SZTRJ v Minister for Immigration

[2014] FCCA 2885

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2885

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case raised –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 SZRMQ v Minister for Immigration and Border Protection & Anor [2013] FCAFC 142
S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45

Applicant: SZTRJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3143 of 2013

Judgment of: Judge Nicholls

Hearing date: 25 August 2014

Date of Last Submission: 25 August 2014

Delivered at: Sydney

Delivered on: 10 December 2014

REPRESENTATION

Applicant: In Person

Solicitor for the Respondents: Ms M Stone of DLA Piper Australia

ORDERS

1. The application made on 17 December 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $ 3326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3143 of 2013

SZTRJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 December 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 November 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The Minister has filed a bundle of relevant documents (“the Court Book” – “CB”) which was in evidence before the Court. The following background can be ascertained from those documents.

2. The applicant is a citizen of Pakistan. He arrived in Australia on 29 May 2008 as a “trainee” on a subclass 442 visa that was valid until 30 August 2009 (CB 15). He applied for a protection visa on 15 June 2012 (CB 1 to CB 27). The applicant was represented by a registered migration agent (CB 72). His claims to protection were initially set out in a written statement (CB 56 to CB 58).

3. The applicant claimed to have worked for a horse trainer in Pakistan. He claimed he and others were approached by armed men, whose “boss”, referred to as a “gunda”, wanted them to take action to prevent a horse the applicant was looking after from winning. The applicant was threatened, and feared harm because he did not do as he was told.

4. The applicant provided material in support of his claims including information about corruption in horse racing in Pakistan (CB 90 to CB 116). The applicant was interviewed by the Minister’s delegate on 15 August 2012 (CB 155).

5. The delegate refused the application on 10 September 2012 (CB 151 to CB 165). The delegate accepted that race fixing occurred in Pakistan, but found that the applicant’s claims were not credible (CB 162.2). He had significant concerns because of inconsistencies in the applicant’s statement and evidence, and with evidence given by his two friends who claimed to fear harm because of the same incident (CB 163.1).

The Tribunal

1. The applicant applied for review to the Tribunal on 21 September 2012. He was again represented by a registered migration agent (CB 166 to CB 173). The Tribunal conducted a hearing over two occasions (13 March 2013 and 3 October 2013, see CB 199, CB 203 to CB 205 and CB 252). His representative also participated in the hearings.

2. There is no transcript of the hearing before the Court. The Tribunal’s account of what occurred is set out in its decision record ([26] at CB 263 to [34] at CB 264).

3. During the course of the conduct of the review, the Tribunal received two reports from a clinical psychologist concerning the applicant’s mental health (CB 210 to CB 213 and CB 219). The Tribunal addressed these reports in its decision record ([11] at CB 261 to [18] at CB 262).

4. The Tribunal accepted that ([16] at CB 262):

   “…the psychologist’s report in regard to the analysis of the applicant’s mental state, that he has PTSD, is stressed, unable to concentrate for long periods and suffers memory loss.”

5. Nonetheless, the Tribunal still found it had concerns about the applicant’s credibility ([18] at CB 262):

   “The Tribunal has considered the psychologist’s report when considering the applicant’s overall evidence but has concerns with the applicant’s credibility. Even allowing for the lack of concentration and memory lapses, the Tribunal found the applicant to be unforthcoming during hearings and it was difficult getting responses on questions that sought responses outside of his written statement. For example, he was able to recall details such as dates and events in relation to the race fixing and visiting the police and was broadly consistent in his evidence on this claim. However, when questioned over efforts made by the gunda to find him following the incident to the present day and in relation to his claims that he would not be able to access mental health facilities, he was unable to remember specifics such as dates and answered many questions with he did not know.  On most occasions, in relation to his other claims, the responses were vague, general and repetitive. Overall, the Tribunal did not find the applicant a credible witness.”

6. The Tribunal accepted that the applicant had a subjective fear of returning to Pakistan, however proceeded on the basis that its task was to determine whether there was an objective element to that fear ([20] at CB 262).

