SZNNV v Minister for Immigration - [2010] FMCA 915

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNV v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 915

MIGRATION – Application to review decision of Refugee Review Tribunal – application for an extension of time under s.477 of the Migration Act – whether Tribunal failed to consider the applicant’s case or denied the applicant procedural fairness in a manner constituting jurisdictional error.

Migration Act 1958 (Cth), ss.422, 425, 476A, 477

Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541
Yu v Minister for Immigration and Citizenship and Another (2009) 236 FLR 251; [2009] FMCA 1161

Applicant:

SZNNV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 723 of 2010

Judgment of:

Barnes FM

Hearing date:

20 October 2010

Delivered at:

Sydney

Delivered on:

25 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr Nair

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The time for making the application provided for by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 30 March 2010.
The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 723 of 2010

SZNNV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Extension of time

By application filed on 30 March 2010 the applicant seeks review of a decision of the Refugee Review Tribunal dated 5 February 2010 affirming a decision of the delegate of the first respondent not to grant him a protection visa. Under s.477(1) of the Migration Act 1958 (Cth) (the Act) such an application must be made to the court within 35 days of the date of the decision, although the court may by order extend that 35 day period as it considers appropriate if “an application for that order has been made in writing to the [court] specifying why the applicant considers that it is necessary in the interests of the administration of justice to make [such an] order” and the court “is satisfied that it is [so] necessary in the interests of the administration of justice”.
This application was filed outside the period of 35 days provided for in s.477 of the Act. The applicant did not apply for an extension of time under s.477 of the Act in the application or in an amended application filed on 21 July 2010. When this was brought to the attention of counsel for the applicant he sought leave to file a further amended application in court applying for an extension of time and setting out the grounds on which the applicant sought such an extension. The solicitor for the first respondent did not oppose such leave being granted. With leave, the applicant filed a further amended application in court in which he sought an extension of time on the basis that the “delay [wa]s small”, there was “no prejudice to the respondent” and the “merits warrant[ed] the extension of time being granted”.
It is necessary to have regard to all the circumstances of the case in considering an application for an extension of time (see SZNZU v Minister for Immigration & Anor [2010] FMCA 197). In SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], Nicholls FM summarised relevant factors which may be taken into account as part of all the circumstances when considering whether it is in the interests of the administration of justice to grant an extension of time, including the extent and the reason for delay; whether there is any merit in the application; whether there is any prejudice to the respondent; the impact on the applicant; the interests of the public at large; and the court’s discretion itself.
The delay in this case is short. The first respondent did not take issue with the delay, notwithstanding the absence of any evidence in explanation.
The solicitor for the first respondent also conceded that as the first respondent had filed submissions in relation to the substance of the case and he was ready to argue it there was no real disadvantage from any grant of an extension of time.
However, the first respondent contended that the court should not grant an extension of time because the application did not raise any arguable issue. It was submitted that the application lacked any merit and hence that the court should refuse the application for an extension of time, notwithstanding that such an approach would mean that the applicant would have no right to appeal to the Federal Court from the decision of this court (see Yu v Minister for Immigration and Citizenship and Another (2009) 236 FLR 251; [2009] FMCA 1161 and s.476A(3)(a) of the Act).
The applicant contended that an extension of time should be granted on the basis that the delay was short and that there was an arguable case for the relief claimed.
In VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541, Heerey J suggested that the longer the unexplained delay, the stronger the argument on the merits would need to be to grant an extension of time. The reverse should apply if the delay is not excessive.
As discussed below, the grounds relied on by the applicant are not made out. However it cannot be said that they are not arguable and no issue is taken with the delay in this case. The applicant is represented and the grounds are particularised. I have borne in mind that the case was argued completely before me. The extension of time was not determined as a preliminary issue. This is not a case in which the interests of the public and the avoidance of delay and protraction of legal proceedings is of significance. In my view, bearing in mind that there would be no possibility of access to the Federal Court’s appellate jurisdiction were an extension of time not to be granted (see s.476A(3)(a) of the Act) these are circumstances in which it is preferable to grant an extension of time and dismiss an application on its merits. While I am satisfied that it is in the interests of the administration of justice to grant an extension of time under s.477 of the Act up to and including the date on which the application was made, for the reasons given below the application for review should be dismissed.

