SZQQS v Minister for Immigration - [2012] FMCA 613

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 613

MIGRATION – Application to review decision of Independent Merits Reviewer – whether failure to address one of the claimed bases for a fear of persecution – whether denial of procedural fairness.

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 85 ALJR 133; [2010] HCA 41
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184

Applicant:

SZQQS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 2107 of 2011

Judgment of:

Barnes FM

Hearing date:

17 April 2012

Delivered at:

Sydney

Delivered on:

13 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gormly

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2107 of 2011

SZQQS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for judicial review in respect of a recommendation by the second respondent (the IMR or reviewer) that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol Relating to the Status of Refugees.
The applicant, a citizen of Pakistan, arrived on Christmas Island on 24 November 2009. In his entry interview conducted in December 2009, he claimed that his wife and father had been killed by the Pakistani Taliban. He also claimed that one of his brothers, one of his sisters and his mother had been taken by force by the Pakistani Taliban and that other relatives were missing. He claimed to fear that he would be killed by the Taliban because he had refused to support Jihad and to join the Taliban and that it was for this reason that the Taliban had killed his father and his wife.
In a statement accompanying his request for a refugee status assessment made on 17 January 2010 under the heading “Why I left my country” the applicant claimed that his mother and father were of different Muslim faiths, being Shia and Sunni (a fact also disclosed in his initial interview). He claimed that he had fallen in love with a Sunni Muslim woman and married her about 20 months earlier and that the Taliban people living in his area of Pakistan, who believed that a Sunni and a Shia should not marry, had labelled him and his wife as “Kafir” (meaning “no religion”) and considered him to be an infidel.
The applicant claimed he believed his father was killed because he (the applicant) had married a Sunni Muslim and that his wife was killed by the Taliban because she had married a Shia man. He claimed to fear that he would be killed by the Taliban because he was “Kafir” and Shia and had married a Sunni woman and that people all over Pakistan would consider him an infidel.
According to the Departmental officer who conducted the refugee status assessment, the applicant’s claims in writing and at interview included claims that because his father was Sunni and mother Shia he was considered a “Kafir” and “suffered teasing, taunting and discrimination as a child and throughout his life”. He claimed that people would not sit near him and that he was ostracised at weddings. He claimed to fear the Taliban would kill him “because he [was] a ‘kafir’ with a Shia Mother who married a Sunni girl connected to [the Taliban] against their wishes and he refused to join their militia”. The Departmental officer concluded that the applicant was not a refugee.
The applicant sought merits review. A psychological assessment report conducted by a clinical psychologist for the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) was provided to the reviewer. Relevant to the ground of review relied on in these proceedings it recorded that the applicant had reported that, apart from a “vivid fear of ghosts”, an “unpleasant experience he endured during his upbringing was the exclusion of he and his family as a consequence of their religion”. The psychologist recorded that the applicant also claimed his parents’ mixed marriage was not accepted by the people in his village and that as a consequence he and his family:
were not spoken to, were not able to play with other children in the village, were called names including ‘Kafir’ … and were also excluded from social events and gatherings. [He] recalls many village dinner events where he and his family would sit and eat alone because of their religious difference. He tearfully states and (sic) this was a hurtful and offensive experience. Further, he explains that whilst he was growing up, he could not understand why the children refused to play with him and what made him different to them.