7. The Tribunal proceeded to consider this question under four headings relevant to the applicant’s claims. These were:

   1)“Harm from gangsters/ Taliban – racing industry” ([21] at CB 263 to [48] at CB 267).

   2)“Mental Health” ([49] – [54] at CB 267).

   3)“Sectarian and ethnic violence” ([55] at CB 267 to CB 268).

   4)“Risk of harm to returnees from the West” ([56] at CB 268).

8. Relevant to the application before the Court, in relation to the claimed fear of gangsters, the Tribunal also considered links with the Taliban. It considered the claim in the context of the racing industry in Pakistan.

9. The Tribunal noted independent country information and news articles on the internet that a certain gangster with Taliban connections, and associations with the former head of Pakistan, was active in Pakistan in 2008 as a bookmaker ([25] at CB 263).

10. The Tribunal also considered the representative’s submissions that the applicant worked in an industry tolerated, but not accepted, by the Taliban, as it is against Sharia law ([26] at CB 263).

11. The Tribunal set out aspects of the applicant’s evidence given at the hearing ([28] at CB 263 to [34] at CB 264). It found it was not satisfied from that evidence that criminal elements and/or the Taliban were targeting the applicant because he refused to help a gangster ([36] at CB 264).

12. The Tribunal accepted that the applicant was employed in the racing industry in Pakistan, and accepted independent country information that there was a high level of corruption in this industry. The Tribunal accepted the likelihood that the applicant was asked to “fix” the race and that he refused ([37] at CB 265). The Tribunal also took into account country information of the well-established nexus in Pakistan between criminal gangs and jihadist groups ([40] at CB 265).

13. However, the Tribunal found that the “gunda” did not intend to kill the applicant. Nor that the Taliban would “have a priority” in locating the applicant. The Tribunal gave reasons for this. Further, the Tribunal found that the “gunda” and the Taliban were unable to locate the applicant for 5 months when he lived with his school friend, despite the applicant’s claim to the contrary ([42] at CB 265 to [43] at CB 266).

14. The Tribunal rejected the applicant’s claim, as it was repeated in the psychologist’s report, that the “gunda” and his associates were looking for him. The Tribunal noted the applicant’s vague and inconsistent evidence in this regard ([44] at CB 266).

15. The Tribunal found that the applicant would be able to access other forms of employment if he were to return to Pakistan. Further, if he were to return to the horse racing industry, he would not come to the adverse attention of the “gunda” ([46] – [47] at CB 266).

16. The Tribunal also considered issues relating to the applicant’s mental health, sectarian and ethnic violence in Pakistan, and any risk of harm to the applicant as a returnee from the West.

17. The Tribunal concluded that the applicant did not satisfy either of the criteria at s.36(2) of the Act for the grant of a protection visa, and therefore affirmed the delegate’s decision.

Application Before the Court

1. The applicant applied for review to this Court on 17 December 2013. The grounds of the application are as follows:

   “1. The Tribunal made a procedural mistake that the Tribunal collected information from the applicant and rejected the information without proper assessment and proof. The Tribunal simply rejected the applicant’s claim by saying that it is not satisfied but did not give any proper reason. The Tribunal’s rejection is not acceptable by law.

   2. In respect of each of those points of claim made by the applicant the Tribunal was not satisfied that the applicant’s claims were established.

   3. In respect of each of those claims the Tribunal has set out the evidences that it relied upon in reaching its conclusions that it was not satisfied on each particular claim. Each of those conclusions was reasonably open to the Tribunal on the evidence before the Tribunal and no grounds of review arise.

   4. The conclusion of the Tribunal being ‘reasonably open’ does not mean that conclusions were not open; it simply means that there were no legal errors in particular Tribunal coming to its stated conclusion.

   5. The Tribunal made a procedural mistake that the Tribunal did not understand its obligation under the Act how to review an application for protection.