Background

The applicant, a citizen of Pakistan, arrived in Australia in August 2008. He applied for a protection visa in September 2008. In connection with his protection visa application he provided a statement in support of his claims. He also submitted a number of documents to the Department and attended a Departmental interview.
The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing on 9 March 2009. The Tribunal as originally constituted affirmed the delegate’s decision on 11 March 2009. By consent, the decision of the Tribunal was quashed by orders made in this court on 2 October 2009. The matter was remitted to the Tribunal for reconsideration.
The applicant attended a further hearing before a differently constituted Tribunal on 15 January 2010. The Tribunal affirmed the decision of the delegate by decision dated 5 February 2010. It is that decision that is the subject of these proceedings.

Tribunal Decision

In its reasons for decision the Tribunal referred to the applicant’s claims made in connection with his protection visa application, the supporting documents and what occurred at the Departmental interview and the two Tribunal hearings, as well as other documents submitted to the Tribunal as reconstituted and independent country information.
It summarised the applicant’s claims as a claim that “members of the Pakistan People’s Party - PPP wish[ed] to harm him because of his membership of the rival Pakistan Muslim League (Qaid-e-Azam) -PML(Q)” and a claim “to fear harm through terrorist incidents in Pakistan”.
The Tribunal found however that it was “unable to be satisfied as to the credibility of important aspects of the Applicant’s account of his experiences in Pakistan on which his claims to fear harm [we]re based”.
First, the Tribunal addressed the applicant’s claims that he had been involved with the PML(Q) as an active supporter or member since 1996. It observed that there was an “obvious inconsistency” between the applicant’s claims at the second Tribunal hearing that he was an active supporter from 1996 and that his party membership dated from 1999, and independent country information indicating that the PML(Q) was not founded until 2001. However the Tribunal accepted that the PML(Q) “came into being as a result of a split within the PML, and that many of its members had previously belonged to the PML”. On this basis it accepted that the applicant’s references to having been a member of the PML(Q) before 2001 “might be no more than a shorthand way of describing the political entity to which he claims to have once owed allegiance”. The Tribunal did not place any weight on this inconsistency.
However the Tribunal found that the “Applicant’s lack of knowledge about other aspects of the PML(Q) and its history” was “[o]f more concern”. It referred in particular to his inability to identity the PML figures who “brought about the split in 2001”, in response to questioning at the second Tribunal hearing and to his “obvious difficulty in recalling [the meaning of the] ‘Q’ in the acronym of the Party’s name” as well as his lack of knowledge that “critics of the Party suggest[ed] it [stood] for ‘Qainchi’, or ‘scissors’ in Urdu”. It also had regard to the fact that, “[d]espite [the applicant’s] claim to have been actively involved on behalf of the Party in the most recent national elections in Pakistan, he appeared unsure as to whether [the elections] were held in 2007 or 2008”. It also found that “[h]is responses to other questions about the Party were notably vague and uninformative”. The Tribunal found these responses gave “little impression of being based in the personal experience of someone who was a committed Party activist and/or member over a period of some twelve years” as the applicant claimed to be.
The Tribunal found that “[t]hese aspects of the Applicant’s evidence raise[d] doubt as to whether he was ever formally a member of either the PML or the PML(Q)”. It “considered whether an explanation for the gaps in [the applicant’s] knowledge might lie in his claim that the Party branch of which he was a member was only small”, but noted that “the branch [wa]s said to have been located in Lahore, …rather than in [a] rural village”, and that the applicant was a “university graduate who was employed by a multinational company” and “not an uneducated or unsophisticated person”.
The Tribunal accepted that the applicant had claimed “not to have been a member of the executive structure of the [Party] branch but only a worker, taking instructions from leaders, and that this [may] have placed limits on his knowledge of the Party”. However it also had regard to the fact that he claimed to have been “well-known in his local area as a Party member and to have been involved in such tasks as calling meetings and providing advice”. Further, while the applicant “claim[ed] to have lived in Islamabad for about eighteen months before he left Pakistan [and this] might [have been] expected to limit his contact with the Party branch in Lahore and possibly, the scope of his knowledge of developments in the Party…his evidence…was that he [had] travelled regularly back to Lahore from Islamabad and that it was his practice to attend the Party branch office during these visits”. As the Tribunal pointed out, “[i]t was in this way, [that] he claimed, [to have] been directly involved in campaigning for the 2008 election”.
The Tribunal concluded on this basis that while it was “prepared to give [the applicant] the benefit of the doubt by accepting that he was …a member of the PML(Q) [or the PML] from 1999 and that he may have supported the Party from 1996”, it was “not satisfied that [the applicant’s] contribution to the Party was ever at a level higher than that of general administrative support or that he built a significant political profile for himself at any time.” It noted that the applicant’s “contribution would have been further constrained …by the fact that he was living in Islamabad” for the 18 months before he left Pakistan, (notwithstanding his claims that he regularly returned to Lahore), and concluded “I am not satisfied that any of the information before the Tribunal supports his claim that he was well-known in his local area as a PML(Q) supporter”.
In this context the Tribunal “considered the supporting letter said to have been written on the letterhead of the PML(Q)”. It had regard to features of the document it found unusual, such as the absence of a lack of date or any information as to the writer’s position in the Party and the fact that the applicant did not appear to know the name of the writer. It also had regard to the fact that the letter seemed to suggest that the applicant was still a Party member notwithstanding that he claimed he had left the Party in 2008, as well as to independent information about the ready availability of forged or fraudulent documents in Pakistan. The Tribunal was not satisfied that any evidentiary weight could be placed on this letter.