According to the Statement of Reasons of the first IMR dated 28 August 2010 the applicant expanded on his claims in an interview as follows:
The Panel spoke to the applicant about why he left Pakistan and why he does not wish to return. He said he left because his life was under threat. He claimed that his family members had all been killed. He said he believes that Sunni Taliban members killed them. The Panel asked him why he thinks they were killed. He said because his mother was Shiite and his father a Sunni. The Panel asked him to explain why he thinks that the Taliban would kill his parents. He said he does not know where his mother is. He then said they killed his father because he was different from other Sunnis.
The Panel asked him why he thinks his life would be in danger if he returned. He said he is a Shiite who married a Wahabist Sunni. He claimed that he converted his wife to the Shiite religion.
The applicant also told the first reviewer that his father-in-law wanted him to fight for the Taliban and had promised the Taliban that he would do so.
On 28 August 2010 the first IMR recommended that the Minister not accept that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
Following the decision of the High Court in Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 85 ALJR 133; [2010] HCA 41 the applicant’s claims were considered by another reviewer. That review is the subject of these proceedings and further references to the IMR or to the review relate to the review completed on 23 March 2011.
The IMR conducted an interview with the applicant on 19 January 2011. A transcript of that interview is in evidence before the Court as an annexure to the affidavit of Sue Archer affirmed on 1 December 2011.
The applicant’s migration agent provided a written submission in support of his review application in which it was claimed that the applicant relied on his statement of 17 January 2010, that his wife had been beheaded by the Taliban and that his father, a Shia Muslim, was killed by the Taliban “as a consequence of the marriage of the applicant to a Sunni Muslim woman”. The applicant’s fear of persecution was said to be based on his religion and imputed political opinion on the basis that he was a Pathan Shia Muslim who fled Pakistan after the murder of his father and wife in fear for his own life, believing that “the murders were a direct result of his marriage to a Sunni woman and that his will follow for the same reason”. He claimed his fears arose from warnings from the Taliban and an attack following the murder of his wife. According to the adviser, the applicant claimed that because he was a Shia who married a Sunni he was considered an infidel by Sunni Muslims and his marriage was seen as unholy and deserving of punishment. The applicant also claimed that his wife’s beheading was a direct consequence of their marital union and that his father was killed by the Taliban after being much hated by the local Taliban because of his own marriage to the applicant’s mother who was a Shia Muslim. The applicant claimed that because the Taliban were Wahabi they had a problem with his father, a Sunni Muslim who married a Shia woman.
In addressing the issue of whether the applicant’s fear of harm (on the grounds of ethnicity (sic) and imputed political opinion) was well-founded, the adviser stated that the applicant claimed that the Taliban had tried to force him to attend a Taliban school, that their hatred for his family had escalated when his father refused to send him and that their loathing and disgust for the way he lived his life caused the Taliban to begin eradicating his family members for actions deemed unholy by the Taliban.
In another written submission to the IMR, the applicant’s solicitor/migration agent reiterated claims that the applicant had been targeted by the Taliban (and other people in Pakistan) for having married a woman of Sunni Muslim religion whilst he was of the Shia Muslim faith. His claims were said to be based on his religion and imputed political opinion. It was claimed that he had been suffering from psychological problems and that this should be taken into account in relation to his credibility.

