SZTGP v Minister for Immigration

[2014] FCCA 2281

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2281

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether in the interests of the administration of justice to extend the time for making the application – application for an extension of time dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36, 48, 91R, 417, 477

BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83; [2012] FCA 774
Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40
SZFYV v Minister for Immigration and Citizenship [2007] FCA 304
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZMZV v Minister for Immigration and Citizenship [2009] FMCA 617
SZNZI v Minister for Immigration & Anor [2011] FMCA 57
SZSEW v Minister for Immigration & Anor [2013] FCCA 1181
SZSQH v Minister for Immigration and Multicultural and Indigenous Affairs [2013] FCCA 817
SZQBC v Minister for Immigration & Anor [2011] FMCA 563
Tran v Minister for Immigration and Border Protection [2014] FCA 533
VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541
Vu v the Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59

Applicant: SZTGP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2148 of 2013

Judgment of: Judge Barnes

Hearing date: 16 September 2014

Delivered at: Sydney

Delivered on: 16 September 2014

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for an extension of time is dismissed. 

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2148 of 2013

SZTGP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 14 September 2012 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant sought review by application filed in this Court on 12 September 2013. This was nearly 12 months after the date of the Tribunal decision and, hence, close to some 11 months outside the 35-day limit in s.477(1) of the Migration Act 1958 (Cth) (the Act) on making a judicial review application to this Court.

2. In the application (prepared at a time when the Applicant was legally represented) the Applicant sought an extension of time to make the application to this Court on the basis that he had been awaiting the outcome of representations to the Minister under s.417 and s.48B of the Act. He claimed he had been advised by letter dated 28 August 2013 that these representations were not successful. The affidavit accompanying the application simply annexed a copy of the Tribunal decision and a copy of a letter of 28 August 2013 from the Department of Immigration addressing s.48B of the Act.

3. Section 477(2) of the Act provides that the Court may extend the 35-day period for making a judicial review application as it considers appropriate if an application has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to extend the time and the Court is satisfied that it is necessary in the interests of the administration of justice to extend the time.

4. The Applicant did specify in writing (in his application) why he considered it necessary in the interests of the administration of justice to extend the time.  I have considered whether in all the circumstances I am satisfied that it is so necessary (see SZNZI v Minister for Immigration & Anor [2011] FMCA 57 at [11]).

5. Factors of particular relevance in this instance are whether there is an adequate explanation for the delay in commencing the proceedings and the merits of the substantive application (see generally SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44]). It is also relevant to consider, as part of all the circumstances, whether there is any prejudice to the respondents in granting an extension of time. There is no suggestion of any such prejudice. I have also considered the impact on the Applicant in the possibility of being returned to Pakistan. The interests of the public at large are also relevant, but no submissions were made in this respect. More generally, it is necessary to have regard to the Court’s discretion in relation to s.477(2) of the Act.

6. The delay in this case is significant, particularly when seen in the context of the 35-day time limit applicable under s.477(1) of the Act. The extent of the delay should be balanced against the reasons for delay (see Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]). The reason given in writing was simply a factual reference to the Applicant awaiting the outcome of representations to the Minister.

7. In oral submissions today, the Applicant indicated that he had relied on advice from his former solicitors.  This is considered below.  He was legally represented at the time of the Tribunal decision. 

8. First, I note that insofar as he appeared to seek to raise for the first time an issue in relation to his mental health in explanation for the delay, no evidence in that respect was provided at the time of the application or by way of affidavit evidence, notwithstanding that at the time of his application to this Court he was legally represented. 

9. The absence of evidence to support any claims in relation to the Applicant’s mental condition was pointed out in submissions by Counsel for the First Respondent.  The Applicant did not address this issue in reply.  However while I was in the course of delivering ex tempore reasons for judgment the Applicant sought to interrupt to point out that he had some medical evidence.  The First Respondent did not object to the case being reopened in this manner to allow such evidence to be considered.  I granted leave to the Applicant to reopen his case. 

10. The additional evidence now before the Court consists of three documents.  A letter to the Community Status Resolution branch of the Department of Immigration dated 15 May 2013 from a general practitioner stated that the Applicant was severely depressed and expressed the view that he was unfit to leave Australia for at least three months.  A further letter to the Department of 25 May 2013 from a Counsellor Advocate at the Asylum Seeker Resource Centre supported an extension to the Applicant’s bridging visa.  It referred to his assessment and treatment by an attending psychiatrist and the symptoms he exhibited.  The counsellor also expressed the opinion that the Applicant was unfit to travel and would be for at least the next three months. 

