SZSJG v Minister for Immigration
[2013] FCCA 606
•24 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSJG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 606 |
| Catchwords: PRACTICE AND PROCEDURE – Observations on the role of counsel providing advice under the Minister’s panel advice scheme. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480 SZBSO v Minister for Immigration [2005] FCA187 SZQJB v Minister for Immigration [2013] FCA 10 SZQRP v Minister for Immigration [2012] FCA 885 |
| Applicant: | SZSJG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2915 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr Z Chami Clayton Utz |
ORDERS
The application as amended is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2915 of 2012
| SZSJG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 8 November 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Pakistan and had made claims of political persecution. The following statement of background facts relating to the applicant’s claims and the Tribunal decision on them is derived from the Minister’s written submissions.
The applicant is a citizen of Pakistan[1] who arrived in Australia on 2 June 2008[2].
[1] Court Book (CB) 6
[2] CB 6
On or about 23 May 2011 the applicant applied for a protection visa[3]. On 15 November 2011 the applicant attended an interview before a delegate of the Minister[4]. On 24 November 2011 the applicant's protection visa application was refused[5].
[3] CB 1-36
[4] CB 67
[5] CB 56-65
On or about 5 December 2011 the applicant applied to the Tribunal for merits review of the delegate's decision[6].
[6] CB 66-69
On 10 April 2012 the applicant attended a hearing before the Tribunal[7]. On 11 April 2012 the applicant's migration agent provided a written submission to the Tribunal[8]. On 8 November 2012 the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa.
[7] CB 95-96
[8] CB 106-107
Applicant's claims
The applicant provided a written statement outlining his claim to invoke Australia's protection obligations[9] and supplemented those claims orally before the delegate and Tribunal[10]. Those claims were, in essence:
[9] CB 1-3
[10] see CB 57-58; 118-127
a)he hailed from Bogara village, Karak district in the province of Khyber Pakhtunkhwa (formerly the North West Frontier Province). From 2000 to 2007 he was a teacher at the Khyber Public School & College in Takhte Nasrati, Karak;
b)in 1990, at age 17, he had become a member and follower of the Awami National Party (ANP), a political party opposed to the Taliban. Prior to his membership, at age 14 or 15, he had accompanied his family to party meetings. He had participated in the ANP at college and university;
c)his (now deceased) grandfather had been the ANP president of the Karak district in the 1970s and 80s. His father had also been involved with ANP but not to the extent that his grandfather had, and had ceased his involvement after the applicant's grandfather died;
d)he had motivated people against the Taliban in public. He had been the subject of three incidents involving the Taliban prior to his departure for Australia in 2008, namely:
i)in 2000, he had been verbally threatened by the Taliban and warned not to motivate students against the Taliban;
ii)in 2005 the Taliban had told him to leave the ANP. He said that that warning was given to his father and family members and 15 to 20 members of the Taliban had visited his college and spoken to him directly, they being armed with Kalashnikovs;
iii)in February 2008 he was threatened by 20 to 25 armed members of the Taliban who had visited the ANP's office. The threat was delivered to 10 members of the ANP who were at the time holding a secret meeting;
e)as a result of the above, his family advised the applicant to leave Pakistan so he came to Australia in July 2008;
f)in February 2011, thinking it would be safe for him, he returned to Pakistan to assist his daughter to receive eye treatment. Six to eight days after his return, the Taliban visited him and told him that they remembered his past involvement with the ANP, knew he had been in Australia and considered him to have adopted "western thinking". He was threatened by the Taliban to suffer the same fate as his cousin Captain Muneeb, who had been killed in combat by the Taliban in 2009;
g)on 9 March 2011, while taking his daughter to the doctor, he was attacked by 30 Taliban and beaten unconscious with sticks. He received medical treatment. In fear for his life, he returned to Australia a month later via Wah Cantonment, Multan and Bannu.
The applicant also claimed that he had not applied for protection during his first visit to Australia because he thought that the Taliban would forget him and that the situation would become clearer in years to come.
