandably) was an important issue for him. He also submits that the issue of religious leaders taking young men to fight a jihad was equally felt strongly by the applicant. That may indeed be the case. But I cannot see that this was articulated as a part of the applicant’s claims, in the way put forward by Mr Karp now.
The Tribunal is not required to have dealt with a matter or a submission not put before it, but which may occur to an applicant’s legal advisors after the Tribunal’s consideration has ended. Mr Karp seeks to argue now that the applicant would have been driven to complain if he were to relocate because of the strength of his feelings. He relies on what is set out at paragraph 17 (at CB 36) of the applicant’s statutory declaration of 20 July 2007:
“I told them they had killed my son and I told them that they destroy the lives of young people by the things that they do. I told them that I would not withdraw my report.”
The Tribunal’s view, that it would be unlikely in the future that the applicant would press this complaint if he were to relocate to Karachi or somewhere else in Pakistan, needs to be seen in context. That is, the influence of the jihadists was confined to one province of Pakistan, that the particular jihadist leader had other significant problems to concern him, other than the pursuit outside of his home province of someone who was of little importance to the overall agenda of the jihadists, and in light of the evidence, that the applicant had lived in Karachi, and had not been contacted or approached by the jihadists in that city.
Importantly, despite opportunity provided at the hearing (remembering that the applicant’s current legal advisor was present at the hearing), the applicant did not state that he would again report the jihadist leader or that he would make complaints about the threats he had received in the past. His plainly expressed fears were that having made this complaint, and having come to the attention of Fazul Ullah and his followers in the past, that they would still pursue him no matter where he went in Pakistan in the future..
There is no dispute between the parties that the Tribunal articulated the correct question for the purposes of SZATV. That is, whether the applicant would be required to modify his behaviour if he were to safely relocate elsewhere in Pakistan. It is also clear that the Tribunal addressed the issue of whether it would be reasonable for the applicant to relocate, including the issues of his safety and security.
The logic of the Tribunal’s findings in this regard, when taken as a totality, in my view, preclude the necessity (in the absence of any specific claim in this regard before the Tribunal) to ask the question that the applicant now says that the Tribunal should have asked. That is, whether the applicant would have repeated his behaviour in reporting the jihadist leader to the authorities, given how strongly he felt about the death of his son and the treatment of other young men by the jihadists, and that he would still seek justice for these people.

The Tribunal’s findings, when looked at in total, preclude the need for any such further consideration on its part. The Tribunal found, for the reasons it gave, that it was highly unlikely that the applicant would repeat this behaviour in reporting the jihadist leader, or that he would complain about the threats made to him (even though he had not done so in the past). This needs to be seen also in the context of its findings that the influence of the jihadists was confined to one province, that there were serious charges pending against the jihadist leader, and that there was not a real chance that they would seek to pursue a person such as the applicant outside their sphere of influence, a person who was, after all, “of little importance” to them. The Tribunal noted that he had lived in Karachi, without contact by any of the jihadist groups, and in what had been put to it, the Tribunal saw it not as being farfetched that the applicant would not be of “sufficient interest” to the jihadists to locate and pursue the applicant in Karachi or some other part of Pakistan.
In any event, in the circumstances of these findings, even if the applicant were to do what the Tribunal said was highly unlikely, that is, take reporting action against the jihadists, the logic of the combination of the Tribunal’s findings indicates that the applicant could continue to live safely outside of his home province in this respect without the need to compromise his beliefs. Simply the Tribunal’s analysis in this regard did not need to go any further.
In light of the above, it is in my view, not necessary to read the Tribunal’s decision beneficially, as submitted by Mr Izzo. All of the Tribunal’s findings in relation to the issue of relocation are plain. Each supports the Tribunal’s conclusion that the applicant could safely relocate, and that it would be reasonable to relocate, away from his home province to avoid harm from the jihadists.
It must also be emphasised that the question that Mr Karp presses should have been asked by the Tribunal does not arise from any specific claim made by the applicant, but rather requires the Court to make assumptions about what the applicant may or may not do if he were to relocate. The transcript of the Tribunal’s hearing reveals that at no point did the applicant expressly state that he would continue to press his complaint against the jihadist leader. His concern was that, having already made the complaint, he would be pursued by the jihadists anywhere and everywhere in Pakistan. The applicant pressed this issue by saying (see for example T 27.3) that the jihadists had large numbers of followers everywhere, presumably in Pakistan, and would not leave him alone. The focus was on the consequences for what he had already done.
The applicant was represented by the Legal Aid Commission NSW, before the Tribunal (who continues to represent the applicant now), and a lawyer from the Commission was present during the hearing. From his proper interventions during the course of the hearing, and from the nature of the matters posed during the course of the hearing, it is clear that this lawyer revealed experience in matters of this type. Yet when the opportunity was presented, no submission was made (nor evidence given) directing the Tribunal to the question which it is now said should have been considered. At a number of points during the discussion about relocation, the Tribunal asked the applicant if there was “anything else” (at T 25.8, T 26.3, T 27.4). What must be emphasised is that the applicant, with his adviser present, had every opportunity to raise the question which Mr Karp now says should have been raised by the Tribunal. He did not.
Further, in this regard, I note that the applicant’s adviser emphasised to the Tribunal that the applicant had made “the security issue ... very clear” (T 27.4). The “security issue,” which the applicant had made clear, on any plain reading of the transcript of the hearing before the Tribunal, was that he had made a complaint about the jihadist leader, had been subjected to threats and harm directed towards him in his home province, and that he was unable, amongst other things, to relocate away from his home province in safety because the jihadist reach extended everywhere in Pakistan. It was this issue that was put to the Tribunal and it was this issue to which the Tribunal properly directed its consideration.
It should also be noted that in relation to Karachi, the applicant never claimed to fear harm because of sectarian violence and religious extremism. His claims to fear harm derived from his action in reporting the jihadist leader to police in his home province. Whatever else the applicant’s claims to fear harm clearly did not rise above this essential central point. It was this point that the Tribunal addressed in its consideration of the issue of relocation. Although, the Tribunal appears to have gone further, and considered this general situation of violence in Karachi, but nonetheless found that despite this situation, the applicant could safely and reasonably relocate elsewhere in Pakistan, away from his home province and away from Karachi.
The Tribunal asked the question in such a manner (albeit awkwardly expressed, initially) that was at the heart of what the High Court said in SZATV. That is, that an applicant should not be expected to have to modify their behaviour in order for them to be able to reasonably relocate away from their home area, where they would be likely to face persecution including persecution for reason of an imputed political opinion. On what the applicant had put to the Tribunal in this regard, for the reasons that it gave and which were open to it on the material before it, the Tribunal comprehensively did answer this question. For the reasons set out above I cannot see that the Tribunal’s analysis was deficient in the way asserted by the applicant now. I cannot discern jurisdictional error as it is said to arise in this ground.

Conclusion

With the benefit of legal advice, the applicant has put before the Court two grounds asserting jurisdictional error on the part of the Tribunal which have not been made out. This application should therefore be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 3 March 2008