SZTOF v Minister for Immigration & Border Protection

[2015] FCCA 2858

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOF v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 2858

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether the Refugee Review Tribunal failed to apply section 430 of the Migration Act 1958 (Cth) to the applicant’s claims for complementary protection – whether the Refugee Review Tribunal was entitled to rely on earlier findings in considering whether the applicant met the complementary criterion in section 36(2)(aa) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal applied the correct test pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth) in respect of complementary protection – whether the Refugee Review Tribunal was entitled to rely on its findings in respect of the applicant’s Convention based claims in considering complementary protection – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZSHK v Ministerfor Immigration and Border Protection [2013] FCAFC 125

Applicant: SZTOF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2910 of 2013

Judgment of: Judge Emmett

Hearing date: 21 October 2015

Date of Last Submission: 21 October 2015

Delivered at: Sydney

Delivered on: 12 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Paul Bodisco

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2910 of 2013

SZTOF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Division 2 of Part 8 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 30 October 2013 and handed down on 30 October 2013 (“the RRT”).

2. The applicant claims to be a citizen of the Pakistan and a supporter of the Awami National Party (“the ANP”), who fears harm from the Taliban in Pakistan for reason of his political opinion.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 18 October 2011 having departed legally from Pakistan on a passport issued in his own name and a visitor visa issued on 10 May 2011.

2. On 25 November 2011, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 6 August 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 30 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 30 October 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 22 November 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

1. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

2. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

3. Sections 36(2A) and 5 of the Act defines “significant harm.”

4. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

5. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 of Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

6. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

7. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

8. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)He comes from Ditpani Village in Swat Valley, Bangladesh.

   b)His father was a senior member of the ANP. The ANP is opposed to the Taliban in Pakistan.

   c)In 1991, he joined the Pakhtoon Student Federation, which was part of the ANP. In 1992, he began campaigning for the ANP with a friend.

   d)His father was killed on 28 June 1998 by the Taliban.

   e)In January 2008, his friend was killed and he was advised to leave his village. He left his village and went into hiding for a few weeks.

   f)In January 2009, another friend was killed by Taliban militants. His body was hung on a power pole and a note was left to warn others against the removal of the body. The applicant risked his life by bringing the body down and taking it to the friend’s family.

   g)The son of a Taliban leader in the area questioned the applicant as to why he had acted against the warning and removed the body. This person threatened to “dob” the applicant to the Taliban.

   h)In April 2009, the Applicant and his wife went to Islamabad for the delivery of their daughter, and remained there until late May 2009.

   i)While he was away, he was informed by a friend that the Taliban had come looking for the applicant and had demolished his house and killed his cows.

   j)After realising that his life was in danger, he went into hiding in various places in Karachi.

   k)In January 2010, the Taliban put out a “warning letter” in the village community that the applicant was to be killed.

   l)In August 2010, another friend was killed by the Taliban and a note was left on his body that the applicant “would be the next person”.

   m)In December 2010, the applicant left his family in Karachi and travelled to France.

   n)On 5 December 2010, the Taliban had come looking for the applicant at his father-in-law’s house. When his father-in-law stated that the applicant was not there, he was killed by the Taliban.

   o)The applicant fears that he will be killed if he was to return to Pakistan.   

The Delegate’s decision

1. On 11 July 2012, the applicant attended an interview with the Delegate.

2. The Delegate found that the applicant was unable to detail and substantiate his involvement with the ANP. The Delegate was not satisfied that the applicant held a position or had a profile with the ANP that was of sufficient interest to the Taliban.

3. The Delegate also took into consideration a copy of a notice dated 5 April 2012, which stated that the applicant was going to be killed and warned others not to protect the applicant. However, noting that the heading of the notice was in respect of a different person, the Delegate questioned the authenticity of the document and afforded no weight to it. 

4. Further, the Delegate had regard to the applicant’s travel history. The Delegate noted that, despite the applicant’s claim that he started to experience hardship in Pakistan following his father’s death in 1998, he travelled abroad twice and returned to Pakistan after both occasions. The Delegate also found that the applicant had opportunities to leave Pakistan from March 2011, but did not do so. Accordingly, the Delegate found that the applicant’s travel history suggested that he did not have a well-founded fear of persecution in Pakistan as claimed.

