SZQTV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 827

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQTV v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 827

MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged breach of s.425 – finding that the applicant could relocate said to be arbitrary, capricious or unreasonable – in the alternate the Tribunal said to have erred by failing to consider whether to exercise its power pursuant to s.427(1)(d) of the Migration Act or adopting a procedure that was inconsistent with the requirements of natural justice – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 424A, 425, 427, 476

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390
SZLNW v Minister for Immigration and Citizenship [2008] FCA 910
SZJUB V Minister for Immigration & Citizenship [2007] FCA 1486
SZIMM v Minister for Immigration & Anor [2008] FMCA 34
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74
SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415
Minister for Immigration & Citizenship v Applicant  A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration & Citizenship v SZGUR & Anor (2011) 241 CLR 594; [2011] HCA 1
SZMYO v Minister for Immigration & Citizenship (2011) 121 ALD 272
Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
WAGJ v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277
Minister for Migration and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12

Applicant: SZQTV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2408 of 2011

Judgment of: Nicholls FM

Hearing date: 10 May 2012

Date of Last Submission: 10 May 2012

Delivered at: Sydney

Delivered on: 21 September 2012

REPRESENTATION

Counsel for the Applicant: Mr L J Karp

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Appearing for the Respondents: Mr O Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 21 October 2011, amended on 19 March 2012 and further amended on 10 May 2012, is dismissed.

2. The applicant pay the first respondent’s costs, set in the amount of $7277.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2408 of 2011

SZQTV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 21 October 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 19 March 2012 and further amended on 10 May 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 16 September 2011, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Pakistan of Pashtun ethnicity

   
   

   (Court Book – “CB” – CB 2). He arrived in Australia on 19 January 2008 on a student visa (CB 4). On 20 January 2011 the applicant applied for a protection visa (CB 1 to CB 54, with annexures). He was assisted in making that application by a registered migration agent (CB 32 to CB 34)

Claims to Protection

1. Accompanying that application was a statutory declaration, made on 19 January 2011, in which the applicant set out his claims to protection (CB 27 to CB 31).

2. In that statement the applicant claimed to fear harm from the Taliban. He claimed that his father was an Imam, as well as a local business man, and was vocal in his opposition to the Taliban and its actions ([2] at CB 27). Further that that opposition brought his father to the attention of the Taliban and, by telephone on 1 June 2007, the applicant’s father was threatened with his own, and his family’s, death if he continued to preach against “suicide” attacks ([3] at CB 27). Again, in July 2007, the applicant’s father received a threatening telephone call ([5] at CB 28).

3. Following those telephone calls, the applicant’s family home was set alight by explosives ([5] at CB 28). The applicant suffered burns to his hand. Further, in 2009 and in 2010, bullets were fired at the family home ([10] – [11] at CB 29).

4. Earlier in April 2008, the applicant’s father was kidnapped, beaten and forced to promise that he would cease his sermons and leave his village ([8] at CB 28). Further, in September 2009, the applicant’s uncle was kidnapped by the Taliban and, ultimately, killed ([9] at CB 29).

5. While all of those incidents were reported to the police, nothing could be done as the police were fearful of the Taliban ([4] – [5] at CB 28 and [13] at CB 30).

6. Since 2010 the applicant’s parents had been “moving from place to place” and “never staying in one place too long” ([15] at CB 30). That had put enormous pressure on his family. In particular, the applicant was “under stress” and had been receiving “treatment of general practitioners” ([15] – [17] at CB 30 and [18] at CB 31).

7. The applicant also claimed to fear harm in other parts of Pakistan because of his “Pashtoon” ethnicity. Given his appearance and accent he stated that he would be easily identified as Pashtun should he relocate within Pakistan ([18] at CB 31).

The Delegate

1. The applicant was invited to attend an interview with the delegate on 8 March 2011 (CB 57 to CB 59). The applicant attended on that date.

2. Prior to that interview, by letter dated 7 March 2011, the applicant’s representatives provided written submissions and supporting documents to the Minister’s department (CB 60 to CB 69).

3. On 29 April 2011 the delegate decided to refuse the grant of a protection visa to the applicant (CB 84 to CB 96). The delegate accepted that the applicant’s father was a local Imam, that he had come to the adverse attention of the Taliban, and that the applicant and his family were targeted and threatened as a result (CB 93). Further, the delegate accepted that the police were unable to provide adequate protection.

4. However, the delegate found that the applicant’s fear of harm from the Taliban was localised and that he could reasonably relocate to another part of Pakistan (CB 93). Further, the delegate was not satisfied that the applicant would face persecution in Pakistan because of his Pashtun ethnicity (CB 93).

The Tribunal

1. On 5 May 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 97 to CB 100). He was invited to attend a hearing before the Tribunal on 2 August 2011 (CB 114 to CB 117). Following a request by the applicant’s representative (CB 119), that hearing was postponed to 5 August 2011 (CB 120 to CB 122). The applicant and his representative attended on that occasion (CB 148).

2. Prior to the hearing, the applicant’s representative provided written submissions dated 14 July 2011 and 2 August 2011, to the Tribunal (CB 123 to CB 130 and CB 131 to CB 140). Attached to the later submissions was a statutory declaration made by the applicant regarding the death of a “close family friend” in June 2009 (CB 141).

3. Further, by facsimile transmission on 3 August 2011, a letter was provided to the Tribunal. That letter, from a clinical psychologist at the “Transcultural Mental Health Centre” (“TMHC”), dated 3 August 2012. That letter stated that the applicant had presented to her for an “assessment of his psychological symptoms” (CB 143 and produced in duplicate at CB 144).

4. At the hearing, the applicant produced a further letter, dated 28 June 2012, from the clinical psychologist at the TMHC (CB 145). This appears to be an earlier attempt by the TMHC to arrange an appointment with the applicant. [I note that he also provided a further copy of the letter from the psychologist at TMHC dated 3 August 2011 (CB 144) – see [16] above.] Further, the applicant provided copies of letters from a psychologist (CB 146) and counsellor (CB 147) respectively at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”).