11. The third document tendered by the Applicant is a medical report dated 3 June 2013 from a psychiatrist.  The report refers to the rejection of the Applicant’s “appeal to stay in Australia” (sic) on 10 April 2013, to two subsequent referrals to the “CATT team” and to consultations with doctors in April and May 2013.  The report writer explained that his report was based on clinical information available in the medical records and was not a personal review of the Applicant.  The Report summarised various medical reports in relation to the Applicant’s condition from April and May 2013 and referred to a diagnosis of adjustment disorder in the context of situational crisis.  It explained that the Applicant had been discharged to the care of his psychiatrist and a counsellor in circumstances where there was no immediate risk to himself or others. 

12. These reports address the psychiatric condition of the Applicant for a period in mid-2013.  The Tribunal’s decision was made in September 2012.  The application to this Court was filed in September 2013.  While I take this information into account as part of all of the circumstances (in particular in relation to the time referred to in the reports), I do so in the context of an absence of evidence specifically addressing the earlier period of time from September 2012 to April 2013 and in circumstances where the medical report placed some stress on what was described as the Applicant’s appeal to stay in Australia being rejected on 10 April 2013 and his state of mind at that time. 

13. In these circumstances, I have considered what evidence there is before the Court in relation to what action, if any, was taken after the Tribunal decision of 14 September 2012. At that time the Applicant was represented by a migration agent who was also a solicitor. There was no application to the Court within the time provided in s.477(1) of the Act. Rather, on 15 October 2012 (approximately a month after the Tribunal decision) the Applicant’s solicitor made an application for Ministerial intervention under s.417 of the Act.

14. That application reiterated the Applicant’s claimed fears on return to Pakistan. It referred to the issue he took with the Tribunal view that he could relocate within Pakistan outside specified areas. It also spoke of his involvement in community activities in Australia. However on 5 April 2013 (which I note accords with the timing of the medical certificates) the Applicant was notified through his solicitor that the Minister had not exercised his power under s.417 of the Act because he decided it would not be in the public interest to intervene and that the Applicant’s request had been finalised.

15. From the material before the Court, it appears that the next relevant action taken by the Applicant was the lodgement of a second protection visa application on 14 June 2013.  In a letter in the name of the Applicant accompanying that protection visa application he asserted that his claims in his first protection visa application had not been given much consideration as the provisions for complementary protection were not in place at that time.  The Applicant asked to be considered under the complementary protection provisions.  He also claimed generally (without explanation) that circumstances in Pakistan had changed and become “more unsafe”. 

16. It appears from the documents before the Court that the Applicant was represented by a migration agent at that time.  However, contrary to any suggestion that complementary protection had not previously been considered, the complementary protection criterion was considered by both the delegate and the Tribunal in relation to the Applicant’s first protection visa application.  In these circumstances the second protection visa application does not provide a satisfactory explanation for any part of the delay in seeking review of the Tribunal’s decision.

17. On 14 June 2013 the Department wrote to the Applicant (care of his authorised recipient) advising that his application for a further protection visa was invalid because it did not meet s.48A of the Act.  In these proceedings no issue is taken in relation to that decision. 

18. Finally, on 28 August 2013 the Department again wrote to the Applicant advising of the outcome of a Ministerial intervention assessment under s.48B of the Act. Under s.48B the Minister may allow a person to make a further application for a protection visa if he thinks it is in the public interest to do so. The letter advised that the Applicant’s case had been assessed against the guidelines, that it did not meet those guidelines and that it would not be sent to the Minister. As indicated, the application to this Court was filed on 12 September 2013.

19. I have had regard to all of the circumstances of the delay and the explanation provided by the Applicant. However in the circumstances of this case I am not satisfied that the issues raised in the application (the ss.417 and 48B requests) or all the circumstances and evidence before the Court provide an acceptable explanation for the Applicant’s failure to lodge a judicial review application within the time allowed or at least more expeditiously than he did (even allowing for his medical condition in mid-2013).