5. Accordingly, on 6 August 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and further, that he did not meet the alternative complementary protection criterion.

The RRT’s review and decision

1. On 30 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided various documents in support of his review application, including a statement dated 29 August 2013. 

3. On 24 July 2013, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 6 September 2013 to give oral evidence and present arguments.

4. On 6 September 2013, the applicant attended the RRT hearing and gave evidence.

5. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT identified with particularity the country information to which it had regard. The RRT put to the applicant country information for comment.

7. The RRT accepted that the applicant may have attended some ANP meetings. However, the RRT found that the applicant provided inconsistent and “somewhat inarticulate” responses when questioned about the nature of his political involvement, and further, that he was only able to provide “limited information” in relation to his political involvement. The RRT found that this suggested that the applicant did not have strong political views and that he was not actively engaged in politics. Accordingly, the RRT was not satisfied that the applicant had a political profile in the past or that his activities were such that there was a real chance he would be killed or persecuted because of his past involvement with the ANP.

8. Further, the RRT did not accept that the applicant had been specifically targeted in the past because of his claimed political activities and his association with the ANP or the alleged act of disobeying the Taliban by taking his friend’s dead body off a pole.

9. The RRT also found that the applicant had travelled to Europe in March 2010, and then travelled to France and the United Kingdom in November/December 2010, but returned to Pakistan on both occasions without having sought asylum. The RRT found the applicant’s travel history to be at odds with his claims that he was wanted by the Taliban. Additionally, the RRT did not accept that a person in the position of the applicant, whose father-in-law had allegedly been killed by the Taliban after the Taliban had come looking for the applicant, would return to that area.

10. The RRT had regard to a document marked as a death certificate and a translated notice which stated that the Taliban was looking for the applicant. However, given its concerns with the applicant’s evidence that he had left Swat a long time ago, and his conduct after the alleged death of his father-in-law, the RRT did not accept that these documents were genuine. The RRT also had regard to a document dated 5 April 2012, allegedly put out by the Taliban, to warn others to not look after the applicant’s property. However, given that the applicant had stated that his house was destroyed in 2009 and that he did not return to Swat afterwards, the RRT did not accept this document as genuine.

11. The RRT referred to the applicant’s evidence that his friend, the “general secretary for Metroval for the ANP”, was killed by the Taliban. The RRT found that this person would have been known to many ANP members and supporters. Given the RRT’s finding that the applicant was not a prominent member of the ANP, the RRT found that even if the applicant and the person killed were friends, their friendship would not mean that the applicant would come to the adverse attention of the Taliban.

12. Further, the RRT found that given the large number of supporters of the ANP of Pashtun background in Karachi, which the RRT stated was estimated to be the overwhelming majority of the five million Pashtuns in Karachi, the applicant would not be singled out or killed by the Taliban simply because he was a supporter or member or the ANP. 

13. Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Pakistan.

14. The RRT also considered whether the applicant met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Pakistan, there is a real risk that the applicant would suffer significant harm.

15. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Paul Bodisco, of counsel.

2. Mr Bodisco also represented the applicant at a directions hearing on 12 March 2014. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

3. At the commencement of today’s hearing, counsel for the applicant sought leave to file in Court an Amended Application. By consent, leave was granted. The grounds of the Amended Application are as follows:

   “GROUND ONE:

   The RRT has failed to apply section 430(1) of the Migration Act to the Applicant's claims pursuant to section 36(2)(aa) of the Migration Act.

   Particulars

   a. The reasons for refusing the Applicant's claims under section 36(2)(aa) of the Migration Act are confined to paragraph [22] of the decision;

   b. The reasons fail to set out the reasons for the decision, the findings on any material questions of fact or to refer to the findings on any material questions of fact upon which the decision was based;

   c. Section 430(1) of the Migration Act imposes mandatory requirements on the decision maker.

   d. A failure to comply with the requirements of section 430(1) of the Migration Act may amount to jurisdictional error: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108.

   GROUND TWO:

   The RRT has failed to deal with the full integers of the Applicant's claims pursuant to section 36(2)(aa) of the Migration Act 1958.