The Tribunal then considered the applicant’s “claims to have suffered harm in a number of incidents when he was allegedly attacked by members of the PPP”. It noted that “[h]is account of these incidents ha[d] varied from time to time but [that] the essential elements [we]re that …[a]t some point (either in 2006 or shortly before the March 2008 election) PPP workers [had] invaded the PML(Q) branch office in Lahore and there was a violent confrontation in which the office was vandalised”; “[t]here was a further such incident in the office, also involving violence with PPP members”; “[a]t about this time [the applicant] was chased by three PPP members …in Lahore [who] tried to seize him” but he escaped and was “slightly injured when a shot …fired at him, graz[ed] his leg” (although there were some inconsistencies about when this occurred and what it involved); that “in early 2008 PPP members came to his house… stole his motorcycle and burned it in a park”; and that “after he had left Pakistan, armed people had come to the house where he had been living in Islamabad and asked for his whereabouts”.
The Tribunal referred to “independent country information [which] indicat[ed] that during the five years leading up to the March 2008 election the PML(Q) held power in the national Parliament and was closely aligned with the government, giving it support from the police”. It found that this suggested that “it would have been the PML(Q) rather than the PPP which would have been in a position to harass its opponents” and that these circumstances “provid[ed] no support for the implication evident in the Applicant’s account that PML(Q) was subjected to a pattern of harassment and persecution by the PPP”.
The Tribunal also expressed doubt “about the Applicant’s claim that he was targeted for harm by the PPP”, given his delay in leaving Pakistan until five weeks after his Australian visa was issued. It considered his explanation for this delay (that “he had to resign from his employment and that he needed to return office equipment”), but was “not satisfied that [his action was] consistent with the actions of a person who genuinely feared for his safety”.
In relation to the applicant’s claim about “having been shot at and slightly wounded … by a group of PPP members … in Lahore”, the Tribunal found that “his claim to have been admitted to hospital as a result [was] … inconsistent with [his] claim that the bullet simply grazed his leg” and left “a small burn mark”. It was not satisfied that his explanation (“that he was admitted to hospital but then released after the wound was dressed”) “satisfactorily explain[ed this] inconsistency”.
The Tribunal considered an undated medical certificate on which the signature was at variance with the name of the doctor on the letterhead. It found that “[t]his anomaly, together with the independent country information regarding document fraud in Pakistan, [led] to the conclusion that no significant evidentiary weight [could] be placed on the medical certificate”.
The Tribunal concluded that taking these aspects of the applicant’s evidence together, it was not satisfied that he “experience[ed] the various incidents of harm at the hands of PPP members” claimed. In particular, it was not satisfied “that he was ever attacked by the PPP while he was in the PML(Q) branch office in Lahore”, “beaten or shot at while in a bazaar or that PPP members came to his house, threatened his mother and removed and destroyed his motorcycle”.
The Tribunal stated that in reaching these conclusions it had “taken into account other documents submitted by the Applicant”, including a “photograph of a motorcycle …destroyed by fire” (on which it placed no evidentiary weight as there was “nothing to indicate that this motorcycle ever belonged to the Applicant or that [the] destruction correspond[ed] with the circumstances alleged”). It also addressed “three affidavits said to have been signed by the Applicant’s mother, his best friend and his brother”, which claimed “in nearly identical language, that the PPP [had] tried to kill” the applicant for his participation in the PML(Q) election campaign. It had regard to the absence of any mention in the protection visa application of a brother with the name of the person who had sworn an affidavit as the applicant’s brother and the absence of an explanation for this. The Tribunal was “unable to be satisfied that [the applicant did] in fact have a brother” bearing such a name. It found that this, together with independent country information about the availability of forged or fraudulent documents in Pakistan, cast “doubt on the authenticity of the affidavit said to have been sworn” by the applicant’s brother. As the affidavits were “largely identical in their wording”, it found that it was “unable to place any evidentiary weight on any of them”.
The Tribunal also considered an email message said to have been sent to the applicant the day before the second Tribunal hearing which referred to “visits to his home by strangers” asking about the applicant’s whereabouts and threatening him. While it accepted that the “suspiciously fortuitous timing of the email [may] be explained by [the advisor’s] suggestion to the Applicant that he should investigate whether there had been any recent incidents in Pakistan”, it found that as the writer was said to have gone to “considerable trouble and expense to obtain… [a] business visa [for the applicant] on the basis of information which …[could] be inferred to [be] false or misleading” and the “somewhat implausible claims made by the writer”, it was “not satisfied that any evidentiary weight [could] be placed on [this] email”.
The Tribunal then addressed the issue of future harm. On the information before it, the Tribunal concluded that it was “not satisfied that the Applicant [had] developed any significant political profile either in his local area in Lahore or elsewhere when he was living in Pakistan”. Nor was it satisfied “that he was ever subjected to harm at the hands of the PPP or anybody else for such a reason”. It found nothing in the information before it “to suggest that anything ha[d] happened since [the applicant] left Pakistan which might have created a new risk of harm for him, as a current or former member of the PML(Q)”. It had regard to the fact that “the PML(Q) [had] lost power in the 2008 elections and ha[d] declined in popularity”, but also to the fact that “it remain[ed] in existence as an important opposition party”. In light of independent country information, while accepting that there had been “isolated reports of harassment of members of the Party’s militia in Punjab and of a small number of its leaders”, the Tribunal was “not satisfied that there [wa]s anything to indicate that members of the Party ha[d] suffered systematic harassment, targeting or discrimination on the basis of their Party affiliation”.