20. There was some time between the Tribunal decision and the initial application for Ministerial intervention.  The Applicant was legally represented at that time and, as he told the Court today, he acted on legal advice.  This is not a case in which there is any evidence to suggest that the Applicant intended to seek judicial review at an earlier time but misunderstood his obligations.  Nor is there any suggestion that there was some error or miscommunication or oversight by his solicitor.  Notwithstanding that the Applicant may have been, on the medical evidence, in a more difficult position to assess and engage in appropriate action for a period in mid-2013, that provides no explanation for the initial substantial period of delay from the time of the Tribunal decision in September 2012.  Moreover the fact of the application for Ministerial intervention suggests that the then legally-advised Applicant was proceeding on the basis of accepting the validity of the Tribunal decision at a time at which he could properly have sought judicial review (see Vu v the Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59, particularly the remarks of Jessup J at [28] – [32] in relation to delay in circumstances where Ministerial intervention had been sought). The circumstances suggest that a conscious decision, albeit with legal advice, was made by the Applicant not to pursue a challenge to the Tribunal decision, but to pursue other options available to him under the Migration Act. This does not provide a satisfactory explanation for the delay in question (see Tran at [36]). In addition, the Applicant chose to lodge a fresh, and apparently unmeritorious, protection visa application in June 2013 and only commenced these proceedings after the Department had advised of the outcome of a s.48B Ministerial intervention assessment (see Vu at [29]).

21. I have considered the full explanation provided (including belatedly), the length of the delay and all that occurred after the Tribunal decision, including after notification of the response to the initial request for Ministerial intervention.  I am not satisfied that the Applicant has provided an adequate explanation for the extent of his delay in seeking judicial review. 

22. Notwithstanding the absence of a satisfactory explanation for the delay, it is appropriate to have regard to all the other circumstances.  It is particularly important in a case such as the present to have regard to the merits of the substantive application and whether the application, would have any prospect of success, were the extension of time to be granted (Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 at [35]). In my view, the longer the unexplained or unsatisfactorily explained delay, the stronger the argument on the merits would need to be to warrant an extension of time (see VQAN v Minister for Immigration & Multicultural & Ethnic Affairs (2003) 162 FCR 299; [2003] FCA 1541 at [23]).

23. In order to consider the merits of the proposed application, it is necessary to have regard in more detail to the application for protection, the proceedings before the Tribunal and the Tribunal decision. 

24. The Applicant is a citizen of Pakistan who left a ship in Fremantle in October 2011 and applied for protection in November 2011.  He provided a statement in support of his protection visa application in which he claimed, in essence, to fear harm from the Taliban in Pakistan.  He provided some other supporting information and attended a Departmental interview. 

25. The application was refused by a delegate of the Minister and the Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  His solicitors provided written submissions and independent country information, both before and after the Tribunal hearing.  The Applicant claimed to fear persecution in Pakistan on the basis of his political opinion and membership of the Awami National Party (the ANP).  He claimed to fear harm based on a number of past events related to his involvement with the ANP and ANP activists in the Swat Valley in Pakistan, including difficulties with the Taliban from 2008 such as harassment and demolition of part of his family home and his presence at the home of a relative in the ANP shortly before a bomb exploded.  He claimed that unknown gunmen had fired at a car he was in on two occasions in 2010 and that in Karachi in mid-2011 he was detained by the Army who initially accused him of being a terrorist.  He claimed to be from the Swat district of Pakistan and that the Taliban had killed many ANP members in that district.  He explained his travel as a ship crewmember.  He claimed that after the events of 2010 he left his home area for Karachi, but that he was still under threat in that area and, as indicated, had been detained and questioned by the police. 

26. The Applicant’s adviser submitted that ANP members were attacked throughout Pakistan and that if the Applicant returned he would continue his work and association with the ANP and that this would expose him to further violence and threats.  It was claimed that even if he and his family were to relocate to another province (apart from Karachi and the Swat region) the political and social turbulence in Pakistan would mean that they would be subjected to persecution.  The Applicant claimed he would be identifiable as a Pashtun by his appearance and also as a targeted ANP member.  He also contended that he was owed complementary protection on the basis of his family’s displacement, his inability to work and subsist, his association with a particular person (the relative in the ANP) and the fact that his identity was known. 

27. The Tribunal found that the Applicant was a generally credible witness. It accepted his claims as to his past experiences in Pakistan and difficulties with the Taliban, including the events that he claimed he experienced while involved with the ANP through the period up to his departure in 2011. Having accepted that the Applicant was shot at on two occasions in 2010 in the Swat Valley by persons likely to be Taliban militants, the Tribunal accepted that the past treatment of the Applicant at the hands of the local Taliban in Swat constituted serious harm for the purposes of s.91R(2) of the Act.

28. The Tribunal also accepted that the Applicant would continue to be known by the local Taliban in Swat as an ANP member and worker and that he would be perceived as being opposed to the Taliban.  It accepted his evidence in relation to his claimed detention and mistreatment in Karachi in 2011.  It found that country information indicated that ANP members continued to be targeted in Swat and Karachi for serious harm, so that there was a real chance the Applicant would face serious harm.