Tribunal's findings
The Tribunal accepted that[11]:
a)the applicant's family had been involved in the ANP for several generations;
b)the applicant's grandfather was the president of the party in the Karak district;
c)the applicant joined the party in 1990 aged 17 and was active in the party in his local area between 2000 and July 2008 when he departed for Australia;
d)he was a "simple member" of the ANP and did not hold any position in the party;
e)he had talked to people in his village and in other villages and to students at the school where he worked about the ANP;
f)he had attended meetings in Takht-e-Nasrati at which 60 to 70 other people were in attendance, and had sometimes attended meetings in Karak city.
[11] CB 131 at [83]
The Tribunal did not accept that the Taliban was powerful or in the majority in the applicant's area before he came to Australia in July 2008, nor that the applicant was threatened or attacked by the Taliban as he claimed[12]. The Tribunal relied on information that suggested that Karak was spared the violence that affected other areas until an attack on a police station in Karak town in February 2010. The Tribunal found that the Member of the National Assembly (MNA) from Karak and one local Member of the Provincial Assembly (MPA) belong to the Jamiat-Ulema-Islam Fazlur Rahman Group (JUI-F), part of the coalition government opposed to the Taliban, and that the other MPA had joined the ANP after being elected[13]. As such, the Tribunal rejected the applicant's claims that support for the JUI-F in his home area equated to Taliban domination in that area, as the applicant claimed[14].
[12] CB 131 at [84]
[13] CB 131 at [86]
[14] CB 131 at [86-final sentence]
The Tribunal accepted that certain incidents involving the Taliban had occurred, including the involvement of Shah Abdul Aziz, a former MNA from Karak, in the kidnapping of a Polish engineer in Attock in September 2008 who was subsequently beheaded, and in storming the Gurguri oil field in Karak. The Tribunal accepted that Shah Abdul Aziz supports the Taliban but, as the applicant conceded, that person was no longer the MNA of Karak and was not a candidate at the 2008 election[15].
[15] CB 131 at [85]
The Tribunal accepted that various ANP politicians, local leaders in other districts and the son of the ANP district president in Karak had been kidnapped or killed by unidentified people. However, given the applicant's lower level of involvement in the ANP and apparent lack of influence in his area (having remained the single ANP member in Bogara prior to 2008), the Tribunal found it difficult to accept that the applicant would have been threatened by the Taliban, told to leave the ANP and to stop speaking in public against the Taliban, as he claimed[16].
[16] CB 132 at [88]
The Tribunal found it relevant that the applicant had claimed to have come to Australia initially to save himself and his family yet had returned to his home in Bogara in March 2011. Noting that the applicant claimed to have monitored the situation in Pakistan while he was in Australia, the Tribunal found it difficult to accept that the applicant thought that the situation in Pakistan would be better for him if he had genuinely feared for his safety from the Taliban when he initially left Pakistan in July 2008[17].
[17] CB 132 at [89]
The Tribunal found it difficult to accept the applicant's account of the 9 March 2011 incident at which he claimed he was attacked by 20 to 30 Taliban. In respect of the applicant's claim that the Taliban had threatened to kill him like his cousin Muneeb, the Tribunal referred to information produced to the department which indicated that his cousin was an officer of the Pakistani army who was killed in military action fighting the Taliban in May 2008-2009. The Tribunal did not accept that the death of his cousin in military action could have been a point of reference for the Taliban in respect of the applicant[18].
[18] CB132-133 at [91]
The Tribunal also found it difficult to accept the applicant's account of his subsequent movements. The Tribunal noted the length of time he had spent in Pakistan after the claimed incident on 9 March 2011, including time in Bannu (a district next to Karak). The Tribunal considered that this suggested that the applicant was not really in fear at all and was “just travelling around and visiting friends”[19].
[19] CB 133 at [92]
The Tribunal considered documentary evidence provided by the applicant, including his ANP membership card, a copy of the letter dated 19 May 2011 from the chairman of the ANP in Takhte Nasrati, and a letter dated 18 May 2011 from Associate Professor of Medicine in Peshawar stating that the applicant had been brought to the clinic on 9 March 2011, had been unconscious and remained so for two hours. The Tribunal noted its acceptance of the applicant's membership of the ANP but did not accept that the applicant was an important or influential member of the ANP, finding that he was only a “simple member”. The Tribunal did not accept that the Taliban would consider that the applicant would involve other people with him or that people would join him, nor that the applicant was threatened or attacked by the Taliban before he left Pakistan in July 2008. The Tribunal did not accept that the applicant would have thought he could return safely to his home in Bogara in March 2011 if he had genuinely feared for his safety from the Taliban when he initially left[20].