The Tribunal had regard to the applicant’s evidence that he was “no longer a member of the PML(Q) having left the Party at some point in 2008, before he arrived in Australia”, because “he feared harm” and “because he had become disillusioned with the Party’s policies and actions” (albeit that this differed from an earlier explanation he had provided). The Tribunal also noted that the applicant had “suggested in the first hearing that he preferred the PML(N) but had joined the PML(Q) because the PML(N)’s leadership was out of the country at the time”. The Tribunal found these factors led to the “conclusion that [the applicant] no longer ha[d] a political opinion in favour of the PML(Q)”. It was “not satisfied that he was ever subjected to violence by the PPP” and did “not accept that he was forced to change his political opinion as a result of a fear of violence”. In light of this information the Tribunal was not satisfied there was a real chance that the applicant would suffer serious harm in Pakistan because of his political opinion, either actual or imputed, in favour of the PML(Q).
The Tribunal also addressed the applicant’s “claims to fear harm in Pakistan as a result of terrorism” and the reports he provided in relation to bombing, albeit he did “not claim ever to have suffered [such] harm… in the past”. The Tribunal “accept[ed] that terrorist violence [was] an increasingly serious problem in Pakistan” and that “innocent bystanders [may] be injured or possibly killed”, but did not accept that if this occurred such “harm could be said to have been directed specifically at [the applicant] for any reason or that it would be more than a random and indiscriminate event”. The Tribunal was “not satisfied that such harm would have a basis in the [Refugees] Convention or that it would amount to persecution”.
The Tribunal concluded that it was “not satisfied there [wa]s a real chance that the Applicant would suffer serious harm in Pakistan amounting to persecution because of his political opinion or through terrorist violence”. The Tribunal was “not satisfied that the Applicant ha[d] a well-founded fear of persecution for a Convention reason should he return to Pakistan now or in the reasonably foreseeable future”. It affirmed the decision of the delegate.