   6. The Tribunal in its decision of 27 November 2013 at point 10 refers to that the’ delegates concerns with the credibility of the applicant’s claims and found inconsistencies that led him to reach a positive state of disbelief in relation to the applicant’s overall case’. Then the Tribunal at point 11 refers to a report from a Clinical Psychologist , Dr.NeeloferRehmanof dated 19 April 2013 an says at point 18 says that the’ Tribunal has considered the psychological report when considering the applicant’s over all evidence but has concerns with the applicant’s credibility.” But the Tribunal has not given any proper reasons and only mentions that the applicant was only able to remember some dates and forgetting other dates. But at point 16 of the decision the Tribunal says that it ‘…accepts the psychologist’s reports in regard to the analysis of the applicant’s mental state that has PTSD, is stressed, unable to concentrate for long periods and suffers memory loss’.

   7. The Tribunal simply rejected the applicant’s claim by saying that it is not satisfied but did not give any proper reason. The Tribunal’s rejection is not acceptable by law.

   8. The Tribunal in its decision at point 20 says that ‘ The Tribunal accepts that applicant has a subjective fear of returning to Pakistan’ but was concerned the objective elements to the fear.

   9. The Tribunal in its decision at point 21 & 22 saysthat’ the applicant fears return to Pakistan, as he fears serious harm because of his past actions refusing to help the gangsters…The applicant claims he is unable to receive protection from the authorities…’

   10. The Tribunal in its decision concludes at points 57 and & 58 that ‘ the Tribunal has considered all the applicant’s claims...and find that the applicant does not have a well –founded fear of persecution for convention reason if he returns to Pakistan… For this reason and the above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligation…Therefore the applicant does not satisfy the criteria set out in s.36(2)(a).’

   11. I am also not satisfied with the interpretation at the interview with the RRT for which I would request to grant me an opportunity to provide the script od the interview CDs.

   12. In order to be recognised as a ‘refugee’, an applicant must demonstrate a well founded fear of being persecuted for Convention related reasons. The term persecution is not defined in the Convention. There has been considerable discussion, legal and academic, domestic and international, regarding the nature of persecution.

   13. The UNHCR Handbook For Procedures And Criteria For Determining Refugee Status characterises persecution as a threat to life or freedom and other serious violations of human rights.

   14. In Chan Yee Kin v Minister For Immigration and Ethnic Affairs (1989) 87 ALR 412 McHugh J describes persecution as ‘harm’, ‘measures in disregard of human dignity’, and ‘infliction of suffering and harm’.

   15. According to Professor Hathaway persecution involves ‘constant infliction of some mental or physical cruelty’ and ‘persistent or urgent efforts to harm or cause to suffer’ and ‘pursuit with enmity’. Professor Hathaway, further adds as follows:

   ‘…persecution may also consist of either failure or inability of a government to effectively protect the basic human rights of populace..specially,…in situations of objective inability to provide meaningful protection.. the state which ignores or is unable to respond to legitimate expectations of protection fails to comply with its most basic duty thereby raising the prospect of protection of a need for surrogate protection’.

   According to above explanations, it is clearly evident that ‘persecution’ need not be torture or incarceration.

   12. In Chan’s case, McHugh J. cited the United States of America’s case ‘Cardoza-Fonseca’, for analysing of what was meant by ‘well founded fear’. According to Cardoza-Fonseka, a person can have a well founded fear of harm or persecution, even if that fear was 10% chance that he will be shot, tortured or otherwise persecuted.

   13. I now request the Honourable Court to kindly set aside the RRT’s decision of 27 November 2013.”

   [Emphasis in original.] [Errors in the original.]

Before the Court

1. The applicant first appeared before the Court on 12 February 2014. He explained that the grounds of the application were drafted by his brother who was not a lawyer. Given the nature of the grounds of the application the Minister pressed that the matter proceed to an immediate “show cause” hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

2. It was appropriate in the circumstances to proceed in this fashion to test whether the grounds raised an arguable case for the relief sought. However, to allow the applicant sufficient time to consult a lawyer, I set the matter down for a show cause hearing in August 2014 and also made orders enabling him to file any amended application and evidence by way of affidavit in support of his grounds.

3. At the show cause hearing on 25 August 2014 the applicant appeared in person. He was assisted by an interpreter in the Urdu language. Nothing further had been filed by the applicant.