[20] CB133) at [94]
The Tribunal gave greater weight to the problems that it found with the applicant's evidence regarding the attack on him by the Taliban on 9 March 2011 than a letter dated 18 May 2011 from the Associate Professor of Medicine in Tashua. The Tribunal did not accept that the Taliban threatened to kill the applicant like his cousin Muneeb given that his cousin had died in a military action. For that reason, the applicant did not accept that the applicant had told the truth about his movements after the supposed attack on him. The Tribunal did not accept that the applicant was attacked by the Taliban on 9 March 2011 and left unconscious, nor that he then spent time travelling in Pakistan rather than spending time with his family[21].
[21] CB133 at [91] and [95]
The Tribunal did not accept that the applicant had ever been threatened or attacked by the Taliban because of his membership of the ANP, his opposition to the Taliban, occupation as a school teacher or his western thinking. The Tribunal did not accept that the applicant had ever attracted the attention of the Taliban[22].
[22] CB133 at [95]
The Tribunal accepted that since the applicant first came to Australia the Taliban had carried out attacks on government or economic targets in Karak such as the police station and the Gurguri oil field. The Tribunal also accepted that there had been attacks on some ANP meetings in which people had been killed or injured. However, the Tribunal considered that the chance that the applicant may happen to be at such a meeting which was attacked was very remote. The Tribunal did not accept that there was a real chance that the applicant would be threatened, attacked, kidnapped, killed or otherwise persecuted by the Taliban for reasons of his real and imputed political opinion (based on his membership of the ANP, his opposition to the Taliban or his western thinking) or his membership of any particular social group (such as the ANP, school teachers or his membership of his family based on their involvement in the ANP for several generations and his relationship with his grandfather in particular) if he returned to Bogara now or in the reasonably foreseeable future and continued to express political views and attend meetings as he had in the past[23].
[23] CB134 at [98]
The Tribunal considered the complementary protection criterion and found that there was only a remote chance that the applicant would be the victim of criminal acts or terrorist attacks if he returned to Pakistan. The Tribunal did not accept on evidence before it that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was a real risk that he would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture, that he would be subjected to cruel or inhuman treatment or punishment or that he would be subjected to degrading treatment or punishment as defined[24].
[24] CB134-135 at [99]-[100]
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations. It affirmed the delegate's decision accordingly.
The present proceedings
These proceedings began with a show cause application filed on 10 December 2012. The applicant now relies upon an amened application filed on 20 March 2012. There are three particularised grounds in that application:
1. The Tribunal erred by making factual findings that [were] illogical, irrational and/or without evidence.
Particulars
a) The Tribunal found that the Applicant had never attracted the attention of the Taliban at paragraph 98 of the decision; and that the Applicant had never been attacked by the Taliban;
b) The Tribunal accepted that the Applicant was a member of the ANP in Takhte Nasrati from 1990 to July 2008; had been active in the party in his local area between 2000 and July 2008; his family had been active in the ANP for several generations; and his grandfather was president of the party in District Karak at paragraph 83 of the decision;
c) The Tribunal accepted that the Applicant had expressed his political views to people in his village and in other villages; to students at the school he had attended; and attended political meetings at paragraph 97 of the decision;
d) The Tribunal was provided with extensive country information on the activities of the Taliban in District Karak;
e) The Tribunal was provided with documentary evidence dated 19 May 2011 from the Chairman of the ANP that the Applicant was an important member of the ANP in Takhte Nasrati and his life was not safe in Pakistan due to his strong opposition to the Taliban. The Tribunal did not find that this document was a forgery;
f) The Tribunal’s finding that the Taliban was not “powerful” in Karak at paragraph 84 was in direct contradiction to the evidence provided by the Applicant to the Tribunal.