Whether Tribunal failed to consider the applicant’s claim

As indicated, in these proceedings the applicant relies on the grounds in the further amended application. Ground one is that the Tribunal “failed to consider the applicant’s case”. The particulars to this ground are as follows:
i) The Tribunal proceeded on the basis that the applicant’s fear of persecution was grounded in his “claim that he was well-known in his local area as a PML (Q) supporter” (CB 204 at [79], see also CB 207 at [91]). (emphasis added).
ii) This was not what they applicant claimed. Rather the applicant claimed that he was “famous”, that is to say well-known in his area (see CB 190). It is clear that the applicant explained to the Tribunal (and the Tribunal so understood that the “reason for this was that the applicant had completed university education in Lahore and many of the PML(Q) party members were uneducated. Consequently he was held in higher regard.” (CB 190). Also see CB 190 in regard to the statement by the Tribunal as to what the applicant said about the regard given to his advice, for example where to locate water pumps and similar matters.
iii) It is evident that the applicant did not claim a fear of persecution because of his high political profile. Instead he claimed he had a high profile (for reasons other than his political activities) and that he was also a PML(Q) supporter. His application for protection is grounded on the combination of these two factors.
Counsel for the applicant submitted that while the applicant’s claim was based on actual or imputed political opinion (in that he was a PML(Q) supporter), it was a claim that he would be persecuted not merely because he was such a supporter but also because he was well known. It was said to be implicit that the fact of his being well known would also make it well known that he was a PML(Q) supporter and itself encourage persecution.
It was contended however that the Tribunal had proceeded on a mistaken basis that the applicant claimed a fear of persecution on the basis that he was a PML(Q) supporter or was well known as a PML(Q) supporter. It was submitted that this was not a claim that the applicant made. Rather, it was submitted that what the applicant had actually said to the Tribunal as originally constituted was that he was “famous” in his local area. It was said to be clear that the reason the applicant was well known was independent from his activities with the PML(Q) but, as he explained to the Tribunal, was because he had completed university education in Lahore, many of the PML(Q) party members were uneducated and consequently he was held in high regard.
Reference was made to the fact that the applicant had told the Tribunal that his advice on matters such as where to locate water pumps and similar matters was well regarded. It was contended that it was clear that the applicant claimed to be well known and well regarded quite independently of his activities with the PML(Q). It was submitted that the applicant did not claim that he had a high profile as a PML(Q) supporter, but rather claimed that independently of this he was well known or had a high profile. It was said to be the combination of the fact that he was well known and the fact that he was a PML(Q) supporter which led to his fear of persecution, on the basis that those targeting PML(Q) supporters would target him, both because he was well known and also because he was a PML(Q) supporter, albeit without a high profile as such a supporter.
Counsel for the applicant contended that the Tribunal had misunderstood the applicant’s claim and based its decision on that misunderstanding, that it did not see that there were “two independent integers” of the claim and that the Tribunal did not “consider the claim in its proper two-faceted dimension”. Reference was made to Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 in which the Full Court of the Federal Court had said (at [49]) that the Tribunal must:
…deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.
It was submitted that the Tribunal’s failure “to deal with [the] claim raised by the [applicant or by the] evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, [could] constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby [amount to] jurisdictional error” (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [63]).
This ground is not made out. The material before the court does not establish that the applicant claimed that he was well known independently of any political involvement or that this meant the fact that he was a PML(Q) supporter would also be well known and hence would lead to him being targeted. Nor does the material before the court squarely raise such a claim such as to necessitate its consideration in the manner addressed in NABE.
There is nothing in the applicant’s protection visa application or in the other material before the Tribunal to raise a claim based in part on the applicant’s fame or the fact that he was well known in his area. Rather, his claim was that he campaigned for the PML(Q) following the November 2007 announcement of the elections, he established an office in his area to do so and in that context he experienced threats and harm from the PPP. The supporting documents the applicant submitted to the Department attested to his involvement in the Party. Indeed, the supporting affidavits referred to him being an active member of the PML(Q) and claimed that the opponent party, the PPP, had “tried to kill him because he …participated in [the] campaign of [the] PML(Q)’s candidate in elections”. Further, the Tribunal recorded that at the Departmental interview the applicant claimed that he had been an active member in the PML(Q) and that due to his involvement with the PML(Q) he had suffered repeated harassment by the rival party, the PPP.