29. The Tribunal concluded that there was a real chance the Applicant would face serious harm from the Taliban and other extremist groups for reason of his political opinion and his membership of a particular social group of ANP members in Pakistan if he returned to Swat or Karachi now or in the foreseeable future.  The Tribunal also accepted that the authorities could not provide the level of protection the Applicant was entitled to expect. 

30. However the Tribunal found that it would be reasonable for the Applicant to relocate within Pakistan.  It considered the issue of relocation at length, correctly referring to the authority of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 to the effect that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact on that person of relocating within his or her country.

1. The Tribunal referred to the fact that, as it had put to the Applicant at the hearing, every Pakistani citizen had the right to move freely through and reside or settle in any part of Pakistan under the Constitution. It addressed his concerns that he would not be safe anywhere in Pakistan and the submission that the persecution he feared was not localised. However the Tribunal did not accept that the Applicant had a profile as a “high-profile anti-Taliban politician” or that the local Taliban (who would know him to be an ANP member and worker in Swat) would be motivated to pursue him to other parts of Pakistan.  In making this finding the Tribunal had regard to the Applicant’s evidence about the activities he had engaged in for the ANP.  The Tribunal accepted that country information indicated that ANP leaders and senior activist continued to be targeted for harm in Khyber Pakhtunkhwa (including Swat) and in Karachi.  It noted however that independent country information (including information provided to it by the Applicant’s solicitor) reported only one attack on ANP members or workers outside the Khyber Pakhtunkhwa and Karachi areas.  It accepted that the country information before it indicated that ANP members had been targeted in Khyber Pakhtunkhwa, Karachi and Balochistan. 

2. The Tribunal accepted that the Applicant’s campaigning and other ANP activities, including his personal and political association with a named politician who was a distant relative, had caused him to be targeted in the Swat Valley in early 2010.  It did not accept that these political activities or the Applicant’s personal or political association with the related politician were such that the Applicant would be pursued by the Taliban outside the areas of Khyber Pakhtunkhwa, Karachi or Balcohistan areas.  It had regard to the nature of the personal relationship between the Applicant and the politician and the fact that the Applicant’s evidence was that he would be targeted because of his role in bringing the politician to a speech and encouraging others to vote for him (rather than due to a personal relationship) as well as the absence of evidence of recent attacks on ANP members or their families outside the three specified areas.  The Tribunal did not accept that the Applicant’s association with the politician or his own limited political activities were significant enough or senior enough that he would be pursued by the Taliban in areas outside the three areas. 

3. The Tribunal accepted that the Applicant would continue to be a member and supporter of the ANP if he returned to Pakistan and that he may engage in similar political activities to those in the past.  However in the absence of country information about recent attacks on ANP members or their families outside Khyber Pakhtunkhwa, Karachi and Balochistan it did not accept that such activities were such that the Applicant would be pursued by the Taliban outside those three areas. 

4. Based on country information to which it referred, the Tribunal did not accept the Applicant’s claims that Taliban organisations were communicating across Pakistan. 

5. While the Tribunal accepted that the Applicant may be identified throughout Pakistan as Pashtun, it did not accept that this meant he would be identified as a targeted ANP member.  Nor did the Tribunal accept that he could be so identified from his physical appearance, name, language or accent.  The Tribunal found that the only documents before it that would identify the Applicant as an ANP member were his membership card and a supporting letter, but that as he had produced a passport and seaman’s book it did not accept that he would need to rely on the ANP membership card or the letter to establish his identity, unless he wished to do so.

6. The Tribunal did not accept the Applicant’s claims that he could not relocate because his family had already relocated but continued to receive threats to their welfare and safety.  Having regard to the evidence about past relocations and the absence of harm to his family since 2010 in his father in law’s village in Swat (or when in Peshawar in 2009 or 2011), the Tribunal did not accept that the Applicant or his family would be pursued outside his home area.

7. Having found that the persecution feared by the Applicant was localised to the Khyber Pakhtunkhwa, Karachi and Balochistan areas and that it did not accept that he faced a real chance of persecution outside those areas on the basis of his political opinion, ethnicity or ANP membership, the Tribunal went on to consider whether it would be reasonable to expect the Applicant to relocate to an area in Pakistan outside the three named areas.  It reiterated the need to have regard to the particular circumstances of the Applicant and the impact on him of relocation. 