2. The Tribunal did not correctly inform itself of the test of whether the Applicant had a well-founded fear of persecution for a Convention reason.
Particulars
a) The Tribunal misunderstood the correct test by placing its focus upon whether or not the Applicant was a “high profile” member of the ANP, rather than whether the Applicant was an active member of the ANP over a long period of time, whose family were also members of the ANP;
b) The Tribunal misunderstood the correct test by failing to properly consider whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group, being a former teacher who had spent time in Australia with liberal democratic political views that the Taliban would consider repugnant;
c) The Tribunal misunderstood the correct test by failing to properly consider whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group, being a relative of a deceased Pakistani army officer in circumstances where the Taliban is opposed to the army of Pakistan;
d) The Tribunal misunderstood the correct test by focussing upon its finding that the Applicant never attracted the attention of the Taliban (at paragraph 97 of the decision) rather than whether there was a real risk the Applicant would attract the attention of the Taliban by reason of his political views and membership of a particular social group.
3. The Tribunal did not properly consider all essential integers of the Applicant’s claim.
Particulars
a) The Tribunal did not properly consider whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group, the relevant social group being persons who had been active members of the ANP over a long period of time, whose family were also members of the ANP, whose political and social views are repugnant to the Taliban;
b) The Tribunal did not properly consider the relevance of the Applicant having spent time in Australia; and being a former school teacher who held liberal democratic political and social views repugnant to the Taliban to the issue of whether the Applicant had a well-founded fear of persecution by reason of his membership of a particular social group.
The amended application was prepared by Mr Gregory Sarginson of counsel. Mr Sarginson provided advice to the applicant under the Minister’s panel advice scheme. Advisers under that scheme are paid only a modest sum for the provision of advice. In circumstances where counsel feels that an arguable case should be reflected in an amended application and assists in the preparation of that amended application, a question arises whether counsel should appear to argue it. Counsel, of course, are not a charity. They are entitled to make commercial judgements. Nevertheless, there is no doubt that the applicant in this case was at a particular disadvantage because he was completely unable to advance any argument in support or the technical issues raised in the amended application. I consider that in circumstances where counsel advises that an amended application providing detailed grounds should be prepared and filed, counsel should also consider whether the interests of the administration of justice necessitate counsel providing some assistance to the Court in dealing with those grounds.
I have before me as evidence the court book in two volumes filed on 28 February 2013 19 June 2013.
The first ground in the amended application is that the Tribunal erred by making factual findings that were illogical, irrational and or without evidence. The particulars challenge the Tribunal’s fact-finding and its reasoning process. The question is, however, whether that contest rises above a simple dispute over the merits of the Tribunal decision. Claims of political persecution in Pakistan often raise difficult factual issues. It is well known that there is political violence in Pakistan. The country also faces an insurgency in which the Taliban plays a significant role. The applicant’s claims required and received a careful consideration by the Tribunal. That consideration addressed the particular circumstances of the applicant’s past. I do not accept the contention that the Tribunal’s factual finding was illogical or irrational or without evidence.
The second ground asserts that the Tribunal did not correctly inform itself of the test of whether the applicant is a refugee. The elements of the test are well known and the Tribunal referred to them. The particulars of the second ground suggest that the application of the test should have led to a different outcome. However, I do not accept that the assertion rises above a contest over the merits of the Tribunal’s decision.