The reference to the applicant being “famous” arose at the hearing of the Tribunal as originally constituted. The only evidence of what occurred in that hearing is the Tribunal’s reasons for decision. No issue is taken in these proceedings in relation to the accuracy of the Tribunal’s account of what occurred, albeit the decision contains what is described as a summary of the information provided by the applicant.
The Tribunal recorded that at that hearing the applicant told the Tribunal about his involvement in the PML(Q) in general terms. He told the Tribunal he joined the PML(Q) in 1999 or 2000. He “explained [that] he never had any designated role, or held any post within the PML(Q)”, although he continued to work for it. He claimed he “represented the PML(Q) in his local area” and assisted in general and local elections by attending his local office, particularly in the six to eight weeks immediately prior to the election, although for the 18 months before he came to Australia he had lived and worked in Islamabad and only returned to Lahore on weekends and for business, during which time he would attend the local PML(Q) office.
The first Tribunal’s account of what then occurred in the hearing, (adopted by the second Tribunal) describes the context in which the applicant claimed to be “famous” as follows:
As the Tribunal was uncertain of the applicant’s actual involvement in, and activities for, the PML(Q), it asked him what he actually did for the PML(Q). The applicant said he attended meetings of the PML(Q), home visits with PML(Q) members, PML(Q) rallys (sic), approximately twice per month. The Tribunal then asked him again to explain his role. The applicant eventually told the Tribunal he was ‘famous’ in his local area; by which the Tribunal understands he meant that he was well known.
The reason for this was that the applicant had completed university education in Lahore and many of the PML(Q) party members were uneducated. Consequently he was held in higher regard. The applicant also said at the PML(Q) meetings (usually attended by 8 – 15 persons, including some of the PML(Q) executive), important local issues such as roads, school building and health clinics were discussed. The Tribunal understands that government funds may have been made available to the applicant’s group and they may discuss how it could best be used. The applicant said his advice (ie where to locate water pumps and similar matters – though the applicant also agreed that persons with more relevant skills also assisted with this) was well regarded. At any rate, the applicant said this was why he was well known in his region in Lahore. The applicant later said he was part of an extended family in Lahore; which may also have been why he was well known; though no claim has been made as to the applicant’s family having any political affiliations or involvement. The applicant also said he worked in the local PML(Q) party office. However, when discussed at hearing, the Tribunal understands this particularly (if not solely) occurred in the 6 – 8 weeks prior to the aforementioned elections; and after the applicant had completed his daily work.
At hearing, the Tribunal put to the applicant that based on what he had said, the Tribunal may find he was a low profile member of the PML(Q); not having held any official or ‘designated’ positions in the PML(Q). That said, the Tribunal understands the applicant as claiming he was none-the-less (sic) active in the PML(Q) in Lahore City.
In other words, it was in the context of explaining his actual role in the PML(Q) that the applicant claimed to be “famous” and consequently held in higher regard in the party than others.
The Tribunal recorded that the applicant then recounted his claims about past events in Pakistan. The Tribunal raised with the applicant the possibility of relocation within Pakistan. In that context, he claimed Islamabad was a “small place”. He said that “political party members know each other in Islamabad” and that his “enemies” would be able to locate him. He disputed that he would not be of continuing interest to the PPP and claimed to fear “that he may be targeted by his enemies …in Lahore, irrespective of where he worked in Pakistan”. He referred to the possibility of civil war in Pakistan. After further discussion he agreed that his only opponent was the PPP. He believed he would not be safe in Pakistan while it was in power. At that point the Tribunal put to him that while there continued to be this violence in Pakistan it may not be satisfied that his involvement in the PML(Q) in Lahore was such that his opponents, the PPP, would even be interested in tracing him to Islamabad. The applicant was recorded as not agreeing with this suggestion.
Prior to the second Tribunal hearing, the applicant provided to the Tribunal a supporting email suggesting that strangers had inquired about his whereabouts.
The Tribunal also included in its reasons for decision a summary of what occurred at the second Tribunal hearing during which, when asked why he had left Pakistan to come to Australia, the applicant said that “his life had been in danger”, he “had been working for the PML(Q)” and again claimed that members of the PPP “would harm him …because it was a rival party”. When “[a]sked how he knew they would harm him he said they had come to his office on two occasions and things had happened” and that “[t]his was why he believed he had been targeted”. He also claimed to fear that he could be hurt in a bomb blast.