5. While the applicant had those letters with him at the hearing, what should be noted is that the hearing was conducted by video-link. The applicant was physically in Sydney. The Tribunal member in Melbourne (CB 115). The transcript (“T”) of the hearing was put into evidence before the Court (with no objection by the respondent) as an annexure to the affidavit of Mr David Lee Bitel, the applicant’s solicitor, affirmed on 20 April 2012. With reference to T 27, it is clear that the Tribunal member did not take physical possession of these letters at the hearing. They appear to have been sent to her by facsimile transmission. On the best view of the evidence, having regard to the remainder of the transcript (see in particular T 30, lines 39 – 42), that transmission occurred after the hearing.

6. Following the hearing, on 16 September 2011, the Tribunal decided to affirm the decision of the Minister’s delegate (CB 152 to CB 180). Its finding and reasons are set out in its decision record ([88] at CB 175 to [108] at CB 180), a copy of which was provided to the applicant (CB 150 to CB 151).

7. The Tribunal accepted that the applicant’s father was an Imam, had spoken out against the Taliban, had been warned to cease doing so and that the applicant’s family home had been set alight as a result of his father’s failure to heed that warning ([91] at CB 175 to CB 178).

8. But, the Tribunal rejected, as being “implausible”, the applicant’s claims that his father had been kidnapped and tortured and that his family home had been fired at on two occasions ([92] – [94] at CB 176). While the Tribunal accepted that the applicant’s uncle may have been killed by the Taliban, on the evidence before it, it was not satisfied that his death had any connection to the applicant’s father or family ([95] at CB 176 to CB 178). However, and ultimately, the Tribunal accepted that the applicant had a well-founded fear of persecution if he returned to his local area in Pakistan ([97] at CB 177).

9. However, the Tribunal concluded that the applicant would be able to relocate within Pakistan and would not be at such risk if he were to do so. The basis for that conclusion was the Tribunal’s findings that the applicant’s father’s profile, both as an Imam and business man, did not extend beyond his local area ([100] at CB 178 to CB 179). Further that the applicant’s political profile was not such that he would be pursued outside his local area, even when his Pashtun ethnicity and the fact that he had returned from overseas were considered as factors ([104] at CB 179).

10. The Tribunal also rejected the applicant’s claim that his Pashtun ethnicity precluded him from relocating in Pakistan. The Tribunal identified several locations in Pakistan which had a “sizeable Pashtun community” ([101] to [103] at CB 179).

11. In finding that the applicant could relocate in Pakistan, the Tribunal turned its mind to the applicant’s ability to subsist. The Tribunal referred to the applicant’s language skills and qualifications, as well as his demonstrated “capability and resourcefulness” in studying in Australia ([105] at CB 179).

12. The Tribunal also considered the three letters provided by the applicant (see [16] – [17] above – the TMHC letter of 28 June 2012 (CB 145) has no further relevance). It found that no further report had been provided by the TMHC and that the letter provided by that service contained no information about the applicant’s mental health ([106] at CB 179). While the STARTTS letters both contained information as to the applicant’s present symptomology and his ability to undertake paid employment in Australia, they were both prepared for the purpose of assessing the applicant’s claim under the “Eligibility for Asylum Seeker Assistance Scheme” and did not consider his future ability to engage in paid work. In those circumstances, little weight was given to those documents ([106] at CB 179 to CB 180).

The Application to the Court

1. At the first Court date orders were made granting leave to the applicant to file any amended application by 17 January 2012. On 19 March 2012 an amended application was presented at the Court’s Registry. At the final hearing the applicant sought leave to file and rely upon a further amended application. A copy of that document had been attached to his written submissions, filed on 24 April 2012. Leave was granted, with no objection from the respondent, for that document to be filed in Court.

2. The four remaining grounds of the further amended application are as follows:

   “1. The Tribunal breached the requirements of section 425 of the Migration Act.

   Particulars

   (a) Failure to raise with the applicant the issue of whether he would be able to undertake paid employment were he to return to Pakistan.

   …

   [Ground two was crossed out. The applicant’s submissions stated that “…ground 2 of the amended application is deleted”.]

   …

   3. The Tribunal’s finding that the applicant could relocate within Pakistan was arbitrary, capricious or unreasonable to the extent that the state of satisfaction required by section 65 of the Migration Act was not reached.

   Particulars

   (a) The Tribunal, having apparently accepted the opinion of STARTTS psychologists that the applicant was incapable of undertaking paid employment in Australia (where he is safe) because of his PTSD, anxiety and depression, gave this opinion “little weight” in assessing his ability to return to Pakistan (where he feared being killed by the Taliban).

   4. Alternatively to Ground 3 above, the Tribunal erred in failing to consider whether it should exercise its power pursuant to section 427(1)(d) of the Migration Act.

   Particulars

   (a) Failure to consider whether a seek a report as to the ability of the applicant to engage in paid employment were he to return to Pakistan.

   5. Alternatively to ground 3 above the Tribunal erred in failing to adopt a procedure consistent with the requirements of natural justice.

   Particulars

   (a) Failure to consider whether to seek a report as to the ability of the applicant to engage in paid employment were he to return to Pakistan.”

   [Emphasis in original.]

Before the Court

1. At the hearing, Mr L J Karp of counsel appeared for the applicant. Mr O Jones represented the first respondent. The Court had before it the Court Book and written submissions filed by the applicant and respondent, as well as the affidavit of Mr Patel, which annexed a transcript of the hearing before the Tribunal (see above at [18]).

The Basis for the Applicant’s Case Before the Court

1. The applicant’s four grounds focused on the issue of relocation and, in that context in particular, the significance of the letters before the Tribunal from the psychologist and the counsellor from STARTTS (CB 146 and CB 147, respectively).