The IMR Decision

In his Statement of Reasons the reviewer set out the various claims made by the applicant since his arrival in Australia. The reviewer described the applicant’s claims at his first entry interview that the Taliban had urged him and his brothers to join Jihad, that if he refused to join the Taliban for Jihad they would kill him and that they had killed his family members because they wanted him and his brothers to join them. The reviewer outlined the claims made for the RSA, including the claim that the applicant was considered “Kafir” because of his parents’ different religions, that he had been teased, taunted, and discriminated against throughout his life because of this, that he had married a Sunni woman against the wishes of her family and that his father and his wife had been killed by the Taliban. The reviewer also recorded that the applicant had told the previous IMR reviewer that his family members had been killed because his mother was a Shiite and his father Sunni and that when that reviewer had put to him inconsistencies between those claims and his claims in his entry interview, the applicant had suggested that the interpreter had incorrectly recorded his claims in the entry interview.
The reviewer summarised the applicant’s evidence at the IMR interview of 19 January 2011. The IMR referred to evidence that the applicant’s mother, brothers and sisters had moved to another city in Pakistan “due to family disputes” and to the fact that when the applicant was asked if he could relocate to live with them, he said that the situation was not good there because if he went back “the people I marry their daughter will kill me. They can find me wherever I go”. The reviewer recorded that when asked how these people would find him, the applicant said “the Taliban is everywhere” and when asked if both the Taliban and his in-laws were after him he said “[t]hey are the same” and asserted that his in-laws had alliances with the Taliban. The applicant also claimed to the IMR that he had kidnapped his wife and married her and that two or three days later they killed his father. He said he knew that her family were Taliban.
The applicant agreed with the reviewer that the Taliban had approached him to join them before he married. He claimed that they had asked him to “come and do prayers in the Mosque”. When his earlier claims that the Taliban asked him and his brothers to fight with them in Jihad were put to him, he said that they had told his father to send his sons to the Madrassah to read the Koran some six or seven years earlier. He confirmed that the family then had trouble with the Taliban because they would not fight with them, although they had not done anything to the family during those years.
The reasons for decision continued:
I asked the claimant if he lived in Havelia for 6 months after his wife was killed. He said, “after that I lived in Havelia”. I asked if anything happened to him during that time. He said, “they attacked me, 3 people lashed me”. I asked how long after his wife died. He said, “2 or 3 weeks”. I asked if he stayed on there for another 5 months. He said, “no, I escaped to other regions”. I asked what other regions. He said, “surrounding villages”. I asked the claimant why the Taliban would be interested in him now. He said, “because I got married to their family.” I pointed out to the claimant the contradictions between his entry interview statements that the Taliban killed his father and wife and abducted his family after they refused to fight with the Taliban and his recent claims that the Taliban killed his wife and father because of their mixed religion marriage and that nothing had happened for 4 or 5 years after the refusal to fight. He said, “yes”. I asked why he did not mention the problem with his wife’s family at the entry interview. He said, “I did not understand properly, now I do”. I asked why he told the previous reviewer he did say it but there was an interpreting problem. He said, “I have said this so many times, you can check”. I pointed out there was not a single mention of a problem with his in-laws in the entry interview. He said, “I have told many times”. I pointed out his evidence to me that it was because he didn’t understand properly. He said, “sorry I did not understand what you are saying”. I pointed out again the absence of any mention of problems with his wife’s family in his entry interview. The claimant gave a somewhat rambling response about mentioning the death of his wife and father and religious problems.
I asked how long his mother and 5 siblings had been living in Quetta. He said, “two to two and a half years ago”. He said his brother had been attacked. I asked if that was a suicide bomb after Friday prayers during Ramadan. He said it was. I asked if anything else had happened to his family during those two and a half years. He said, “lots of things, everyday there is a killing”. I asked why he could not live with his family in Quetta. He said, “they are targeting Shias every day”. At the completion of the interview his adviser submitted that any confusion in the claiman’s answers should be considered in light of the psychological report which says he has trouble comprehending questions and possible intellectual problems.