The third ground asserts a failure to properly consider all integers of the applicant’s claim. The particulars assert a failure to consider a particular social group. There are two difficulties with this ground. The first is that ground 3(a) is based upon facts which, if accepted as establishing persecution, would have supported the applicant’s political claim. In other words, the addition of a second nexus would add nothing to the claim. The second ground also suggests a claim arising out of the applicant’s experience in Australia. I do not accept that any such claim was expressly made by the applicant despite a passing reference to “western thinking” in the applicant’s original claims[25] and the applicant’s evidence at the Tribunal hearing. To the extent that such a claim arose squarely from the material before the Tribunal, I am satisfied that the Tribunal dealt with it at [98] of its reasons[26]:
I accept that since the applicant first came to Australia the Taliban have carried out some attacks on government or economic targets in District Karak such as the police station in Karak and the Gurguri oil field. I also accept that, as referred to by the applicant, there have been attacks on some ANP meetings in which people have been killed or injured. However I consider that the chance that the applicant may happen to be at such a meeting which is attacked in this way is very remote. I do not accept that there is a real chance that the applicant will be threatened, attacked, kidnapped, killed or otherwise persecuted by the Taliban for reasons of his real or imputed political opinion (based on his membership of the ANP, his opposition to the Taliban or his ‘western thinking’) or his membership of any particular social group (such as the ANP, school teachers or his membership of his family based on their involvement in the ANP for several generations and his relationship with his grandfather in particular) if he returns to his home in Bogara in District Karak now or in the reasonably foreseeable future and continues to express his political views and to attend meetings as I have accepted he has in the past. I do not accept that the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention if he returns to Pakistan now or in the reasonably foreseeable future.
[25] CB 2
[26] CB 134
I otherwise agree with and adopt the Minister’s submissions in relation to the grounds in the amended application.
Ground 1
Ground 1 provides six particulars. However, it is unclear from those particulars which factual findings are alleged to be illogical, irrational and/or made without evidence.
The threshold for illogicality, irrationality and no evidence as a basis for jurisdictional error is high. This was illustrated recently by Tracey J in Shop, Distributive and Allied Employees Association v National Retail Association (No 2)[27]. There, at [31]-[34] his Honour said:
The “no evidence” ground is available where legislation imposes a pre-condition to the exercise of jurisdiction and it is alleged that there was no evidence before the decision-maker which justified a finding that the pre-condition existed. The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 (per Gummow and Hayne JJ). The ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”: see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 (per Weinberg J). The point is put more bluntly in Aronson, Dyer and Groves, “Judicial Review of Administrative Action” (Fourth Edition) at 259 where the learned authors say that the “no evidence” ground “cuts out when even a skerrick of evidence appears.”
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ explored the development of “illogicality”, “irrationality” and “unreasonableness” as grounds of judicial review and the circumstances in which they might give rise to jurisdictional error. Their Honours stressed the need for judicial restraint when reviewing decisions of tribunals. Mere disagreement, even “emphatic disagreement”, with the decision under review must not be equated with irrationality or illogicality. Their Honours went on (at 648):
… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, 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.
The correct approach, their Honours said, was “to ask whether it was open to the [t]ribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.” If, on that material, “a logical or rational decision maker could have come to the same conclusion as the [t]ribunal” a claim of jurisdictional error will not be made out.
In Ryan (at 87) Basten JA (with whom Spigelman CJ and Santow JA agreed) held that a similar approach should be adopted where it is alleged that there is no evidence which supports a decision-maker’s determination that he or she is satisfied that a particular state of affairs exists. In such cases the appropriate question for the reviewing court is “whether there was any material before the [tribunal] which was reasonably capable of supporting a state of satisfaction in respect of the relevant pre-conditions.”
[27] [2012] FCA 480
By Ground 1 the applicant appears to claim that:
a)the Tribunal's finding particularised at (a) (Applicant Profile Finding) was irrational, illogical or made without evidence in view of the findings particularised at (b) and (c);
b)the Tribunal's finding particularised at (f) (Taliban Influence Finding) was irrational, illogical or made without evidence in view of the findings particularised at (d) and (e).
The Applicant Profile Finding was in essence that the applicant did not have the profile within the ANP to have been, or to be likely to be, a target for the Taliban. That finding was based on the following:
a)the applicant admitted that he was a “simple member” of the ANP and had not held any position within that party[28];
b)he had not been particularly influential in recruiting other people to the ANP, given that he had remained the single member of the ANP in his village for the length of his membership[29];
c)although there were reports of various ANP politicians, local leaders in districts other than Karak and the son of the ANP district president in Karak having been kidnapped or killed by unidentified people, the applicant did not have the profile to attract similar consequences for himself[30];
d)subjectively, the applicant did not hold the fear he claimed, given he had returned to Pakistan in 2011 despite having kept abreast of the situation in Pakistan whilst he was in Australia[31]. The Tribunal found that, if he had genuinely feared for his safety as claimed, it was difficult to believe that he would have returned to Pakistan in the hope that the situation had changed for him (CB 132 at [89]-[90]).