2. As set out above (at [18]), those letters were not physically before the Tribunal member at the hearing. However, prior to making its decision, the Tribunal had before it the two letters from STARTTS, both of which attested to the applicant’s clinical presentation and made an assessment, for the purposes of the “Asylum Seeker Assistance Scheme”, on the applicant’s eligibility for that scheme. The applicant’s submissions before the Court sought to emphasise that this was an assessment of the applicant’s ability to undertake paid employment.

3. It was said that the Tribunal did not doubt the expertise of the counsellor, nor the psychologist, who prepared those letters. Nor did the Tribunal doubt the assessment of the applicant as recorded in those documents. In particular, that as of 12 May 2011, he was “currently not capable of undertaking paid employment” (CB 146). Further, that as at 26 July 2011, the applicant was still “… currently not capable of undertaking paid employment” (CB 147).

4. It was submitted by counsel for the applicant, given the above, that the Tribunal’s subsequent treatment of those letters was “bizarre”, and that it was that “bizarre” treatment that gave rise to the grounds of the further amended application.

5. I note that at the beginning of his oral submissions, the applicant indicated that his case “was not concerned with the documents at CB 144 and CB 145” as those document were merely concerned with the making of appointments. That is, the two letters from the “clinical psychologist” at TMHC, dated 3 August 2011 (produced in duplicate at CB 143 and CB 144) and 28 June 2011 (CB 145).

6. However, in light of the applicant’s (albeit brief and unspecified) reference in oral and written submissions in relation to grounds four and five to his “treating psychologist” it is preferable that I also deal with the letter from the clinical psychologist at TMHU, dated 3 August 2011 (CB 143 and CB 144), as being relevant to some of the grounds. That is, that in addition to the two STARTTS letters, the applicant relied on the TMHU letter of 3 August 2011 in support of his two final grounds (see further below).

Ground One

The Submissions

1. Ground one asserts a breach of s.425 of the Act in that the Tribunal is said to have failed to raise with the applicant an issue dispositive of the review in the way explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”). That issue was said to be whether the applicant would be able to undertake paid employment if he were to return to Pakistan.

2. Mr Karp also submitted that the ability of the applicant to earn an income and financially support himself was a critical issue to be determined in the Thankreview as relocation and the reasonableness of relocation was the issue dispositive of the review. In the current case, prior to making its decision, the Tribunal had material before it (the STARTTS letters) which stated that the applicant was, as at 12 May 2011 and 26 July 2011, “… not capable of undertaking paid employment”. In those circumstances, the Tribunal was required to provide the applicant with an opportunity to comment on, and give evidence in relation to, that “issue”.

3. Before the Court, it was agreed that at the hearing the Tribunal had raised with the applicant the issue of relocation. But it was the applicant’s assertion that, in breach of s.425 of the Act, the Tribunal had failed to alert him to the issue of whether he was capable of undertaking paid employment in Pakistan. In support of that argument, Mr Karp referred the Court to SZBEL at [47], and SZDFZ v Minister for Immigration and Citizenship & Anor [2008] FCA 390 (“SZDFZ”) at [19] – [22] per Flick J.

4. The applicant also relied on SZLNW v Minister for Immigration and Citizenship [ 2008] FCA 910 (“SZLNW”) per Cowdroy J, particularly at [39] – [40], as directive as to how this Court should approach the current case:

   “[39]. Contrary to such finding, and the Minister’s submission that SZBEL only relates to issues of credibility, the Court finds that SZBEL does apply. The decision in SZBEL makes it plain that if the Tribunal is to determine the application before it adversely to the applicant for a specific reason, it is obliged to put that circumstance to the applicant and to invite the applicant to respond. The Court in SZBEL said at [47]:

   But 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 the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [emphasis in original]

   [40] The Tribunal letter addressed the appellant’s claims relating to his fear of persecution including his claim that he feared persecution from individuals whom he had arrested, and invited the appellant to comment on such claims generally. It was necessary for the Tribunal to put directly to the appellant that one of its concerns was his inability to identify the persons who might harm him if the Tribunal was going to make a factual finding adverse to the appellant on that issue. Since the Tribunal had not specifically asked for the identity of the relevant persons at the hearing and had not requested details of such in the Tribunal letter, the appellant was not placed on notice that unless he provided such detail, the Tribunal might make an adverse finding against him.”

1. Further, in response to the Minister’s submission that the applicant’s ability to work if he returned to Pakistan was subsumed in the broader issue of relocation, which was raised with the applicant at the hearing before the Tribunal, Mr Karp referred the Court to SZDFZ for the proposition that the issues in a review before the Tribunal should not be defined inflexibly. Specifically that (at [22] per Flick J):

   “… An inflexible attempt to define those ‘issues’ in a particular way may tend to divert attention from the principle concern of s.425, namely to ensure that the applicant is given a meaningful opportunity to be heard …”

2. The Minister’s response was two pronged. First, the Minister submitted that the “determinative, dispositive, critical or important issue”, which the Tribunal was required to raise with the applicant, was whether he could reasonably relocate in Pakistan. That issue was raised at the hearing. The applicant’s ability to obtain employment was a factor, along with others, that was relevant to the Tribunal’s consideration of whether the applicant could relocate. In those circumstances, the Tribunal was not required to alert the applicant to that particular “underlying fact” (SZJUB V Minister for Immigration & Citizenship [2007] FCA 1486 (“SZJUB”) at [25] per Bennett J and SZIMM v Minister for Immigration & Anor [2008] FMCA 34 (“SZIMM”) at [65] per Barnes FM).