In his findings and reasons the reviewer found that the applicant had given inconsistent and contradictory evidence over time, that his explanations for such inconsistencies were themselves contradictory, that in the interview he was “repeatedly evasive and non-responsive” in answer to questions and that on several occasions “his responses were not related to the question”. The reviewer stated that he had drawn the distinct impression that the applicant was “dissembling and playing for time to come up with a plausible answer” and was satisfied he was not a credible witness. The reviewer continued:
It is submitted on behalf of the claimant that he is at risk of harm from the Taliban in general and from his former in-laws in particular. He claims that his wife’s family are Taliban supporters and that they can find him wherever he goes in Pakistan. He initially claimed that the Taliban killed his wife and father because he and his brothers refused to join them in Jihad. These claims are recorded over several pages on his entry interview. There is no mention of any problem with his wife’s family. Indeed, he stated then that his father in law urged him to join the Taliban. However, he later claimed to have kidnapped and married his wife and to have incurred the enmity of her family and to have fled and never seen them again. However, he also claims that his refusal to join the Taliban predated his father’s death by some 5 years during which nothing happened. His claims are confused and confusing. I have had regard to the psychologist’s report in considering the credibility issue. The report does not actually diagnose PTSD; rather it states that the claimant is displaying symptoms of PTSD. In my view that is a significant point of difference. I find the claims fanciful, far-fetched and implausible.
Even if I was to accept those claims, which I do not, the evidence is that the claimant’s family has been able to relocate and live in Quetta for several years. The claimant said he could not go and live with his family in Quetta but was unable to provide any reason why not, other than to claim that Shias are targeted there. The country information shows that there is a considerable level of randomized and general violence in Pakistan which affects the entire population and not just minority groups. There is no credible evidence to show that the claimant is at particular risk of harm from the Taliban or anyone else in Pakistan.
In the claimant’s case there are no particular and individual factors that distinguish him from the general Shia population and that would support his claim for protection. He has family in Quetta that he could live with while establishing himself.
The IMR also considered the applicant’s claim to be at risk of harm as a returnee but found no credible evidence to support the claim he would be persecuted for a Convention reason because he had been an asylum seeker in a western country. Insofar as there was a claim that the applicant would come to the adverse attention of the authorities for departing Pakistan illegally, the reviewer found that any such attention would be pursuant to the application of the general law and not necessarily for a Convention reason. The IMR also found that any claim that the applicant would be suspected of being a western spy or collaborator would be mere speculation and that there was no objective evidence to support such a claim in relation to Pakistan.
Finally, the IMR considered whether the claimant was at risk of harm as a Shia in Pakistan in general. While the reviewer accepted there was “clear evidence of randomized general violence in much of Pakistan and also evidence of negative discrimination and attacks against minority groups” he also found that it was clear from country information that the authorities were “making substantial attempts to curb the violence and to defeat the Taliban insurgency” and that it could not “be said with certainty that the authorities [were] complicit in attacks against Shia or that there [was] systematic persecution of Shia in Pakistan”. The reviewer had regard to the fact that the applicant’s family had “been able to continue living unmolested in the family home in Quetta for almost three years and to go about their daily lives without experiencing direct or targeted harm”. The reviewer found that the claim about a bomb injury to the applicant’s brother had occurred at Friday prayers and was an example of the generalised violence which was not necessarily directed at the applicant’s family.
The reviewer concluded that there was not a real chance of harm to the applicant for a Convention-related reason and recommended that he not be recognised as a person to whom Australia has protection obligations.