8. The Tribunal addressed the factors raised in opposition to relocation.  For reasons which it gave, including the Applicant’s varied employment history, it did not accept that the Applicant would face a denial of his capacity to earn a livelihood of any kind such as would threaten his capacity to subsist.  It accepted that relocation as a Pashtun-speaker would require considerable adjustment, but noted that the Applicant had previously moved between Swat, Peshawar and Karachi.  It did not accept that such suggested impediments made it unreasonable in all the circumstances for the Applicant to relocate outside the three named areas.  The Tribunal accepted that the Applicant has a young family and that they did not wish to relocate.  However it did not consider that relocation was unreasonable in the particular circumstances of the Applicant. 

9. The Tribunal concluded that it was reasonable for the Applicant to relocate within Pakistan and that his risk of being harmed by the Taliban or other extremist groups outside the specified areas was remote and accordingly not well founded.

10. The Tribunal then considered the complementary protection criterion. For the reasons it had accepted that the Applicant had a well-founded fear of persecution in his home village in Swat, it also accepted that there were substantial grounds for believing there was a real risk he would suffer significant harm if he returned to his home village in Swat. However it was satisfied under s.36(2)(a) of the Act that it would be reasonable for the Applicant to relocate to an area of the country where there would not be a real risk he would suffer significant harm. For the reasons already given, the Tribunal was satisfied it would be reasonable for the Applicant to relocate to an area of Pakistan outside Khyber Pakhtunkhwa, Balochistan and Karachi where there would not be a real risk that he would suffer significant harm.

11. The Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.

12. There is one ground in the application for review.  It is that the Tribunal failed to apply the law in relation to internal relocation correctly.  There are three particulars to this ground. 

13. The first particular is that the Tribunal erred in failing to identify those areas of Pakistan to which the Applicant could effectively relocate.  No authority was cited in support of this proposition.

14. The Tribunal found that the Applicant could relocate to a part of Pakistan outside the three specified areas in which his fear was said to be localised.  I am not satisfied that in the present case the Tribunal had to identify a specific location to which it would be reasonable for the Applicant to relocate.  Such an issue was considered by the Federal Court in SZFYV v Minister for Immigration and Citizenship & Anor [2007] FCA 304. Downes J found (at [11]) that the Tribunal did not have an obligation to satisfy itself that there was a particular place for the appellant to relocate. His Honour stated that:

    …It was not for the Tribunal to seek to require the appellant to relocate to some particular place but to satisfy itself that safe relocation was possible.  This it did.

15. The issue of whether it was necessary for the Tribunal to identify a specific location to which it was reasonable for the Applicant to relocate has also been considered in a number of decisions of this Court.  The First Respondent drew the attention of the Court to SZSEW v Minister for Immigration & Anor [2013] FCCA 1181 at [20] – [26] in which, consistent with the approach taken in SZFYV, Judge Cameron found that the relocation doctrine was not necessarily concerned with one specific location to which relocation might be reasonable.  His Honour suggested that to approach the matter in that way distracted attention from what was really in issue, which was, relevantly, whether an Applicant had a well-founded fear of persecution in his country of nationality.  In that respect, Judge Cameron referred to the remarks of Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 441 quoted with approval in SZATV at [22] – [23] by Gummow, Hayne and Crennan JJ (also see SZSQH v Minister for Immigration and Multicultural and Indigenous Affairs [2013] FCCA 817 at [13]).

16. In this case the Tribunal found that the Applicant could relocate to a part of Pakistan outside the three nominated areas in circumstances where it was satisfied that his fear was localised.  The Tribunal correctly identified the test in relation to relocation as considered by the High Court in SZATV.  It correctly considered the Applicant’s personal circumstances and the impact upon him of relocating within his country in determining whether it was reasonable for him to relocate. It satisfied itself that safe relocation was possible. Thus it addressed the issue of whether the Applicant could relocate to a place in his country of nationality and if it was reasonable to do so.

17. The Tribunal asked not merely whether the Applicant could relocate to another area outside the areas of heightened risk, but also whether he could reasonably be expected to do so (also see SZMZV v Minister for Immigration and Citizenship [2009] FMCA 617 at [26] and SZQBC v Minister for Immigration & Anor [2011] FMCA 563 at [36] – [37]). Having identified the particular areas in which the Applicant was at risk and addressed the reasonableness of relocation outside those areas, the Tribunal was not required to then identify with precision a particular area where it envisaged that the Applicant could relocate, either to avoid a real chance of persecution or significant harm. It has not been established that there is any substance in this aspect of ground one.

