SZOBC v Minister for Immigration
[2010] FMCA 131
•26 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOBC v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 131 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) in that it failed to put the applicant on notice of issues that did not arise from the delegate’s decision. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 425; 474; pt.8 div.2 |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 288 CLR 152 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 SZHBX v Minister for Immigration and citizenship [2007] FCA 1169 |
| Applicant: | SZOBC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2935 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 11 February 2010 |
| Date of Last Submission: | 11 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Blount |
| Counsel for the Respondent: | Mr J. Mitchell |
| Solicitors for the Respondent: | Ms B. Griffin, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2935 of 2009
| SZOBC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 November 2009 and handed down the same day.
The applicant claims to be a citizen of the Pakistan, of Muslim faith and to have previously been a professional squash player (“the Applicant”).
The Applicant arrived in Australia on 22 November 2006 on a Business (Short Stay) 456 visa. On 20 February 2007 the Applicant returned to Pakistan. On 4 July 2007 the Applicant arrived in Australia for the second time having departed legally from Islamabad airport on a passport issued in his own name.
In July 2009 the Applicant was put in immigration detention.
On 20 July 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 10 August 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 12 August 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 5 November 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 27 November 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by members of the Taliban.
The Applicant claimed that, following leaving school, he trained as a squash player. He claimed that, in May 2007, he was approached at a Mosque in his family’s village in Kuzadundy by three men he believed to be members of the Taliban and who asked him to join them.
He claimed that, in June 2007, he saw the same three men at a Mosque in Islamabad and they again approached him and asked him to join them, this time threatening to “do bad things”, kill or torture the Applicant if he did not comply. The Applicant claimed the men stated they could find him anywhere in Pakistan.
The Applicant claimed that he decided to leave Pakistan because of the threats and did so a few days later on 2 or 3 July 2007.
The Applicant claimed he travelled to Australia for the first time in November 2006 to play squash and train and stayed until February 2007.
The Applicant claimed that, when he arrived on 2 or 3 July 2007, he held a visa valid for three months and he did not intend to stay. The Applicant claimed that one or two weeks after arriving, he heard news that Taliban terrorist activity was increasing in Pakistan and thought then that it was not safe to return.
The Applicant claimed that he lost his bag containing his passport and identification and was told by “different people” that he could not apply for a visa without this documentation and he would be detained or deported to Pakistan. He claimed that out of fear he stayed inside and watched television. He claimed the situation in Pakistan deteriorated further and, in 2009, Taliban attacks increased in his family’s village and his uncle’s house was hit by a rocket, killing him.
The Applicant claimed that the Taliban would target him because he is a good Muslim and that if he does not join them he fears they will harm him and “destroy [his] life”. He claimed that the authorities cannot protect ordinary people such as him against the Taliban.
The Delegate’s decision
On 4 August 2009, the Applicant attended an interview with the Delegate.
On 10 August 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 12 August 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 August 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 21 October 2009 to give oral evidence and present arguments.
On 21 October 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the application for review, the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“The Tribunal found that the Applicant’s claims were unsupported by any corroborative material, aside from press clippings, notwithstanding that he had been in Australia for 27 months. It found that his claims to have received threats from the Taliban were extremely general and vague. It did not accept that the alleged threat made in an Islamabad Mosque occurred because the Applicant contradicted it at the hearing by claiming that it occurred on his way to playing squash. The Tribunal found that if the incident had occurred it would have been explained clearly in both his protection visa application and at the hearing. Further, if he held fears by reason of those events he would have taken immediate action to file an application for a protection visa upon arrival in Australia. The Tribunal was not satisfied that the Applicant had a sporting profile that would result in him being targeted by the Taliban or other Islamic fundamentalists wherever he went in Pakistan. It was not satisfied that a young male in Pakistan was at risk of persecution by the Taliban or that there was a total breakdown in effective state protection. Rather the Pakistani government was willing to ensure that effective state protection can be provided.
Accordingly, the Tribunal affirmed the decision under review.”
The proceeding before this Court
The Applicant was represent by Mr Blount, of counsel, at the hearing before this Court,
At the commencement of the hearing, by consent, leave was granted to the Applicant to file in Court and rely upon an amended application. During the hearing counsel for the Applicant withdrew reliance on Ground 2 of the amended application and confirmed that the Applicant only relied on Ground 1 of the application. Ground 1 is as follows:
“1. The second respondent denied the applicant procedural fairness.