[28] CB 121 at [36]
[29] CB 123 at [45]; 132 at [88]
[30] CB 132 at [88]
[31] CB 132 at [89]
In my view, the Applicant Profile Finding represents a logical and rational conclusion based upon the matters referred to at paragraph 31. The finding was open on the evidence and is consistent with and absorbed the factual findings particularised at (b) and (c) to Ground 1. The Applicant Profile Finding was made on the basis of the applicant's evidence and on the Tribunal's reasoning processes, and not in the absence of evidence, as alleged.
Particular (e) to Ground 1 refers to a letter from the Chairman of the ANP dated 19 March 2011 which claimed that the applicant was “an important member of the ANP in Takhte Nasrati and his life [is] not safe in Pakistan”. It is evident that the Tribunal preferred other evidence provided by the applicant to that letter for the reasons summarised above[32]. To the extent that the applicant seeks to impugn the Applicant Profile Finding on the basis of particular (e), I accept that the weighing and assessment of evidence is a matter for the Tribunal exclusively. In SZQRP v Minister for Immigration[33] at [15], his Honour Flick J summarised the relevant principles as:
[32] CB 133 at [94]
[33] [2012] FCA 885
Second, the “weight” to be given to the evidence before it is a matter for the Tribunal and not a matter for the Federal Magistrates Court or this court on appeal. The “weight to be given to various considerations”, it has been long accepted, “… is generally for the decision-maker and not the court to determine …”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. Similarly, in Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. Gummow and Hayne JJ observed:
[197] … In the end, the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.
And, in Chand v Minister for Immigration & Ethnic Affairs (unreported, 7 November 1997) von Doussa, Moore and Sackville JJ observed:
The [Refugee Review Tribunal] is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The [Tribunal] is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another …
See also: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [14]."[34]
[34] The Minister’s submissions also refer to Minister for Immigration v SZJSS [2010] HCA 48 (per the Court, at [33] at which it was said that “The weighing of various pieces of evidence is a matter for the Tribunal.”
In respect of the Taliban Influence Finding, particular (f) provides that “the Tribunal's finding that the Taliban was not ‘powerful’ in Karak at paragraph 84 was in direct contradiction to the evidence provided by the Applicant to the Tribunal”. This “direct contradiction” is presumably in reference to particular (d) which provides that “the Tribunal was provided with extensive country information on the activities of the Taliban in District Karak”.
The Taliban Influence Finding was made after a detailed consideration of the applicant's claims and evidence, including in the form of a wealth of articles on Taliban activities in Pakistan. The Tribunal based the Taliban Influence Finding on:
a)information before the Tribunal that, until an attack on a police station in February 2010 in Karak town, “Karak was spared the violence that has affected other areas of Khyber Pakhtunkhwa”[35]. This inference was apparently drawn by the Tribunal in the absence of any earlier report of any Taliban attack specific to Karak prior to the February 2010 incident, and was open to be drawn on the material before the Tribunal. Further it is apposite to refer to Rares J's statement in SZQJB v Minister for Immigration[36]:
The appellant's claim was expressed very broadly. He asserted that he had a well-founded fear of persecution were he to return to Sri Lanka because he was a young Tamil male from the North, and, for that reason alone, he would be suspected of being a member or supporter of the LTTE…The reviewer was entitled to consider the country information for what it said and did not say about the fear of persecution that the appellant claimed. A valid starting point could be to proceed, as the reviewer did, by enquiring whether country information concerning those who were at risk of persecution conformed to the claims made by the appellant. The division of country information on this issue presented the reviewer with the need to make a finding on the claim. The reviewer's choice of one available answer in lieu of the other is not illogical or irrational merely because the reviewer chose the answer that did not support the result for which the appellant contended. (emphasis added);
b)the applicant claimed that the JUI-F, to which the MNA for Karak and a local MPA belong, supports the Taliban. However, the Tribunal rejected this based on the JUI‑F being part of the national coalition government which is “fighting the Taliban”, and cited the sources of this information[37];
c)attacks by the Taliban in Karak since the applicant first left Pakistan had been on “government or economic targets”, such as the police station and Gurguri oil field, or some ANP meetings[38]. Self-evidently, the applicant is not a government or economic target. The Tribunal found that the chance that the applicant would be at a meeting subjected to a Taliban attack was “very remote”.