3. Second, at the hearing the Tribunal did raise with the applicant, in connection with the issue of relocation, various factors relating to his ability to obtain employment in Pakistan. Specifically (T 24,

   
   

   lines 1 -  8):

   “… but could you not relocate to another part of Pakistan … You are educated; you’ve completed a number of courses; you have work experience as a cashier and bookkeeper; you are fluent in Urdu and English …”

Ground One: Consideration

1. First, it is important to note what the Tribunal actually, and relevantly, did in relation to this matter. The Tribunal did discuss at the hearing the issue of the applicant’s relocation away from his local area to other parts of Pakistan. The Tribunal found that the applicant would be at risk of persecution if he were to return to his home district. However, it also found that it would be reasonable and practicable for him to live elsewhere in Pakistan where there would not be a real chance that he would be persecuted for a Convention reason.

2. The dispute between the parties centres around the latter finding. In ground one the specific dispute is with reference to s.425 of the Act and SZBEL. It has been framed by the applicant as asserting that the Tribunal failed to discuss with the applicant, in the context of relocation, the “issue” of whether he would be able to undertake paid employment if he were to relocate in Pakistan.

3. I agree with the applicant that direction to this Court, and therefore assistance in resolving the complaint in the current case, is to be found in what Flick J said in SZDFZ. But where I depart from the applicant’s position is with the implication, if not assertion, that, with respect, Flick J’s analysis gives license to describe anything in the review as an “issue” in the review.

4. I respectfully understand Flick J’s direction (as set out at [39] above) to be, as plainly stated, that an inflexible approach to defining the issues may divert attention from the real thrust of s.425 of the Act. That is, that the applicant be given a meaningful opportunity to be heard. I respectfully understand that to be the application in s.425 of the well established common law principle that an applicant know the case against him or her and be given the opportunity to respond (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [27]).

5. Before the Court, the applicant focussed on, and assumed, the definition of the “issue” in the review as being whether he could undertake paid employment in Pakistan. Not whether the Tribunal’s relevant procedural fairness obligations under s.425 of the Act were discharged.

6. I respectfully understand that what Bennett J said in SZJUB (as relied on by the Minister) is consistent with that latter point. Her Honour’s analysis explains the distinction between an “issue” and the factual matters that go to an issue. Further and with respect, I do not see SZIMM as suggesting some inflexible attempt to define what an “issue” is. Rather that what may be an issue in the review is not an abstract concept, but one arising from, and integral to, the circumstances presented and within the concerns expressed in SZBEL about ensuring procedural fairness.

7. In the circumstances of the current case the applicant was plainly given a meaningful opportunity to be heard in relation to the issue of relocation. After all, the Tribunal’s conclusion that the applicant did not fall within the Convention definition of “refugee” was squarely predicated on the basis, as discussed at the hearing, that he could reasonably and practicably relocate within Pakistan and thereby avoid the risk of serious harm that would otherwise befall him in his home location.

8. The factual matters that go to that issue, including the applicant’s capacity to find work, were discussed at the hearing. The Tribunal specifically raised with the applicant his “work experience” and relevant capacity in that context (see T 24, line 6).

9. I should also note that, on any plain reading of the transcript of the hearing, the applicant’s objections to relocation appeared to be centred on the proposition that the Taliban would find him anywhere in Pakistan and that he could easily be found because he would be “… easily recognised anywhere in Pakistan” (T 24, line 18).

10. In its analysis, the Tribunal squarely dealt with the applicant’s objections to relocation (SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415). That included, importantly in light of the applicant’s complaint now to the Court, the matter of his being “unable to work” if he were to relocate in Pakistan. That matter was also raised in the submissions by his adviser, received by the Tribunal on the day before the hearing (CB 131 and CB 134). Although, again, even here the concern or objection to relocation was the capacity of the Taliban to find the applicant anywhere in Pakistan.

11. In these circumstances, I cannot see that the applicant was not given a meaningful opportunity to be heard, not only on the issue of relocation but on the elements arising from the substratum of facts that informed the Tribunal’s analysis and conclusion (see the Tribunal’s analysis on the issue at [100] at CB 177 to [105] at CB 179, specifically in relation to the matter of the applicant being “… in a favourable position in finding employment” ([105] at CB 179)).

12. When properly seen in this context, what the applicant now seeks to characterise as an “issue” in the review, namely the reference in the STARTTS letters to his capacity to undertake employment is, in light of the above, simply a piece of evidence going to the matter of his relocation.

13. On its face, it was certainly open to the Tribunal to give the STARTTS letters little weight as they were clearly focussed on the “current” (as at 12 May 2011 and 26 June 2011), and said nothing about the foreseeable future, let alone the impact of relocation within Pakistan. The weight to be given to evidence before it is, of course, a matter for the Tribunal in the exercise of its jurisdiction.

14. As was submitted, and relied on, by the Minister, the Full Federal Court said in Minister for Immigration & Citizenship v Applicant  A125 of 2003 [2007] FCAFC 162; (2007) 163 FCR 285 at [88]:

    “s.425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s.424A(1) into s.425.”

    The Tribunal raised the dispositive issue in this review with the applicant at the hearing.

15. It is also important to note that even if it had not done so, no error as identified in SZBEL arises. That is because relocation was a live issue as a result of the delegate’s decision (CB 93):

    “Even if the applicant continued to fear harm from the Taliban in Battagram, I am satisfied that the applicant could reasonably relocate to another area with Pakistan outside of Battagram and thereby avoid any real chance of persecution from the Taliban. I find that the applicant would not face a real chance of serious harm from the Taliban for reason of being a family member of his father outside his home area of Battagram.”

16. Given the applicant’s representative’s pre-hearing submissions, it is clear that they understood that relocation was an issue in the review (CB 134).

17. But even further, at the hearing the Tribunal raised the matter of employment. On any authority relied on by the applicant now, the Tribunal met its procedural fairness obligation. Both the “issue” and a relevant factor going to that issue, which was one of a number of factors, were plainly raised at the hearing. Ground one is not made out.