Relevantly, when asked about his involvement in the PML(Q), the applicant said he had been “an active member since, he thought, 1996”. He then said 1999 and confirmed that he “had never held any top level position in the party but he had been quite famous”. Again this claim was made in the context of explaining his involvement in the PML(Q). The Tribunal continued, “[a]sked where it was that he had been famous he said in [a named] area of Lahore. Asked if was still a Party member he said he had been in Australia for a year and had had no contact with the Party in that time.”He was then asked when he left the Party and why he had done so, about his activities as a party member and other issues. The Tribunal put to the applicant “that there [was] further independent country information indicating that, while political violence continue[d] in Pakistan, there [did] not seem to be anything to indicate that people [were] being targeted simply because they [were] members of the PML(Q)” which the applicant denied.
The Tribunal account of the hearing continued:
I put to him that the PML(Q) remains a large and important party in Pakistan and still has seats in the parliament. He said he had been attacked. There were fifty million people in Pakistan and the PPP had to single out a few people to target. They could not attack anyone and so targeted and killed only a few people who were their political enemies. I asked why, if he returned to Pakistan where he would not even be a member of the PML(Q), the PPP would target him. He said they turned against him because of his membership of the Party. Anyone could target him and his life would be in danger if he returned.
The applicant’s advisor was given the opportunity to make oral submissions to the Tribunal. She said nothing about any claim that the applicant was well known.
The Tribunal continued:
I put to the Applicant that, without having reached any conclusions about the information before the Tribunal, I believed there could be doubt about some of the claims he had made, in particular about whether he had ever been a member of the PML(Q) and whether he had ever suffered harm for such a reason. Even if I were to believe that he had been a member of the Party, his own evidence was that this was at no more than an administrative level and that he had ceased his Party membership at least eighteen months ago. In these circumstances I might conclude that he would not be at risk of harm from members of the PPP or anyone else, for political reasons, if he returned to Pakistan. As to his claim that there is no safety in Pakistan, a fear of generalised violence did have the discriminatory aspect necessary to found a fear of persecutory harm under the Convention.
Invited to comment on these points the Applicant said he did not have anything to add.
At the request of the advisor, the Tribunal allowed further written submissions, but no such written submissions were provided.
Insofar as the applicant takes issue with the fact that in its findings and reasons, in the face of such evidence, the “Tribunal proceeded on the basis that the applicant’s fear of persecution was grounded in his “claim that he was well-known in his local area as a PML(Q) supporter”… (emphasis added)”, as the first respondent submitted, it has not been established that the Tribunal misapprehended or did not deal with the applicant’s claims or claims arising “squarely” on the material before it (see NABE at [58]).
It has not been established and cannot be inferred on the material before the court that there was a separate integer of the applicant’s claims of a fear of persecution on the basis that he was famous or that his claim was that his fear was based on a combination of his fame as such and his involvement in the PML(Q). Rather, it is apparent, having regard to the whole of the material before the court, that the applicant claimed that he had a fear of persecution because he was a PML(Q) supporter. It was in the context of being asked by the first Tribunal what he actually did for the PML(Q) and to explain his role that the applicant said he attended meetings, home visits with members and rallies approximately twice a month and “eventually” told the Tribunal that he was “famous” in his local area, by which the Tribunal understood that he meant he was well known. In context, this was clearly a reference to a claim that his role in the Party was not determined simply by the level of office that he held, but rather that, unlike other members, he was an educated person and therefore he had a greater role and a greater respect at Party meetings.
In the absence of a transcript of the first Tribunal hearing, it is not apparent, and nor should an inference be drawn, that the applicant was making a claim that he had a high profile for reasons other than his political activities as well as a claim that he was also a PML(Q) supporter and that he had a fear of persecution on this basis. Rather, he was explaining what his involvement was in the Party, indicating, in effect, that his role in the Party was not determined simply by the level of office that he held. He was not claiming to fear persecution in part because he was university educated, or a member of an extended family in Lahore. What he was asserting was that he feared harm because he was a PML(Q) member and that he was an important member because, unlike others, he had a university education and that he had a greater role than would be suggested by the fact that he did not hold an official position in the party. His claims in that respect were all made in the context of an explanation of his role in the PML(Q). The evidence of what occurred at the first hearing is not such that it can be inferred that there was a claimed fear of persecution based in part on the fame of the applicant in his local area. Rather the applicant was addressing why he would be targeted by reason of his membership of the Party if he was not an office holder.