Whether Reviewer Failed to Address a Basis for the Applicant’s Claims

The applicant sought review by application filed in this Court on 19 September 2011. He relies on an amended application filed on 6 December 2011. There is one ground in the amended application. It is that the decision of the reviewer was “affected by legal error” in that:
(a)The reviewer failed to address one of the claimed bases for the applicant’s fear of persecution by the Taliban, namely that the applicant was part of a social group comprised of persons and children of mixed Sunni and Shia marriages.
(b)Further, the failure to deal with the claim was a denial of procedural fairness.
The applicant submitted that although the asserted claim that the applicant had a fear of persecution by the Taliban as part of a social group comprised of persons and children of mixed Sunni and Shia marriages was not expressly made to the IMR, it was raised by the evidence and hence arose clearly on the materials before the reviewer in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61] and [63]. It was submitted that this general claim or family claim (referred to for convenience as the “mixed marriage claim”), separate from the individual claims concerning the deaths of the applicant’s father and wife, was not addressed by the reviewer’s findings in relation to the individual claims.
Counsel for the applicant pointed out that the applicant first identified himself as the child of a mixed marriage in the entry interview. He specified that his religion was Islam, Shia on his mother’s side and Sunni on his father’s side. It was acknowledged that in his entry interview the applicant did not make any claim that the reason for the deaths of his father and wife related to his parents’ mixed marriage or his own marriage as a Shia to a Sunni wife who had connections with the Taliban. However, Mr Gormly for the applicant pointed out that in his Statutory Declaration provided to the RSA, under the heading “Why I left my country”, the applicant referred to the fact that his mother and father were of different Muslim faiths (Shia and Sunni) and went on to state that he had fallen in love with a Sunni Muslim woman, before referring to the fact that there were many Taliban in his home area in Pakistan and that the Taliban people believed that a Sunni and Shia should not marry. It was submitted that in this part of his written statement the applicant made two basic claims, firstly based on his own parents’ mixed marriage and secondly on the basis of his own marriage to a Sunni woman. It was noted that in relation to the issue of why he believed he would be harmed or mistreated if he returned to Pakistan the applicant had claimed to believe he would be harmed because “I am kafir and a Shia and married a Sunni”.
In addition, reference was made to the fact that at the RSA interview the applicant had claimed that he was considered “Kafir” because of his parents’ different religions and that because of this he had been teased, taunted and discriminated against throughout his life (as the IMR recorded in his reasons for decision). It was suggested that in the claims he made to the psychologist who conducted the psychological assessment report the applicant had also given details of social discrimination which he suffered because of his parents’ mixed marriage, about the lack of acceptance by people in his village and the fact that, as a consequence, he and his family were not spoken to, were not able to play with other children in the village, were called names including “Kafir”, were excluded from social events and gatherings and had to sit and eat alone at village dinner events.
Reliance was also placed on the fact that at the interview with the first reviewer the applicant was said to have claimed that he thought that his family members had all been killed because his mother was a Shiite and his father a Sunni as well as that he thought his life was in danger because he was a Shiite who had married a Wahabist Sunni.
The applicant submitted that while the reviewer had recited the claim that the applicant was considered “Kafir” because of his parents’ different religions and that because of this he had been teased, taunted and discriminated against throughout his life in the description of claims and evidence, in the findings and reasons part of the decision the reviewer had considered and addressed the individual claims that his father and wife were killed because he (the applicant) had married his wife who was a Sunni person whose family had contacts with the Taliban but had not specifically addressed the child of a mixed marriage claim. It was submitted that the child of a mixed marriage claim underlay the individual claims but was not, strictly speaking, a part of it. As explained in submissions the claim was said to be a claim that people who had mixed marriages exposed themselves and their children to social discrimination and were treated as separate from, at least, village society. It was submitted that the factual substratum of the mixed marriage claim as it applied to the applicant was left intact by the reviewer’s findings in the absence of any negative or other finding about the consequence for the applicant of the fact that his father was a Sunni man who had married a Shiite woman. It was also submitted that this general mixed marriage claim was not subsumed in the findings about the individual claims. It was contended that while the reviewer had considered the applicant’s credibility and the difference between what the applicant said at the entry interview and on subsequent occasions, he had not addressed and had overlooked the general mixed marriage claim in the findings about the individual claims.