Ground Three

[Noting that ground two was not pressed.]

1. Ground three asserts that the Tribunal’s finding that the applicant could relocate within Pakistan was “arbitrary, capricious or unreasonable” with reference to the requisite level of satisfaction required by s.65 of the Act.

2. The particulars to the ground appear to suggest an inconsistency between the Tribunal’s apparent acceptance of the opinions expressed in the two STARTTS letters and its ultimate conclusion (CB 146 to CB 147). That is, that the applicant was “currently” incapable of undertaking paid employment in Australia, yet the Tribunal gave “little weight” to those letters in relation to the applicant’s ability to undertake employment if he returned to Pakistan, a country where he claimed to fear being killed by the Taliban.

The Submissions

1. In written submissions the complaint was referred to as “the unreasonableness issue”. Further, and following oral submissions, I ultimately understood the applicant to rely on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) (at [40] and [130]) for the proposition that the Tribunal’s analysis and relevant findings were not a matter on which minds may differ. The error was said to be in isolating the “professional diagnoses” from the context of the applicant’s claims such that the Tribunal’s reasoning met the description of irrational and capricious and not based on logical grounds.

2. I should note that in oral submissions the applicant’s counsel appeared ambivalent about whether the Tribunal’s approach could be described as capricious (“I wouldn’t go so far as to say the finding was capricious”).

3. In any event, the detail of the argument as ultimately presented is that the Tribunal’s treatment of the STARTTS letters was unreasonable and irrational on two bases. First, the Tribunal’s decision to place little weight on the documents. Second, the Tribunal’s failure to consider those documents in relation to the other issues it was required to determine. Specifically whether the applicant was capable of being employed if he returned to Pakistan.

4. The thrust of the applicant’s argument was that the Tribunal had before it two letters which attested to the applicant’s mental health impediments and emotional state as at 12 May 2011 and 26 July 2011, and the impact of those mental health difficulties on his ability to work in Australia. The Tribunal accepted those letters and the assessment contained therein of the applicant’s clinical presentation and employment capabilities. However, the Tribunal found that the letters had been prepared at a particular time, and for a particular purpose, and, as such, little weight was afforded to them by the Tribunal. The applicant submitted that the Tribunal’s decision to place little weight on those letters simply because they were prepared for a “particular purpose”, was irrational and unreasonable.

5. Further, in making that finding the Tribunal, unreasonably and irrationally, failed to consider the consequences that flowed from the symptoms presented in those letters. In particular given the applicant’s clinical presentation and its impact on his ability to work in Australia, a country in which he felt safe, the Tribunal acted unreasonably in failing to consider the impact of the applicant’s mental health symptoms on his ability to obtain employment in Pakistan, a country in which he was fearful of harm.

6. Given those letters, the applicant submitted that minds could not differ as to the necessity for the Tribunal to consider the impact of the applicant’s mental health symptoms on his ability to work if he returned to, and relocated within, Pakistan.

7. In relation to the first complaint, the respondent submitted that the Tribunal’s decision to place little weight on the STARTTS letters was reasonably open to it on what was before it. The Tribunal had before it two letters prepared for the purpose of assessing the applicant’s eligibility for the “Asylum Seekers Assistance Scheme”. Each letter was based on a single consultation. They detailed the applicant’s “signs and symptoms” at that consultation without providing an “objective”, or clinical, diagnosis. In those circumstances, it was open to the Tribunal to place “little weight” ([106] at CB 180) on the documents. Particularly as the Tribunal was charged with a “forward looking” assessment (as to a well founded fear of persecution on return and in the reasonably foreseeable future – with reference, it is assumed, to Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379).

8. In response to the second complaint, the Minister submitted that the Tribunal was not required to, nor was it irrational or unreasonable that it not, consider the consequences that flowed from the STARTTS letters. First, those letters only went so far as to say that at the time they were prepared the applicant had presented with certain symptoms and that, in light of that presentation, he was unfit at that time to undertake employment in Australia. They did not suggest that that symptomology was going to be present in perpetuity, or even for a particular period of time. Nor did those letters concern themselves with considering the impact, if any, on the applicant of returning to Pakistan. In those circumstances, the letters did not have any “consequences” for the issues that the Tribunal was jurisdictionally charged to determine.

Consideration

1. I agree with the Minister, except in one particular. That is, the Minister’s submission to the Court that the applicant had given no indication that he would not be able to work in Pakistan. That submission is contradicted as a general proposition by submissions made to the Tribunal by the applicant’s representative just prior to the hearing (see CB 134.3).

2. The thrust of the applicant’s representative’s submission was that relocation was not reasonable, nor practical, because the “on the ground” strength of the Taliban was in the “entire country” (CB 133.9) such that the applicant:

   “… would have to live in hiding, unable to work, raise his family socialise or carry about his affairs freely. This is not an acceptable standard of living for any human being and is in clear violation of his human rights” (CB 134).

   [Emphasis added.]

3. However, what must immediately be noted is that the applicant’s inability to work was not said to be for any reason of incapacity arising from mental, emotional or psychological factors. Rather that, given the power and strength of the Taliban, he would have to hide and would therefore not be able to work.

4. It must be said that the applicant’s ground, and arguments in support of it, demonstrate a thin line between merits review and what may be said to be jurisdictional error arising from illogicality, irrationality in reasoning, which is clearly unjust, arbitrary, capricious or unreasonable.

5. I respectfully understand the joint judgment of Crennan and Bell JJ in SZMDS, when also seen in light of the approach taken in that case by Hayden J, to provide a clear direction as to the location of the line between the two sets of concepts.

6. In my respectful view, assistance and direction is also provided by Rares J in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 (“SZOOR”) at [15]:

   “[15] The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.”

7. Further, McKerracher J in SZOOR at [84] – [85]:

   “[84] In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):

   Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   [85] What was said by Heydon J at [78], cited above (at [54]), in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J.”