Particulars
The tribunal made determinations against the applicant on matters that were accepted by the Minister’s Delegate without disclosing to the applicant that the matters were in issue before the tribunal. As consequence, the applicant was denied an opportunity to address the tribunal’s concerns on these issues.”
The Tribunal rejected the Applicant’s claims of ever having been threatened by Taliban members or others for any Convention related reason. The Tribunal found the Applicant had embellished his claims in order to enhance his claim for a protection visa and found that he was not a credible witness.
Counsel for the Applicant submitted that the Tribunal failed to put the Applicant on notice of issues that arose from the Delegate’s decision in circumstances where the Tribunal made adverse findings different to those before the Delegate. In support, counsel for the Applicant referred to the principles espoused in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 288 CLR 152 (“SZBEL”) at 163 and [29] that “any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made” requires the decision maker to identify that issue. Counsel for the Applicant also referred to the Minister in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 where the full court of the Federal Court of Australia stated as follows:
“The Tribunal is not to adopt the position of a contradictor. However, where 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 that applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted (SZBEL’s Case at [47]). Nevertheless, procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. To adopt such a course could run a serious risk of conveying an impression of prejudgment (SZBEL’s Case at [48]).”
Counsel for the Applicant submitted that, before making a finding different to that of the Delegate, who accepted the Applicant’s claims of the second encounter, the Tribunal was obliged to put that inconsistency to the Applicant in accordance with its obligations under s.425 of the Act, once it became an issue arising in relation to the decision under review. Section 425 of the Act requires the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
The 2 issues which the Applicant contended should have been raised with the Applicant at the Tribunal hearing are identified and discussed below.
1. Applicant’s new evidence to Tribunal about encounter with Taliban members on his way to play squash
At the heart of the Applicant’s submissions is a contention that the Tribunal failed to give notice to the Applicant of the issue relating to the Applicant’s credibility in respect of his claim to have been threatened by Taliban members on the second occasion at the Mosque in Islamabad. Counsel for the Applicant contended that the Delegate had accepted that the Applicant encountered Taliban members on two occasions. However, because the Applicant told the Delegate that in his view the meeting was coincidental, the Delegate was not satisfied that the Taliban members were following him or targeting him.
Mr Blount submitted that the reasons the Tribunal rejected altogether the Applicant’s claims of ever having been approached by Taliban members was because the Applicant told the Tribunal that on the second occasion he had encountered Taliban members at a sports stadium where he was playing squash, rather than at the Mosque in Islamabad. Mr Blount submitted that a fair reading of the transcript of the Tribunal hearing makes clear that the Tribunal’s concern about the inconsistent evidence given by the Applicant as to where the second meeting with the Taliban took place was an issue that should have been put to the Applicant by the Tribunal in light of the adverse finding that the Tribunal made in respect of that evidence.
In considering the applicant’s contention on this issue, it is necessary to have some close regard to the following:
a)the context of the Applicant’s claims;
b)the relevant findings of the Delegate;
c)exchanges between the Tribunal member and the Applicant; and
d)the relevant findings of the Tribunal.
a) The Applicant’s claims
In a statement in support of his protection visa application, in relation to the second encounter with Taliban members, the Applicant stated as follows:
“One day at the end of June 2007 when I went to the Mosque in Islamabad I saw the three Taliban that I had seen one month before in the Mosque at my family’s village. They were staring at me, then they came to me and said: “You are the person we met in Swat”. I said that I did not know and then one of them said: “Yes you are. Why don’t you join us? If you don’t join us we will do bad things to you, maybe we will kill you or torture you very badly, we have a big network, so we can find you anywhere in Pakistan. We don’t want any sports here, or people cutting their beard, or people watching movies, we don’t want people to listen to what overseas people said, we just want them to listen and do what we say”.”
b) The relevant findings of the Delegate
In respect of those claims, the Delegate stated as follows:
“I accept that he was approached on two occasions by men who belong to the Taliban, however by his own admission it was coincidental that the same men he first met in the Swat Valley saw him again in Islamabad and this indicates that they were not following him or specifically targeting him. The incident in Islamabad is the only one that he sighted as evidence of his claimed fear of returning to Pakistan. I consider that this seriously undermines his claimed fear of Convention-related persecution.”
It is not clear from the Delegate’s words whether, in not being satisfied that Taliban members were “specifically targeting” the Applicant, he was intending to refer to the Applicant’s claim of threats of harm from Taliban members on the second encounter, or whether the Delegate merely made that statement having in mind the Applicant’s specific claims of alleged threats. Counsel for the Applicant submitted that implicit in the Delegate’s finding is an inference that any encounter with Taliban members is likely to be unpleasant and that no good could come of such a meeting.