Counsel for the applicant acknowledged that the reviewer had found (without specific reference to any mixed marriage claim) that in the applicant’s case there were no particular and individual factors that distinguished him from the general Shia population that would support his claim for protection. However it was submitted that this amounted to a consideration of the general Shia claim made by the applicant but did not extend to or subsume the mixed marriage claim based on the marriage of the applicant’s parents. It was also submitted that the reviewer had not rejected any factual premise of the mixed marriage/social group claim (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]).
The first respondent submitted that the IMR addressed the mixed marriage claim made by the applicant or arising on the material before him. It was contended that the reviewer set out the claim concerning the applicant’s mixed religion family in his reasons and comprehensively rejected his claims. It was said to be apparent that the mixed marriage claim formed part of the claims that were rejected. In addition, it was submitted that the reviewer’s finding that the applicant was at no particular risk of harm from the Taliban or anyone else in Pakistan also dealt conclusively with all of the applicant’s claims.
As counsel for the first respondent accepted, a failure to respond to a substantial clearly articulated argument relying upon established facts constitutes a denial of procedural fairness (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]). As stated in WAEE at [47]:
The inference that the [decision-maker] has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the [decision-maker] review ... a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The first respondent did not dispute that the applicant’s claims included a claim of the nature described in particular (a) to the ground in the amended application but pointed out that in determining whether a claim has been overlooked, it is appropriate to consider the precise claims made by the applicant or arising on the material before the reviewer and to have regard to the whole of the IMR’s Statement of Reasons to see whether the IMR was alive to those claims. I agree. It is also necessary to consider the reviewer’s specific findings to determine whether they addressed, at a general or at a specific level, the claim in question.
When one has regard to the particular claims made by the applicant over time, it is clear that in his entry interview he identified his religion as “Islam”, “Shia mother’s side” and “Sunni father’s side” but that he made no claim to fear persecution on that basis.
In the Statutory Declaration he provided to the RSA, the applicant first described himself as of Shia religion. He did refer to the difference in religion of his mother and father and to the fact that he married a Sunni Muslim but also to the fact that there were many Taliban people living in his area of Pakistan, that the Taliban believed that a Sunni and Shia should not marry and that he and his wife were labelled as “Kafir” so he was considered an infidel. In other words, the applicant isolated the cause of the harm he feared as a claim to fear the Taliban in a particular part of Pakistan based on his own marriage. Moreover he went on to emphasise that he believed that his father was killed by the Taliban because he (that is, the applicant) had married a Sunni Muslim. The applicant repeated that claim in respect of his wife, claiming that he believed she was killed by the Taliban people in their area because she had married a Shia man.
It is the case that the applicant had also stated that he could not live elsewhere in Pakistan because of his religion (which he had identified as Shia) and because he married a Sunni woman. He claimed that “people all over Pakistan will consider me an infidel”. The applicant also reiterated that he believed that he would be harmed by the Taliban because he was “Kafir” and a Shia who had married a Sunni.
The claims recorded by the psychologist were claims of past discrimination in the applicant’s home village based on his parents’ mixed marriage and no more than that. The ground in issue in these proceedings relates to a claimed fear of persecution by the Taliban. The RSA recorded these claims but also summarised the applicant’s claim to fear persecution as a fear the Taliban would kill him because he was a “Kafir” with a Shia mother who had married a Sunni girl connected to the Taliban against their wishes and had refused to join their militia.
At the first IMR interview, when asked about why he left Pakistan and why he did not wish to return, the applicant claimed that his life was under threat, that his family members had all been killed and that he believed Sunni Taliban members killed them. When asked why he thought they were killed, he claimed it was because his mother was Shiite and his father Sunni. He then said he did not know where his mother was and that they had killed his father because he was different from other Sunnis. When asked why his life was in danger however, he said it was because he was a Shiite who married a Wahabist Sunni and converted her to the Shiite faith. He also claimed that his father-in-law wanted him to fight for the Taliban. Again, these claims focused upon the Taliban and involved claims that were not averted to in the original interview.
In his reasons for decision the IMR outlined the claims made by the applicant at various times, including his claim that his mother was Shia and his father Sunni and the claim he made to the RSA that he was considered a “Kafir” because of his parents’ different religions, “teased, taunted and discriminated” against throughout his life as well as his claims concerning his marriage, the abduction of his family and the death of his father. He also referred to the claim about the death of the applicant’s wife.