18. Nor is there anything in the material before the Court to suggest even an arguable case let alone a reasonable prospect of success in relation to either of the other issues raised in the application for review.  The second particular is that, in finding there was no evidence before the Tribunal of attacks on ANP members or their families outside Khyber Pakhtunkhwa, Karachi and Balochistan in recent years, the Tribunal had failed to consider the evidence provided by the Applicant of such attacks.  The Applicant did not identify any particular evidence referred to in this particular.

19. The Tribunal referred to the Applicant’s claims in this respect.  It referred to country information, including items of country information provided by the Applicant’s adviser.  It found that the Applicant did not have a high profile similar to those who had been attacked in incidents for which there was evidence or that the Taliban would be motivated to pursue him to other parts of Pakistan.  In making those findings the Tribunal referred specifically to the particular information provided by the adviser, including in relation to events in Balochistan, in a town outside Karachi and to a YouTube video, but found that there was an absence of country information to support evidence of attacks on ANP members or their families outside Khyber Pakhtunkhwa, Karachi and Balochistan in recent years.

20. Insofar as there is intended to be a contention that the Tribunal failed to consider particular corroborative or supporting evidence, no specific evidence has been identified. In any event, it is apparent from the Tribunal’s reasons for decision that it canvassed the information put before it by the Applicant’s adviser, but found nothing to support the claims about risk to the Applicant of attack outside the three named areas.  There is no merit in this particular as expressed.

21. The third particular is a generally expressed and unparticularised contention that in finding country information did not indicate that the various Taliban organisations were “communicate” (which I think is meant to be “communicating”) across Pakistan, the Tribunal failed to consider publicly available country information before it.

22. In the absence of identification of what country information is said not to have been considered, this complaint must fail.  Insofar as this is a reference to material put before the Tribunal it is addressed above.  It may be intended to be a more general proposition.  However there is no evidence before the Court to support a conclusion that the Tribunal fell into such an error or any basis, arguable or otherwise, for such a claimed jurisdictional error.

23. The Applicant filed written submissions on 2 September 2014 in which he reiterated the concerns expressed in the application about the Tribunal’s failure to specify a specific area in Pakistan to which he could reasonably relocate.  As discussed above, in this case there is no reasonable prospect of success in establishing jurisdictional error in this respect.

24. In addition, it was submitted that the Tribunal had failed to consider properly “the test whether the Applicant would suffer serious harm as per s.91R(2)(a) of the Act if he [was] asked to relocate in Pakistan”. Section 91R(2) specifies instances of serious harm including (in subparagraph (a)) a threat to the person’s life or liberty. The Tribunal understood and referred to the Applicant’s claimed fear he would be killed. Its reasons do not demonstrate that there is even an arguable error on the basis contended for in this aspect of the submissions. Rather, the Tribunal accepted that the Applicant faced serious harm for the purposes of s.91R(2) of the Act within specified, localised areas. However it found, for the reasons which it gave, that the Applicant was not at risk of such harm outside those specified areas.

25. In oral submissions today, the Applicant also took issue with the merits of the Tribunal decision, reiterating that it was not safe for him to return to Pakistan.  He sought to raise with the Court what he said were more recent events in Pakistan.

26. Insofar as he takes issue with the merits of the Tribunal decision, in particular the Tribunal’s conclusion in relation to relocation, the Applicant seeks impermissible merits review.  Insofar as he now asserts that conditions have changed in Pakistan, as I endeavoured to explain to him, it is not open to the Court to determine whether he would be entitled to protection on the basis of present circumstances in his home country.  I indicated to him if his contention was that circumstances had changed then that may be a matter he could raise with the Minister.  However his contentions are not a basis for establishing jurisdictional error or, indeed, an arguable case or prospects of success such as to justify the grant of an extension of time.

27. Having regard to all of the circumstances, I am not satisfied that it is in the interests of the administration of justice to grant the extension of time sought by the Applicant.  In these circumstances the appropriate order is that the application for an extension of time be dismissed (see BZABK v Minister for Immigration and Citizenship [2012] FCA 774 at [43]).

28. The Applicant has been unsuccessful and the Minister seeks his costs of these proceedings.  The Applicant told the Court that he had no money, that he had borrowed money to pay his former lawyer and that he would not able to meet a costs order.  The Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the legal costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. In my view the amount sought is appropriate in this case, having regard to the nature of this and other similar matters. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 3 October 2014