4. In the circumstances, the Minister again pressed for the matter to proceed pursuant to r.44.12 of the FCC Rules. The applicant repeated that his brother drafted the grounds of his application to the Court and he did not address the grounds when given the opportunity to do so before the Court. He raised one complaint before the Court. This was that although his English was “poor” he read the Tribunal decision. He stated, without explanation or specific reference to any part of the Tribunal decision record, that a person (“guy”) was kidnapped in Pakistan and held for three to four months, but “the period mentioned was seven months” (see further below).

Issue Before the Court

1. The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought.

2. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. I note that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

3. The relief the applicant seeks is that the Tribunal decision should be quashed and his case returned to the Tribunal for determination according to the law. For current purposes, as set out below, the grounds of the application do not raise an arguable case in law for the relief the applicant seeks.

Consideration: Grounds of the Application

1. Grounds one and seven assert that while the Tribunal heard the applicant’s evidence and claims (“collected information from the applicant”), it rejected his claims “without proper assessment or proof” or “did not give any proper reason”.

2. Any plain, let alone a fair, reading of the Tribunal’s decision record reveals that the Tribunal did consider the applicant’s claims and evidence. It accepted a large part of the applicant’s claims, including his factual account concerning the “gunda” and the proposed race “fixing”.

3. The Tribunal gave extensive reasons for its findings which were reasonably open to it on what was before it. The Tribunal’s conclusions, in regard to both of the relevant criteria for the grant of the visa, were explained and informed by the various findings of fact. The applicant’s grounds here seek impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)), and therefore do not raise an arguable case.

4. Ground two asserts that the Tribunal was not satisfied that the applicant’s claim was established. That is indeed the case. However, this is not an assertion of any legal error on the part of the Tribunal. If the applicant seeks to imply that the Tribunal was in error in not accepting his claims, then given that the Tribunal’s findings were reasonably open to it, the applicant’s complaint is another request for impermissible merits review (Wu Shan Liang). No arguable case is raised.

1. Ground three asserts that the Tribunal’s conclusions in relation to his claims were reasonably open to it and no ground of review arises. That, in the absence of any explanation from the applicant, speaks for itself. This is not an assertion of legal error. No arguable case arises.

2. Ground four again states that there was no legal error in the Tribunal coming to the conclusions it made. No arguable cases is raised.

3. Ground five asserts that the Tribunal made a procedural mistake. It further asserts that the Tribunal did not understand its statutory obligations in law to review the application. Absent any particulars or explanation from the applicant before the Court, the ground remains without substance, and, therefore, does not raise an arguable case. In any event, on the material before the Court, no such failure in understanding on the part of the Tribunal is apparent. No arguable case for the relief sought is raised.

4. Ground six notes that the Tribunal referred to the delegate’s concerns with the applicant’s credibility and that this led the delegate to not believe the applicant’s claims. No error is asserted in the Tribunal noting the delegate’s concerns. This ground appears to take issue in that, although the Tribunal said it considered a report from a clinical psychologist which diagnosed the applicant as “suffering depression and PTSD and suffers memory loss, confusion, anxiety and has difficulties in concentration”, and accepted this report, it still found adversely to the applicant’s credit, as had the delegate (see [11] at CB 261 to [19] at CB 262). That is, that unlike the delegate, the Tribunal had before it psychological reports not available to the delegate, but still found adversely to the applicant’s credibility.

5. The Tribunal did consider two reports from the clinical psychologist (dated 19 April 2013 (at CB 210 to CB 213 and [11] at CB 261) and 7 October 2013 (at CB 250 to CB 251 and [12] at CB 261)). These reported on the diagnosis of the applicant. The Tribunal noted that the reports suggested the applicant’s symptoms were directly related to his experience with the “gunda” ([13] at CB 261).

6. The Tribunal understood the reports were submitted, in part, as going to the matter of the impact on the applicant’s mental and emotional state and the giving of his evidence. The Tribunal, nonetheless, was satisfied that the applicant was competent to give his evidence and, second, found that his adviser made no submissions to the contrary ([14] at CB 261).