Counsel for the First Respondent submitted that a fair reading of the Delegate’s reasons, in light of the Applicant’s written claims, suggests more probably than not that the Delegate was intending to refer to the Applicant’s claims of specific threats made against him by Taliban members on the second encounter.
In my view, a fair reading of the Delegate’s reasons makes clear that, whilst the Delegate was prepared to accept the Applicant may have been approached by Taliban members on two occasions, it did not accept that there were any threats of the nature alleged by the Applicant seeking to target him. The Delegate’s decision record made clear that it did not accept that the Applicant’s encounter with Taliban members in Islamabad was because he was being targeted. The Applicant himself stated that the meeting was coincidental. Having rejected the Applicant’s claims of targeted specific threats being made against him at the encounter in Islamabad, the Delegate was not satisfied that the Applicant had a well-founded fear of Convention related persecution.
c) Exchanges between the Tribunal and the Applicant
When the incident was explored by the Tribunal at the hearing, the following exchange took place between the Tribunal member and the Applicant:
“Member: From what you’ve just said [and] from your protection visa application, I’m having difficulty understanding why you are at any real risk from Taliban or other such groups or indeed anyone else.
Member: I am having difficulty understanding why you are particularly at risk.
Applicant: They were in control in the village. When I was there I was going to the Mosque. I was praying [and] they are saying you will have to join us.
Applicant: And then I went to Rawalpindi [and] informed my cousin about this – uncle sorry. And then one day I was going to play squash [and] I saw those people I met in the village [and] they said yes you are the one that we have met you in the village.
Applicant: I met them in Pakistan – sorry Islamabad – [and] then they said to me you cannot hide from us. If you are in Pakistan we can easily find you any place in Pakistan.
Applicant: And then I went home [and] I talk to my father about this danger [and] then after a while I decided to come to Australia.
Member: How could the Taliban track you down anywhere in Pakistan?
Applicant: They are present everywhere. They said to me we are everywhere in Pakistan [and] you can see their presence everywhere in Pakistan [and] they said to me that I can find you easily. It is not difficult for us to find people.
Member: How could they track you down? I mean I don’t understand how it would be possible to track down you with no particular profile wherever you went in Pakistan.
Applicant: The reason that they can find me easily even when I was playing before playing in Islamabad they went to that stadium [and] they were looking for me.
Member: Went to where? Excuse me
Applicant: To the stadium in Islamabad where I was playing there. And so they knew my name [and] I was playing squash. My name comes in the newspapers, my picture comes in the newspaper [and] they can easily find me because I am a sports person. It is not difficult for the Taliban to find me. They know my name. They know my appearance. My picture. It is easily find me everywhere.
…
Member: Pakistan’s population is now over 176 million people, 97% being Muslim
Member: many of these are single young men like yourself.
Member: You don’t claim you had a political profile of any sort were it an Imam or a political profile or even were a celebrated national squash player.
Member: I must put to you that from the claims I’m having difficulty you make in a country the size of Pakistan as a practising Muslim like the vast majority of other people you’d be singled out for any reason let alone for a convention related reason.
Member: Do you understand what I’ve just said [and] would you like to comment?