Consistent with this, at the second Tribunal hearing the applicant again stated, when asked about his involvement in the PML(Q), that he had never held any top-level position in the party but he had been quite famous. Again, it is not apparent that this was a claim that the applicant was famous apart from his involvement as a PML(Q) member, but rather that, as the Tribunal found, the applicant claimed that he was well known as a PML(Q) member, even though he did not hold a high-level position, as he had a greater influence than the absence of such a position would suggest. In other words, the applicant’s claims indicate that his being well known was linked to his claimed political work. The first Tribunal recorded that the applicant claimed to have been famous or well known in his local area due to his level of education compared with other PML(Q) party members and for the advice he would give at party meetings on issues such as where to locate water pumps. It was for this reason that he was well known in his region. Contrary to the applicant’s submissions, the applicant’s claim to notoriety was clearly said to be linked with his claimed involvement in the PML(Q) and attendance at PML(Q) party meetings, albeit he also stated he may have been well known because he was part of an extended family in Lahore.
The Tribunal considered the applicant’s claims to fear harm due to his political work and involvement with the PML(Q) on this basis. In its findings and reasons, the Tribunal specifically considered that the applicant did not claim to have been a member of the executive of his branch, but noted his claim that he was well known in his local area as a Party member and to have been involved in tasks such as calling meetings and providing advice. However the Tribunal did not accept that the applicant’s contribution to the Party was ever at a level higher than that of general administrative support or that he had built a significant political profile for himself at any time due to the nature of the work he claimed to have done for the party and having regard to his residence in Islamabad for the 18 months before he left Pakistan.
The applicant’s claim that he was well known in his local area as a PML(Q) supporter was addressed by the Tribunal. The Tribunal considered the claims raised by the applicant that he was at risk of harm as a PML(Q) party worker, a role for which he was well known. The Tribunal’s finding that it was not satisfied that any of the information before it supported the applicant’s claim that he was well known in his local area as a PML(Q) supporter, reflects the claim the applicant made to the Tribunal as recorded in the Tribunal reasons for decision. Its lack of satisfaction in relation to those claims was open to the Tribunal. It has not been established that the Tribunal failed to consider the applicant’s case. No jurisdictional error is established on the basis contended for by the applicant. Ground one is not made out.
Ground two is as follows.
The Tribunal denied the applicant procedural fairness in that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out an (sic) determinative issue arising in relation to the decision under review.
The particulars to this ground are as follows:
i) The applicant claimed he had a high profile. The Tribunal did not challenge this and it is clear that the Tribunal accepted this.
ii) The applicant did not claim a high political profile.
iii) The Tribunal found that his political activities were low-level.
iv) A central and determinative question was whether the applicant can be said to not have a well-founded fear of persecution for reason of political opinion when his political activities were of a low-level, and notwithstanding the applicant’s otherwise high profile.
v) The Tribunal did not identify to the applicant that this was an issue arising on the review.
The Tribunal was said to have failed to accord procedural fairness in that it did not give the applicant a sufficient opportunity to address what was said to be a determinative issue arising in relation to the decision under review.
Insofar as it was intended to assert a failure to accord procedural fairness in a broad sense, I note the operation of s.422B(1) of the Act (see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62). In fact it appears from the submissions for the applicant that what is contended is a breach of s.425 of the Act in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63.
There is no transcript of either Tribunal hearing before the court. The only evidence of what occurred in those hearings is the Tribunal’s account in its reasons for decision. That account does not establish a failure to comply with s.425 of the Act or a lack of procedural fairness.
As set out above, it has not been established and cannot be inferred from the Tribunal’s account of the hearing that the applicant claimed that he had a “high profile” as distinct from a “high political profile”, or that the Tribunal accepted that the applicant had such a “high profile”.
Also, as indicated, it is apparent from the Tribunal’s reasons for decision that at the first hearing the applicant’s claim to have been well known was made in response to a question about his role in the PML(Q) and was linked to his claimed political work. According to the Tribunal he claimed to fear harm due to the his political work with the PML(Q) and to have been “famous” or well known in his local area in Lahore due to his level of education compared with other PML(Q) members, his participation in PML(Q) meetings, the fact that he was part of an extended family and the fact that he worked in the local PML(Q) office. The applicant repeated his assertion that he was well known when the Tribunal as reconstituted asked him about his involvement in the PML(Q). The Tribunal decision record indicates that both before the first and second Tribunals, when he was questioned about his actual involvement with the PML(Q), the applicant asserted that he was well known in that context. As the first respondent submitted and contrary to the applicant’s contention, it cannot be inferred on the material before the court that the applicant’s claimed notoriety was not linked to his claimed involvement in the PML(Q) and political profile.
The premise upon which this ground is based (that the applicant claimed he had a high profile as such) is not made out.
The Tribunal questioned the applicant regarding his claim that he was well known in the context of his involvement with the PML(Q) and the work he claimed to have carried out for the party, as well as about other issues regarding his membership and specific incidents he claimed had occurred. The Tribunal raised with the applicant whether members of the PML(Q) were targeted by virtue of their membership alone (which he seems to have asserted was the case). It also specifically put to him at the hearing not only the issues of whether he had ever been a member of the PML(Q), and whether he had suffered harm for such a reason, but also the relevance of the fact that even if it were to accept that he had been a member of the Party, on his own evidence this was at no more than at an administrative level and had ceased at least 18 months earlier. The Tribunal continued that it indicated:
In these circumstances I might conclude that he would not be at risk of harm from members of the PPP or anyone else, for political reasons, if he returned to Pakistan.
It is clear that the second Tribunal raised with the applicant its possible thinking and what its possible findings may be and invited him to comment or respond to those issues. In so doing, it raised with the applicant dispositive issues as required by s.425 of the Act. No jurisdictional error has been established on this basis.
As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 25 November 2010