   Particulars

   a. The reasons for refusing the Applicant's claims under section 36(2)(aa) of the Migration Act are confined to paragraph [22] of the decision;

   b. The Applicant squarely raised a claim that the Applicant may be killed not as a result of his political affiliation but as “collateral damage” attacks targeting others [CB 197] and elsewhere as a result of the general security situation in Pakistan; [CB 62; 148; 190 and Transcript, page 24].

   c. The failure to deal with the squarely raised claim under the complementary protection provision amounts to a failure to exercise jurisdiction.

   GROUND THREE

   The RRT has applied the incorrect test pursuant to section 36(2)(aa) of the Migration Act 1958.

   Particulars

   a. The reasons for refusing the Applicant's claims under section 36(2)(aa) of the Migration Act are confined to paragraph [22] of the decision;

   b. The Tribunal took into account unspecified findings of fact outlined elsewhere in the decision - some of which were irrelevant to the complementary protection criterion - and imported into its analysis the requirement for the Applicant to demonstrate that the motivations of his persecutors conform with the Refugee Convention.

   c. The failure of the Tribunal to apply the correct test amounts to jurisdictional error.”

Grounds 1 and 3

1. Counsel for the applicant, Mr Bodisco, commenced his submissions on the basis that it was logical to deal with the grounds together as they flowed from the findings made by the RRT in relation to complementary protection, which are as follows:

   “22. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2.)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). Taking into account the above findings, the Tribunal is not persuaded that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that as a consequence of Taliban interest, terrorist attacks or ANP-MQM violence, or the authorities, that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out or he will be subjected to torture or cruel or inhumane treatment or punishment or degrading treatment or punishment. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”

1. Counsel for the applicant contended that the RRT did no more than recite the claims of the applicant and made conclusions absent reasons. Mr Bodisco characterised this complaint as a failure to provide reasons as required by s.430 of the Act. In support, Mr Bodisco referred to Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [94] – [95], where Rares J found that the brevity of the tribunal’s written statement and the absence of any identified basis for its findings of material fact was in contradistinction to the purpose of s.430 of the Act as an important safeguard against any arbitrary or unlawful exercise of the executive power of the Commonwealth.

2. However, I accept the submission of counsel for the first respondent, Mr Reilly, that the reference by the RRT to its earlier findings was a legitimate manner in which the RRT could provide reasons for its findings. It is well established that the RRT is entitled to consider complementary protection by reference to its previous findings (see SZSHK v Ministerfor Immigration and Border Protection [2013] FCAFC 125 (“SZSHK”) at [32] – [34] per Robertson, Griffiths and Perry JJ). In particular, the Full Court of the Federal Court in SZSHK stated as follows at [32] and [34]:

   “[32] In the present case the Assessor did not accept that the appellant was targeted by the Taliban/Kuchis/Pashtuns when travelling on the road from his village to Ghazni City, which was a factual component of the appellant’s claim. The Assessor did not accept that there was a real risk that the appellant would suffer significant harm by Pashtuns/Taliban/Kuchis in relation to his travel on the roads, which was another factual element. The Assessor did not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns. These being the claims put we see no error in so assessing them. We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.

   …

   [34] As to the specific criticisms made by the appellant of [145] of the Assessor’s reasons, read in context and so as to inform as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, we are not persuaded that those references establish that the Assessor impermissibly strayed from addressing the statutory question posed by s 36(2)(aa) in relation to the travelling claim. We accept that to some extent the Assessor was restating what she had earlier found but we do not regard those restatements, in the terms in which they are made in [145], as irrelevant to the s 36(2)(aa) question given the claim made that the routes to and from Ghazni province were insecure and the appellant would suffer significant harm from cruel and inhuman treatment or punishment by the Taliban as a Hazara: see [30] of the Assessor’s reasons and the claim made at p 45 of the appellant’s lawyers’ 46 page submission to the Assessor. For completeness we also note that protection obligations are the subject matter of s 36(2)(aa) and that obtaining protection from an authority of the country is referred to in s 36(2B). Both these provisions form part of the complementary protection criterion for a protection visa.”

3. In SZSHK, the Full Court held that the assessor had specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the appellant’s claims.