Applicant: Yes I agree the population high in Pakistan [and] the majority is Muslims but once the Taliban wants someone or chose to do something for them [and] that person deny then the life of that person would be in danger. Now yesterday even they went to the University the National Islamic Faculty [and] suicide they kill a lot of people. They make a decision and then they can do whatever they want. And the reason for me is because they wanted me to join them [and] I refused so that was the reason for me not to be safe there.” (emphasis added)
d) The relevant findings of the Tribunal
In its decision record the Tribunal said as follows:
“Moreover, the applicant’s claims about the threats he received are extremely general and vague. He does not identify the people he claims made the threats, or state in his protection visa application or at the hearing that he took these threats so seriously that he either went to the police or went into hiding. On the contrary, the applicant makes it clear that, in response to these remarks, he simply told his father, returned to Rawalpindi, and thought that everything would be alright. That said, the applicant claims that what really scared him was when he ran into the same three people in June 2007 when he went to the Mosque in Islamabad and they accused him of being the same person they had warned in Swat. Again, however, the applicant, does not claim that he could identify the three people. Nor does he claim that these people had followed him or particularly targeted him, but rather seems to suggest that it was a random encounter. And in regard to his central claim that the second encounter occurred at the Mosque, the applicant contradicted this claim at the hearing when he claims that this incident occurred when he was on his way to play squash. The Tribunal is satisfied that if this incident had occurred as he claims, then he would have clearly stated the same explanation in both his protection visa application and at the hearing. Accordingly, the Tribunal has not been able to satisfy itself that the applicant has indeed been threatened on the second occasion in Islamabad as he claims, and the Tribunal does not accept this claim. It follows that the Tribunal finds this also goes to the matter of his truthfulness, and finds he is not a credible witness. And despite previously having plenty of opportunities to lodge new claims both in his application for review and at the beginning of the hearing, the applicant made a further claim during the hearing: namely, that when he was playing squash in Islamabad, the Taliban went to the stadium looking for him as they knew his name as his photograph had appeared in a newspaper as a sportsperson, so it would be easy for them to track him down.” (emphasis added)
Counsel for the Applicant submitted that the Tribunal rejected the Applicant’s claims of encounters with Taliban members because the Applicant contradicted the claim that he made to the Delegate about the second encounter at the Mosque in Islamabad; whereas, the Applicant told the Tribunal that the second encounter occurred when he was on his way to play squash in a stadium in Islamabad. Counsel for the Applicant submitted that the Tribunal found that the Applicant’s claim of an encounter, when he was playing squash in Islamabad, was a third encounter. However, I do not accept that a fair reading of the transcript and the Tribunal’s decision record suggests such a finding.
A fair reading of the transcript makes clear that the Applicant told the Tribunal that his first encounter with Taliban members was in his village and that the second occasion was when he was going to play squash. The Applicant said that it was following this second encounter that he went home and talked to his father about the danger and then decided to come to Australia. In response to the Tribunal member’s question “How could the Taliban track you down anywhere in Pakistan?”, the Applicant gave a general response that they were everywhere and it was not difficult to find people. The Tribunal member then explored the matter further with the Applicant by putting to him that the member was having difficulty understanding how they could track him down wherever he went in Pakistan when he had no particular profile. It was in seeking to satisfy that concern expressed by the Tribunal, that the Applicant for the first time elaborated on the second encounter as having taken place on his way to a stadium where he was playing squash and that they were able to find him because his picture was in the newspaper and they know his name and his appearance.
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood that the Applicant no longer maintained the claim he made before the Delegate that he had a second encounter with Taliban members at a Mosque in Islamabad. Rather, before the Tribunal, the Applicant recast this claim to have been approached by Taliban members at a stadium in Islamabad where the Applicant was playing squash, and that the Taliban members had been able to track him down to the stadium because his name and photograph had appeared in a newspaper as a sportsman. The Tribunal found that, had this second encounter occurred as the Applicant now claimed, the Applicant would have given the same explanation to the Delegate. In the circumstances, the Tribunal was not satisfied that the Applicant had been threatened on the second occasion in Islamabad, or any occasion for that matter.
Mr Blount submitted that, once the Applicant gave his elaborated evidence in relation to his claim of having been threatened on the second occasion by Taliban members on his way to play squash, it became an issue in relation to the decision under review because the Tribunal departed from the acceptance by the Delegate that such an encounter took place.
Counsel for the First Respondent submitted that the Applicant’s elaborated evidence on the second encounter left open to the Tribunal its entitlement to evaluate that evidence. Counsel for the First Respondent submitted that the Tribunal was not obliged to provide a running commentary to the Applicant on its evaluation of his evidence in circumstances where it should have been obvious to the Applicant that his claims in relation to the second encounter were an issue arising in relation to the decision under review.
I accept the submissions of the First Respondent. In my view, a fair reading of the transcript makes clear that the Tribunal member understood and accurately reflected the Applicant’s evidence in its decision record. The context of the discussion of the second encounter was plainly in light of the Tribunal putting to the Applicant its concerns about how and why he may be tracked by the Taliban in Pakistan.
The Applicant’s evidence in respect of the second encounter was clearly inconsistent with his bare claim before the Delegate that he had a second encounter with the Taliban in a Mosque in Islamabad, during which various threats were made to him. In the circumstances, it was open to the Tribunal member to find that the Applicant’s evidence before it was inconsistent with that claim. It was not obliged to put those inconsistencies to the Applicant or to provide a commentary on its thought processes in respect of the Applicant’s evidence generally (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18]).