[35] CB 131 at [84]
[36] [2013] FCA 10 (at [25])
[37] CB 132 at [86]
[38] CB 134 at [98]
To the extent that the applicant challenges the weight given by the Tribunal to information before it, in addition to what I say at [33] above, I find that the Taliban Influence Finding was based on reasoning which was logical, rational and supported by more than a “skerrick of evidence”.
Ground 2
Ground 2 impugns the Tribunal's application of the test for a well-founded fear of persecution. Four particulars are provided.
At the commencement of its decision, the Tribunal set out the law and relevant legal principles concerning a well-founded fear of persecution[39] which accurately reflect the state of the law. There no basis to impugn the Tribunal's understanding of the relevant law and principles.
[39] CB 114-116
The first and fourth particulars claim respectively that the Tribunal misunderstood the correct test by focussing on:
a)the profile of the applicant within the ANP, rather than the applicant's length of membership and his family's membership of the ANP;
b)the fact that the applicant had not attracted the attention of the Taliban rather than whether the applicant would attract the attention of the Taliban.
I accept the Minister's submission that the first and fourth particulars are misguided. In truth, the applicant claims that the Tribunal should have given more weight to certain strands of evidence. As noted at [33] above, the weight given to various items of evidence is a matter purely within the domain of the fact-finder, not the Court on judicial review.
Additionally, as noted above, the Tribunal accepted the applicant's and his family's connections with the ANP. It absorbed that evidence, had regard to it and weighed it in the mix but was simply not satisfied that those matters gave the applicant the profile which would give rise to a real chance of persecution.
As to whether the applicant would attract the attention of the Taliban, it is legitimate and entirely orthodox for the Tribunal to adjudge a well-founded fear of persecution by reference to past conduct and events, as his Honour Gyles J found in SZBSO v Minister for Immigration[40]. This is further supported by the absence of any claim by the applicant that his activities for the ANP would alter if he returned to Pakistan.
[40] [2005] FCA187 at [9]-[10]. There his Honour accepted submissions on behalf of the Minister that “whether conduct amounts to ‘persecution’ and whether the applicant for a visa has a well founded fear of persecution on return are questions of fact and degree for the Tribunal….and, having considered the past as a guide to what might occur in the future, the Tribunal was not satisfied that a case of well founded fear of persecution on return was made out... such findings were the province of the Tribunal.”
The second and third particulars to Ground 2 claim that the Tribunal failed to properly consider whether the applicant had a well-founded fear of persecution by reason of his membership of the particular social groups of:
a)a “former teacher who had spent time in Australia with liberal democratic political views that the Taliban would consider repugnant”; and
b)“a relative of a deceased Pakistani army officer in circumstances where the Taliban is opposed to the army of Pakistan”.
I accept that the second and third particulars are answerable by the following:
a)the applicant did not claim to be a member of the relevant particular social groups;
b)in any event, the Tribunal considered the applicant's teacher status and his relationship to Captain Muneeb in the course of its decision, but rejected the applicant's claim to have a well-founded fear of persecution on those bases, either expressly or as part of a finding of greater generality[41], for the reasons it gave[42].
[41] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
[42] CB 134 at [98]
Ground 3
Ground 3 claims that the Tribunal did not properly consider all essential integers of the applicant's claims. Two particulars are provided which in essence are the same as the first and second particulars to Ground 2.
The claim that the Tribunal overlooked the factual matters particularised in Ground 3 cannot be sustained in the face of the Tribunal's findings and reasons, which give express consideration to those factual matters.
I conclude that the amended application fails to demonstrate a case of jurisdictional error by the Tribunal. Accordingly, I must dismiss the application and I so order.
In consequence to the dismissal of the application, the Minister seeks an order for costs. The Minister seeks costs in accordance with the Court scale. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 1 July 2013
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