4. In the case before this Court, the claims of the applicant that he feared harm at the hands of the Taliban because of his perceived involvement and political profile with the ANP were rejected by the RRT. As is clear from the summary of the decision of the RRT above in these Reasons, the RRT did not accept the applicant’s claim that he had been targeted by the Taliban in the past or that his past activities had provided him with a profile with the ANP that put him at a real chance of harm in Pakistan. Further, the RRT did not accept that the applicant was of any specific interest to the Taliban. Those findings by the RRT were made in the context of its acceptance that the applicant’s father may have been a political campaigner and that the applicant may have represented Ditpani Village in Swat, and may have talked about their problems to an ANP member of the National Assembly before he left Swat. The RRT found that the roles of the applicant and his father in connection with the ANP were relatively small, although it accepted that the applicant may have attended some ANP meetings with friends and informed people in Karachi about the problems the Pashtun people faced.

5. The RRT was not satisfied that the applicant had a profile in the past or that his activities were such that there was a real chance that he would be killed or otherwise persecuted because of his past ANP involvement. The RRT also found that even if the applicant continued his involvement with the ANP, the chance that he would be seriously harmed by the Taliban or any other terrorist group by reason of his actual or imputed political opinion, or indeed because he was a Pashtun, was remote.

6. The RRT did not accept the applicant’s claims that the Taliban would come after him because of a combination of his ANP membership and association with ANP members, his own political activities and the act of taking down his friend’s body. The RRT did not accept that the applicant had come to the adverse attention of the Taliban or that there was a real chance that the applicant would be killed or face persecution on return to Pakistan.

7. The RRT was not satisfied that if the applicant was to return to Karachi, he would be singled out to be killed, or otherwise persecuted, by the Taliban because he was a supporter or a member of the ANP. The RRT made that finding in the context of accepting that ANP members are targeted for violence in Karachi, although it noted that they had been targeted primarily as a result of the political and ethnic sectarian conflict between the ANP and the Muttahida Qaumi Movement (“MQM”). The RRT accepted that ANP members may have died in terrorist attacks, some of which were perpetrated by the Taliban, and that the Taliban had stated that it would continue to attack pro-ANP Pashtuns.

8. However, the RRT did not accept that, given the number of pro-ANP Pashtuns, versus the number MQM attacks, there was a substantial chance that the applicant would be killed or otherwise persecuted in the context of the violence between the ANP and the MQM. Further, the RRT did not accept that, given the number of pro-ANP Pashtuns versus the number of Taliban attacks, there was a substantial chance that the applicant would be killed or otherwise persecuted by the Taliban because he was a member or supporter of the ANP.

9. The RRT did not accept that there was any Taliban vendetta against the applicant or that he had come to the adverse attention of authorities, or would suffer harm at the hands of the authorities in Pakistan. The RRT did not accept that the applicant and his family had come to the adverse attention of the Taliban in the past, or been targeted or harmed by the Taliban for reason of actual or imputed political opinion, family or other associations, or for any other reason.

10. The RRT found that the applicant’s fear of persecution was not well-founded and rejected any Convention based claim.

11. The RRT was entitled to rely on those adverse findings in respect of the applicant’s claims in considering whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act.

12. In considering complementary protection, the RRT specifically rejected that the applicant was at real risk of harm as a consequence of any Taliban interest, any interest by the authorities in Pakistan, terrorist attacks, or ANP-MQM violence or for any other reason. The RRT further rejected that he would be arbitrarily deprived of his life, subjected to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment. The reasons for those findings were clear from the RRT’s consideration of the applicant’s claims and its findings in respect of those claims.

13. In the circumstances, the RRT applied the correct test pursuant to s.36(2)(aa) of the Act and its findings in respect of complementary protection were open to it on the evidence and material before, and for the reasons it gave. Those reasons were the adverse findings that had been made in respect of its consideration of the applicant’s claims at large, in particular, that he was not at risk at Pakistan for any reason.

14. In the circumstances, Grounds 1 and 3 are not made out.

Ground 2

1. Ground 2 asserts that, in considering complementary protection, the RRT failed to consider a claim squarely raised by the applicant that he may be killed, not as a result of his political affiliation with the ANP but as collateral damage in attacks targeting others as a result of the general security situation in Pakistan.