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
2. Delegate’s acceptance that Taliban placed pressure on young men to join their movement
Counsel for the Applicant also submitted that the Delegate accepted the Applicant’s claims of the existence of the Taliban in Pakistan and the pressure they place on young men to join their movement. In light of that finding, Mr Blount contended that the Tribunal was not entitled to disregard that finding by the Delegate without putting to the Applicant that it intended to do so. Counsel for the Applicant submitted that s.425 of the Act required the Tribunal to put to the Applicant that the existence of the Taliban in Pakistan and the pressure they place on young men to join their movement was an issue for the Tribunal in circumstances where it had been otherwise accepted by the Delegate.
Counsel for the Applicant conceded that the Tribunal’s concerns about the Applicant’s claim of having been singled out as a practising Muslim for Convention related harm by the Taliban was a matter that was put to the Applicant by the Tribunal and that the Tribunal noted the Applicant’s response. That was the relevant claim by the Applicant. As stated above, the Tribunal’s concern about that claim was an issue squarely put by the Tribunal to the Applicant at the hearing and in a manner that would, or should, have put the Applicant on notice of that issue.
I accept the submission of counsel for the First Respondent that the Tribunal was not obliged to “prompt or stimulate further elaboration of the Applicant’s testimony in respect of that matter” (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909). Neither was the Tribunal obliged to inform the Applicant that, because the evidence on which he relied was different from his evidence to the Delegate, the Tribunal may make different factual findings (SZHBX v Minister for Immigration and citizenship [2007] FCA 1169 at [14]).
In the circumstances, I also accept the submission of counsel for the First Respondent that the Tribunal’s appraisals of the Applicant’s claims in this respect were natural and obvious and could not have surprised the Applicant because they were based on his own evidence. As stated above, the Applicant was given an opportunity to address the Tribunal’s concern about his claim that he was singled out as a practising Muslim for Convention related persecution, in circumstances where the Applicant himself did not claim to have a political profile of any sort or be a“celebrated national squash player”.
Further, the Applicant’s contention that the Tribunal departed from the Delegate’s acceptance that the Taliban in Pakistan pressured young men to join them, is misconceived for 2 reasons:
i)The Delegate referred to country information before it that the Taliban in Pakistan put pressure on young men to join its movement. However, the country information to which the Delegate said it had regard in relation to pressure on young men from Taliban members is not apparent from the Delegate’s decision record. The Delegate identified with some particularity the other information to which it had regard. The Tribunal found that, whilst claiming a level of intensity of recruitment of young Muslim males in Pakistan, neither the Applicant nor his adviser provided any documents to support “this extremely general and far reaching contention.” The Tribunal noted it could find no reference to the Taliban undertaking a regime of persecution of young Muslim males who refused to join their cause as claimed. Moreover, counsel for the Applicant conceded that there was nothing in the Delegate’s decision in the country information to which it referred that confirmed the Applicant’s claim.
ii)A fair reading of the Tribunal’s decision record does not suggest that the Tribunal’s finding is at odds with the finding of the Delegate. The Delegate accepted that the Taliban may put pressure on young men to join. However, the Delegate did not find that young Muslim males in Pakistan were at risk of persecution from the Taliban or other fundamentalist groups. In particular, the Delegate did not accept that the Applicant was targeted by the Taliban to join them for any Convention related reason. To that extent, the findings of the Delegate and Tribunal are consistent. As stated above, the Applicant’s relevant claim was a fear of persecution from members of the Taliban by reason of being a young Muslim male in Pakistan and having been targeted as such. That claim was rejected both by the Delegate and the Tribunal.
Accordingly, in the circumstances, there has been no breach by the Tribunal of its obligations under s.425 of the Act for the reason of any failure by the Tribunal to raise with the Applicant that it may not accept that the Taliban in Pakistan place pressure on young men to join the movement.
As stated above, the relevant issue before the Tribunal was whether or not the Applicant was targeted in a manner amounting to persecution for a Convention related reason by the Taliban by being threatened with harm if he refused to join the movement. As stated above, the Tribunal clearly raised its concerns about the Applicant’s claims with him at the Tribunal hearing and had regard to his explanations. The Tribunal noted that the Applicant did not claim ever to have been harmed or forced to go into hiding for any reason or that he has been sought in his father’s house since coming to Australia. The Tribunal also noted that the Applicant did not claim his family members had been threatened, intimidated or otherwise approached about his whereabouts. Ultimately, as referred to above, the Tribunal found the Applicant not to be a witness of truth and rejected his claims of ever having been approached by any fundamentalist groups or individuals who wanted to recruit him, including the Taliban.
Accordingly, the ground relied upon by the Applicant in the amended application is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: Serena Kwong
Date: 26 February 2010
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