8. What must immediately be noted about the two STARTTS letters is their brevity and the absence of any explanation, or even reference, to the methodology employed in preparing the contents of the letters. They present as being formulaic.

9. It is also difficult to accept the applicant’s submission that those letters represent a “professional diagnosis”, unless perhaps that submission is only a reference to the fact they were signed by a “psychologist” and a “counsellor”. On their face, the letters reflect a list of symptoms that the applicant “reports”.

10. In any event, the thrust of the applicant’s complaint is that these “opinions” give rise to a claim that the applicant was unable to work because of the symptoms recorded in the letters. The Tribunal’s failure to consider that claim in the context of relocation in Pakistan was said to therefore be impugned because, as the applicant submitted, it was illogical, irrational and capricious to not then see that the applicant’s inability to work in Australia would affect his capacity to work in Pakistan, particularly where the “situation” in Pakistan was much “worse” for the applicant than in Australia.

11. What the applicant’s attack fails to understand is that, as set out above, claims of illogicality and irrationality cannot be used to simply import a preferred line of reasoning and outcome. The Tribunal’s analysis is not irrational simply because the applicant disagrees with it.

1. The Tribunal did not “take” a “professional disagnosis” in isolation of the applicant’s claims. It considered the letters from STARTTS. While minds may differ, it was plainly open to the Tribunal to take the view that the opinions contained a temporal focus and limitation. The words “… currently not capable of undertaking work …”, in the absence of anything else, say nothing about how long the state of affairs set out in the letters would last, let alone what would relevantly happen if the applicant were to return to, or relocate within, his home country.

2. As to the applicant’s rhetorically posed question (“And why is it relevant that the letters were prepared for a particular purpose?” – [16] of his written submissions), that question ignores the very contextual difference between the applicant being assessed for work in Australia (a country with which the applicant has no connection) while awaiting an outcome on his visa application and the applicant’s capacity to work in his home country some time later. A difference emphasised by the use of the word “currently” in both letters.

3. What is plain from the purpose and thrust of those letters is that the STARTTS personnel who authored the letters were not necessarily focused on whether the applicant was fit for work, although this was an element in answering the question of eligibility. The letters were plainly prepared in support of the application for financial assistance under the “Asylum Seekers Assistance Scheme”. I can take judicial note that that scheme is funded by the Australian Government, and implemented through the auspices of the Red Cross, which provides financial assistance to certain eligible refugee applicants while they are awaiting the outcome of their application for a protection visa.

4. The assessments in the letters were therefore focused on whether the applicant met the eligibility criteria for that financial assistance. That is clear on the face of both letters. It can hardly be said, given all of the above, as the applicant now suggests, that these were “substantive” “professional” “reports” on his capacity to work, let alone his capacity in the future in another country. Importantly, his own country.

5. Ground three is not made out.

Grounds Four and Five

The Submissions

1. Grounds four and five were put in the alternative to ground three. Both grounds assert that the Tribunal erred in failing to consider whether to seek a report or make an inquiry as to the applicant’s ability to engage in paid employment were he to return to Pakistan.

2. Ground four proposes that given that s.427(1)(d) of the Act empowers the Tribunal to “… arrange for the making of any investigation, or medical examination ...” that it thinks necessary, in the current case the Tribunal’s failure to consider whether it should exercise its power under that section was an error. Similarly, ground five asserts that by failing to consider whether to seek a report, or make an inquiry, the Tribunal adopted a procedure that was inconsistent with the requirements of natural justice. The applicant submitted that the Tribunal’s obligation to consider whether or not to commission a report arose from the STARTTS letters and the material within those letters.

3. Before the Court the applicant raised the additional complaint that the Tribunal’s failure to commission a report (as opposed to simply its failure to consider commissioning a report) constituted jurisdictional error. That was said to arise from the fact that, in the current case, there was “… an obvious inquiry about a critical fact, the existence of which [was] easily ascertained …” The failure of the Tribunal to make that inquiry was said to be sufficiently linked to the outcome of the review as to constitute a failure to review (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

4. It was submitted by Mr Karp that the applicant’s mental health, given the STARTTS letters, was integral to the Tribunal’s finding that the applicant would be reasonably able to relocate in Pakistan and was therefore a “critical fact” in the review. Further, in written submissions, the “obvious inquiry” was said to have been “… a simple letter to [the applicant’s] treating psychologist or STARTTS”. Before the Court, in oral submissions, the applicant asserted that the “obvious inquiry” that could have been made by the Tribunal was in the form of a letter to STARTTS or a request that the Department “psychologically” assess the applicant.

5. This latter was never developed in submissions and I therefore understood this passing reference to be a reference to s.427(1)(d) of the Act and the nature of inquiries that could be made by the Tribunal. At best therefore, this can only be seen as a reference to the Tribunal’s request to the Minister’s department to arrange for a report from the “treating psychologist”.

6. However in contrast there were (brief) references in the applicant’s written and oral submissions to his “treating psychologist”. This appears to be a reference to the clinical psychologist at TMHC (not the psychologist at STARTTS). That is a Ms “Mary Higson”. I note that before the Court, again in context adding to the confusion, the applicant made references to the “treating psychologist” as “he”. That is a male. The psychologist at STARTTS was a male. However, there was no suggestion that he was “treating” the applicant. Ms Higson appears to meet this description.

7. In particular, the letter provided by Ms Higson on 3 August 2012 (produced in duplicate at CB 143 and CB 144) provides that:

   “[The applicant] has attended appointment with me on 18/7/11 and 27/7/11 for assessment of his psychological symptoms. I have offered him four more sessions of psychological intervention. I will be able to provide him with a full report at the conclusion of my intervention.”