2. In support, Mr Bodisco referred to various written statements in submissions made by the applicant’s migration agent. The following references were made:

   i)      “While the harm feared by [the applicant] is directly from the government of Pakistan, the fact that the government is incapable of offering any decent level of protection to its persecuted citizens, like [the applicant], means that he is not safe anywhere within Pakistan” (at page 62 of the Court Book).

   However, that statement is in the context of a submission about the attacks of the Taliban on ANP members. Those matters were considered by the RRT and its findings were open to it on the evidence and material before it, and for the reasons it gave.

   ii)The applicant’s migration agent made submissions that it was not necessary for the applicant to be the most active and prominent member of the ANP in order for him to come to the adverse attention of the Taliban (at pages 190 – 193 of the Court Book).

   However, the RRT made a clear finding that the applicant was not being sought by the Taliban or on any hit list of the Taliban, or was of any adverse interest to the Taliban. Again, those findings were open to the RRT on the evidence and material before it, and for the reasons it gave.

   iii)“The Taliban or MQM target ANP members such as the applicant, civilians are killed as collateral damage…the ANP members are always the target…the Taliban are the judge and the prosecutor at the same time.”

   However, the RRT considered the applicant’s risk as a member of the ANP and its finding that the applicant feared harm for the reason of his membership alone was open to it on the evidence and material before it, and for the reasons it gave.

   iv)“All that is necessary is for the Taliban to know that he [the applicant] is part of the ANP for him to be killed…the Taliban are interested in killing anyone who opposes them and the applicant has been actively doing exactly that for many years.”

   However, the RRT considered those claims and they were specifically rejected by the RRT for the reasons referred to above. Those findings were open to the RRT on the evidence and material before it, and for the reasons it gave.

   v)A statement by the applicant as follows: “I know that the Taliban will kill me anywhere in Pakistan if I were to return. There is a real chance of harm if I were to return to Pakistan. I fear for myself. If you send me back to Pakistan the Taliban will kill me because of political views and the Taliban would consider me as cancer of the society and they believe I should be rooted out. The Taliban know that they cannot chance my political view. I will remain against them, therefore for this reason I will get killed” (at page 200 of the Court Book).

   However, as is clear from the findings referred to above, the RRT specifically considered the risk of harm to the applicant if he returned to Pakistan and maintained his political views. The RRT found that the applicant’s fear of harm in those circumstances was not well-founded and that he was not at risk of persecution on the basis that he was not of adverse interest to the Taliban and that he had not suffered past harm, and did not have a profile that would pick the interest of the Taliban. Again, those findings were open to the RRT on the evidence and material before it, and for the reasons it gave.

   vi)The applicant’s migration agent stated “what needs to be understood is that when the Taliban or MQM targets ANP members such as the applicant, civilians are killed as collateral damage” ( at page 197 of the Court Book).

   This submission is otherwise similar to the one referred to above. The applicant’s claim was that he would be targeted by the Taliban as an ANP member and because of his political affiliation with the ANP. The RRT rejected those claims. As stated above, those findings were open to the RRT on the evidence and material before it, and for the reasons it gave.

3. In the circumstances, I am not satisfied that there was any claim that squarely arose on the evidence and material before the RRT to suggest that the applicant was making a separate and distinct claim to fear harm in Pakistan as “collateral damage” (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ). The reference to “collateral damage” by the applicant’s migration agent was in the context of the alleged persecution by the Taliban of ANP members. The RRT dealt with those claims made by the applicant.

4. I am not satisfied that the applicant made a separate claim that he was at risk of harm as collateral damage in Pakistan. The applicant’s fear of harm in Pakistan was consistently linked to his political affiliation with the ANP. Any such claim with reference to “collateral damage” should be seen in that context.

5. In the circumstances, the RRT’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

6. There was no separate claim raised under the complementary protection criterion beyond the claims that had a Convention nexus. A fair reading of the RRT’s decision record makes clear that the RRT understood that in considering complementary protection, it was not confined to the applicant’s Convention based claims. However, as stated above, in finding that the applicant was not entitled to complementary protection, the RRT was entitled to rely on its earlier findings.

7. Accordingly, Ground 2 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support, including post-hearing submissions. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law, in considering if Australia owes protection obligations to the applicant either under s.36(2)(a) or s.36(2)(aa) of the Act.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 November 2015