The reviewer set out what occurred in the first IMR interview including the applicant’s claim that his family members had been killed because his mother was Shiite and his father Sunni. Further, the reviewer recorded the claims at the second interview, in particular the applicant’s claim that the Taliban would be interested in him “because I got married to their family”. As the reviewer recorded, he pointed out to the applicant the contradictions between his entry interview statement that the Taliban killed his father and wife and abducted his family after they refused to fight for the Taliban and his later claims that the Taliban killed his wife and father because of their mixed religion marriage and also that nothing had happened for four or five years after the refusal to fight. The reviewer revealed an awareness of contradictory aspects to the applicant’s claims based first on the Taliban wishing to kill him because he was not taking part in Jihad and based secondly on interreligious marriage. When the reviewer characterised the applicant’s claim as a fear of a risk of harm from the Taliban in general and from his former in-laws in particular that was, with the exception of the claim about relocation, an accurate assessment of all the claims to fear persecution that he had made, including the claims related to mixed marriage, whether it be his own mixed marriage or the fact that he was the product of a mixed marriage.
The reviewer identified the mixed marriage claim referred to in the ground in the amended application (see WAEE at [47]) based on the applicant’s parents’ marriage as well as on his own marriage. The IMR addressed both the applicant’s claims about what had occurred in the past and the basis for his fear he would be killed by the Taliban. This is not a case in which an inference should be drawn that the IMR failed to consider the mixed marriage claim. The IMR set out the claim concerning mixed marriage and that claim formed part of the claims that were rejected by the general rejection of the credibility of the applicant’s claims (WAEE at [47]).
It is clear that the reviewer’s primary findings that the applicant was not a credible witness (based on the inconsistent and contradictory evidence given over time, his contradictory explanations, repeated evasiveness and non-responsiveness) and that his claims to fear the Taliban and his former in-laws were “confused and confusing” and “fanciful, far-fetched and implausible” dealt with all of his claims (with the exception of his claims in relation to obstacles to relocation, his claims as a returnee or as a Shia in Pakistan which were discussed thereafter). The IMR did not accept “those claims”. Seen in light of the IMR’s more detailed earlier description of the various claims made at different stages, this part of the reviewer’s findings dealt comprehensively with all aspects of the reasons the applicant said he feared the Taliban in general and his former in-laws (who were Taliban). These findings clearly encompassed the applicant’s claims to fear the Taliban in his area who were of the view that Shias should not marry Sunnis.
Furthermore, the reviewer also found that even if those claims that had been rejected were accepted, the applicant could relocate to Quetta and on that basis would not have a well-founded fear of persecution in Pakistan. In that context the IMR found that there was no credible evidence to show that the applicant was at particular risk of harm from the Taliban or anyone else in Pakistan. Such finding also dealt conclusively with all the applicant’s claims to fear persecution by the Taliban, including the mixed marriage claim. This is apparent when the finding is seen in light of the fact that an essential element of the definition of “refugee” in Article 1A(2) of the Refugees Convention is that the putative refugee is outside his or her country of nationality owing to a well-founded fear of harm, that the qualification imposed by the term “well-founded” requires there to be real chance of harm (Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62) and that the harm feared must be for one of the reasons articulated in the Convention. The finding that there was no “particular risk” of harm meant that the applicant’s fear could not be either well-founded or for one of the Convention reasons, having regard to the fact that the word “particular” as used by the IMR in this context clearly referred to the reasons for harm. This is clear from the preceding sentence in the reasons for decision, which referred to country information showing that there was a considerable level of randomised and general violence in Pakistan “which affects the entire population and not just minority groups.”
In addition, the conclusion that the applicant’s specific claims dealing with a fear of the Taliban because of his or his parents’ mixed marriage (and, indeed, any broader claim that everyone in Pakistan would treat him badly or discriminate against him for this reason) were addressed by the reviewer is consistent with and reinforced by the reviewer’s finding that there were no “particular and individual factors” that distinguished the applicant from the general Shia population and no credible evidence to show that the applicant (whose siblings had relocated to and resided in Quetta for several years) was at particular risk from the Taliban or anyone else in Pakistan.
In other words, given the combination of the express references in the earlier part of the reasons to the particular claims made by the applicant, the general credibility finding made by the reviewer on the basis of the applicant’s inconsistencies, contradictory evidence, repeated evasiveness and non-responsiveness, the findings that his claims to fear the Taliban were fanciful, far-fetched and implausible as well as the subsequent specific findings, I am satisfied that any claims arising from or based on the applicant’s or his parents’ mixed marriage were sufficiently addressed by the reviewer. It has not been established that the reviewer failed to address one of the claimed bases for the applicant’s fear of persecution by the Taliban.
The ground in the amended application is not made out. Hence the application must be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 13 July 2012