8. In relation to the first matter, whether the Tribunal was required to consider whether it should make an inquiry, the Minister submitted that that proposition had been rejected by the High Court in Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1; (2011) 241 CLR 594; (“SZGUR”) at 602 – 603.

9. With regard to any obligation on the Tribunal to make any inquiry, the Minister concurred with the applicant as to the relevant test (SZIAI at [25]). However, Mr Jones submitted that, in the current case, there was no “fact” that the Tribunal could have “easily ascertained”. Even if an inquiry had been made to STARTTS, as the applicant suggested in written submissions, that inquiry, although “easy”, would not have lead to, or involved, an easily ascertainable fact.

10. Rather, it would result in a subjective assessment, by a counsellor or psychologist, of the applicant’s symptoms and the predicted impact of those symptoms, if any, on his ability to gain employment if he were to return to Pakistan in the future. The Tribunal would then be required to consider that information, and assign weight to it. In that way, the Minister sought to distinguish the current case from SZGUR (at [23]) and SZMYO v Minister for Immigration & Citizenship (2011) 121 ALD 272 (“SZMYO”). [I note that the Minister formally submitted that SZMYO was wrongly decided – see further below.]

11. I should note that the Minister’s submissions in response made no direct, or specific, reference to the TMHC psychologist in this context. That is understandable given the applicant’s lack of precision in this regard. In any event, I took the Minister’s submissions above (particularly as set out at [93] above) to include a reference, in reply, to the “applicant’s treating psychologist”.

Grounds Four and Five: Consideration

1. There can be no dispute before this Court, given binding authority, that s.427(1)(d) of the Act is an empowering provision that imposes no general duty, or obligation, on the Tribunal (SZGUR and Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 (“Applicant M164/2002”) at [75]). The applicant submits as much (see [30] of his written submissions).

2. However, the applicant’s case relied on SZMYO (a matter arising in the Federal Court in an appeal from this Court). The Minister submits that SZMYO was wrongly decided. That submission by the Minister is patently unhelpful in the current case. It is trite to say it is not open to this Court to, in any way, pursue that line of submission. It is obvious that it is a submission in the formal sense put for another purpose. While the conduct of his litigation is, of course, a matter for the Minister, in my view it is not helpful to the administration of justice in this Court to leave unattended judgments of a superior court which plainly bind this Court and with which he plainly, and I assume respectfully, disagrees, and to then come to this Court and make that submission.

3. This Court therefore must proceed to apply SZMYO, and of course also other relevant High Court and Federal Court authorities.

4. In that regard, I note than in SZGUR (at [22], with reference to WAGJ v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277), the High Court said that there is no duty to consider whether to exercise the inquisitorial power under s.427(1)(d).

5. That leaves the question of the duty of inquiry under s.427(1)(d). Here the relevant High Court authorities explain (SZGUR at [23] with reference to SZIAI at 1129):

   “In Minister for Immigration & Citizenship v SZIAI the Court considered the implications of its designation, in earlier decisions, of Tribunal proceedings as ‘inquisitorial’. As was pointed out in that case, the term ‘inquisitorial’ has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the Tribunal's statutory functions. As the plurality judgment stated:

   ‘The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.’ (footnote omitted)”

   [Footnotes omitted.]

6. I respectfully understand the High Court authorities to put that, at its highest, the duty to inquire is a possible obligation which, if not exercised, may lead to jurisdictional error. It is, as was said in SZMYO (at [59]) and with reference to Minister for Migration and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 (at [43]), that s.427(1)(d) of the Act is an “… empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed and to decide”.

7. What is also clear is that the context from which the obligation may arise is (SZMYO at [61] and with reference to Applicant M164/2002 at [76]):

   “…if the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power under s 427(1)(d) and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding.”

8. Therefore, having regard to the material before the Tribunal in the current case, and the relevant circumstances, I cannot see that these give rise to any obligation on the Tribunal to further inquire. The circumstances and the context of the current case are distinct and sufficiently distinguishable from SZMYO.

9. In SZMYO, in my respectful view, it was clear that at least a part of the circumstances which the Court found gave rise to the need for the Tribunal to make further inquiry was the relevance of such inquiry to s.424A and matters of procedural fairness (see in particular, SZMYO at [63]).

10. In brief, the circumstances of SZMYO were, relevantly, that the applicant had been interviewed at the airport on arrival in Australia. Before the Tribunal was a report of that interview. In SZMYO (at [63]) the Court stated:

    “In my view, the Tribunal ought to have exercised its power under s 427(1)(d) to require the Minister to arrange for an investigation to be made and then report back to the Tribunal. As I have said, it seems likely that this would have unearthed the audio recording of the Airport Interview which could have been provided to the Tribunal. This approach would have provided the appellant with a meaningful opportunity to comment or respond to the s 424A letter from the Tribunal. That after all, was what the appellant said he wanted the full record for: ‘to enable him to respond to the Tribunal’s letter’.”

    [See also and further at [66] of SZMYO.]

11. Applying the “criteria” identified by the High Court in SZIAI, and endorsed in SZGUR, it could be said therefore that in SZMYO the “critical fact” that could be “easily ascertained” by an “obvious inquiry” was the existence of the audio recording of an interview which was known to have taken place at the airport. An inquiry that the Court said in SZMYO would have been directed to the applicant’s capacity to address the opportunity to comment provided to him in the first place by the Tribunal in its “s.424A letter”.

12. In the current case, what is immediately obvious is that what is said by the applicant to be “easily ascertained” is directed more to the recipient of any investigative request by the Tribunal (STARTTS or the applicant’s treating psychologist), rather than to what I respectfully understand from the authorities to be the focus of any such inquiry. That is, the “easily ascertainable” element should be directed to a “critical fact” in the review.

13. While the Tribunal could have obviously asked anything of the STARTTS personnel or the TMHC psychologist, what the applicant has failed to satisfactorily show or explain in the current case is how, in the circumstances presented, the STARTTS personnel or the TMCH psychologist could have “easily ascertain[ed]” (to reapply that phrase) whether the applicant could work in Pakistan, even if that were seen as a critical fact in the review.

14. In the circumstances, that could not have easily been ascertained through the STARTTS personnel on what they said was before them. Their “opinion” was based, on their own assertion, on what the applicant himself had told them. Their focus was limited in that sense. Further, for the reasons referred to above, it was also limited in purpose and in temporal application.

15. There is nothing in either, very brief, STARTTS letter to suggest that any detailed psychological testing or assessment had been conducted. As for the counsellor, in spite of the applicant’s submissions to the contrary (see at [30] above), there was nothing in what was presented to the Tribunal that he had qualifications or relevant experience to make any such psychological assessment such that it could be said to be expert, and therefore of greater assistance to, or weight for, the Tribunal.

16. Further, in relation to the applicant’s “treating psychologist” the applicant’s submissions here were scant. But there was nothing before the Tribunal to suggest that any inquiry could have easily ascertained whether the applicant was able, in light of his psychological difficulties, to work in Pakistan. While the letter from the psychologist at TMHC provides that a “full report” would be provided to the applicant if he were to present for further appointments, that letter makes clear that that report will not be “provided” until the “conclusion of [the psychologist’s] intervention”. That is, at best, after the applicant has attended four more sessions with that psychologist. The letter provides that the applicant had been “offered” four more sessions. It does not indicate the date of those future appointments, nor for that matter does it indicate whether the applicant even accepted the “offered” appointments.

17. Further, from that letter, it is not clear what that “full report” will be directed toward, or for what purpose it was being generated.  That is, even if the report was capable of being produced as a result of a request made by the Tribunal, it is not clear whether that report would have considered, or addressed, the applicant’s ability to work if he returned to Pakistan. Nor his ability to work if he was required to relocate within Pakistan. Nor that the psychologist was able to professionally provide such a report as, in particular, for example, it would require some knowledge of relevant conditions in Pakistan.

18. In SZMYO, the inquiry was directed to the Secretary to the Minister’s department to investigate whether his airport officers had an audio recording of the airport interview. On its face, a simple question to pose, and to which a simple, obvious response may be given.

19. In the current case, there is obvious brevity in what the STARTTS personnel did in relation to the applicant, and a lack of any real explanation or presentation of what psychological, or counselling techniques or devices were employed to measure, or test, what had been told to them by the applicant. This results in the inquiry (if it were to be made) falling outside the “criteria” that it be “obvious” and the result “easily ascertained”. Given also that the STARTTS letters were focussed on whether the applicant could work in Australia at a particular time (removed from when he would return to Pakistan) the STARTTS personnel would have most likely required, if approached again by the Tribunal, to have conducted at least further interviews with the applicant and employed investigative measuring techniques apparently absent in their initial presentation.

20. While the letter from the psychologist at TMHC indicates that a “full report” would be provided to the applicant, it stipulates that that report would not be provided until the psychologist had completed her “intervention”. That is, that the report was not, as at 3 August 2011 (that is 2 days prior to the Tribunal hearing) in existence. Further, that that report would not be in existence until some time after the applicant had attended a further four “offered” (it is unclear whether they had been accepted by the applicant) appointments.

21. Further, had any inquiry been made to STARTTS personnel it would not have been to produce a report known to already be in existence. Nor would it be to augment their letters from material already known to them, given that what is stated in the letters, their focus was not on the future, or the applicant’s circumstances in Pakistan. Even at best, any inquiry would have required some further extensive work. It could not be said that a simple letter to STARTTS would produce the result argued for now by the applicant.

22. In any event, the former points, alone, put the circumstances of the current case outside of the “test” in SZIAI in terms of “easily ascertained”.

23. In SZMYO the existence of an airport interview was already known. The obvious inquiry as to what the applicant had actually said at the interview could easily be revealed on production of the audio recording. That is not analogous to the current circumstances where no such comparable elements were in existence at the relevant times before the Tribunal.

24. What must not be forgotten is that what the Court found that made the inquiry in SZMYO obvious, and the result of inquiry easily ascertained, was that the inquiry was directed to a known and accepted fact. That is the existence of an airport interview. Noting of course how this was said to be a “critical fact” in the review because it was said to be linked to the applicant’s capacity to respond to the Tribunal’s own (procedural fairness) letter to him in such a way as to make that opportunity meaningful.

1. In the current case, the letters from STARTTS and TMHC, their provenance, the instigation for their generation, and indeed their presentation to the Tribunal, were all within the applicant’s hands. This was not so in SZMYO. Given the former, the question must remain as to why the applicant himself, or his representative on his behalf, did not make this “inquiry” if it was so “obvious”. After all, given the delegate’s decision, the applicant and his representative were alive to the determinative issue of relocation in the review. If the matter of his employment in Pakistan if he were to return was in his view, such a critical matter in the review then the opportunity was there for him to have pursued it. The representative made submissions on relocation to the Tribunal prior to the hearing. In my view, that was the opportunity for the applicant to pursue whatever could assist his case.

2. Even on the approach in SZMYO, the applicant here was not denied a meaningful opportunity to put his case to the Tribunal. That he, or his adviser, chose not to do so must be seen in light of the applicant’s own obligation to put his case such as to enable the reaching of the requisite level of satisfaction under s.65 of the Act.

3. I do not respectfully comprehend any of the relevant authorities to oblige the Tribunal to continue to make inquiries on the applicant’s behalf to the point of exhaustion of any, and every, remote possibility such as to relieve him of the task to “properly” state his case.

4. Grounds four and five are not made out.

Conclusion

1. None of the grounds of the further amended application to the Court reveal jurisdictional error on the part of the Tribunal. In those circumstances, the application should be dismissed. I will make an order accordingly.

I certify that the preceding one-hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 21 September 2012