7. As to the first finding there is nothing in either report to contradict the Tribunal’s conclusion. The finding that the applicant was competent to give his evidence was reasonably open to the Tribunal on what was before it. As to the second finding, there is no evidence by way of transcript of the Tribunal’s hearing to indicate that the finding was not open to the Tribunal.

8. The Tribunal noted that the psychological reports were from a “professional”. However, it found that it was not the role of such a professional to test the credibility of the applicant’s account, but rather to deal with “the patient’s mental health situation” ([15] at CB 261 to CB 262).

9. The Tribunal saw this as “completely appropriate”. However, it noted that it was not bound to accept the applicant’s history, as it was recounted to the clinical psychologist, but to make its own assessment of the applicant’s claims ([15] at CB 262).

10. The Tribunal distinguished between this assessment of the claims, including the applicant’s credibility, and the assessment of the applicant’s mental state ([16] at CB 262). The Tribunal’s approach was to see the assessment of claims to protection as a matter for it to determine. The assessment of the applicant’s mental state was properly for the professional medical practitioner to make. It accepted the medical diagnosis and, in particular, that the applicant was stressed, unable to concentrate for long periods, and suffered from memory loss ([16] at CB 262).

11. The Tribunal then turned to what it said was its task. It found the applicant’s evidence in relation to the “gunda” and race fixing was inconsistent in the presentation of his own evidence and separately, with that of his two colleagues, who also gave evidence and claims based on the same claimed events ([17] at CB 262).

12. It noted the psychologist’s report, which the Tribunal said suggested that any inconsistences in evidence or lapses in memory were due to the applicant’s mental condition.

13. Nonetheless, the Tribunal found that even allowing for the mental health concerns raised by the clinical psychologist, the applicant’s evidence was still unsatisfactory in a number of ways. This led the Tribunal to find he was not a credible witness.

14. The applicant’s complaint with the Tribunal’s analysis is that it did not given reasons for this latter finding. This cannot be sustained on any fair reading of the Tribunal’s analysis at [18] (at CB 262). While noting the clinical psychologist report, the Tribunal’s reasons for disbelieving the applicant in some elements of his claims was its assessment of the nature and quality of his evidence before the Tribunal. The reasons it gave derived from its observations and assessments of this evidence.

15. The following is in answer to the various elements of the applicant’s complaint in ground six. First, the Tribunal did not simply repeat the findings made by the delegate. The Tribunal accepted those parts of the psychological report, to the extent that those parts were within the psychologist’s professional expertise. That is, the applicant’s mental condition.

16. Second, the applicant either misunderstood, or did not agree with, the distinction the Tribunal drew between the role of the clinical psychologist and its own task. To the extent that the applicant asserts that the Tribunal’s findings were inconsistent, no arguable case is raised. It was open to the Tribunal to accord weight to the clinical psychologist’s report in relation to the matters of the clinical psychologist’s expertise, and then to, nonetheless, evaluate the applicant’s evidence in light of its own task. That is, whether it could be satisfied that the applicant satisfied either of the criteria for the grant of the visa set out at s.36(2) of the Act.

17. Third, the Tribunal did explain and given reasons for its assessment of the applicant’s evidence. Its findings were reasonably open to it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In all, the applicant seeks impermissible merits review. No arguable case is raised by ground six.

18. Ground seven simply repeats the complaints in grounds one and six. It does not raise an arguable case for the same reasons set out above.

19. Grounds eight to ten repeat some of the Tribunal’s findings at [20] (at CB 262) to [22] (at CB 263) and [57] – [58] (at CB 268). No legal error is alleged. No arguable case is raised.

20. Ground eleven asserts that the applicant is not satisfied with the interpretation at the hearing with the Tribunal. The ground asks that the applicant be given the opportunity to provide a “script”. I understood this to be a request to provide a transcript of the hearing to the Court.

21. The applicant was given that opportunity before the Court. I made an order on 12 February 2014 (order 2), giving the applicant that opportunity. No transcript was filed by the applicant. Nor did he press this issue at the hearing over six months later.

22. To the extent that the ground suggests errors of interpretation or inadequate interpretation at the Tribunal hearing, there is no evidence before the Court to show that the applicant was denied a meaningful opportunity to give his evidence nor that there was any denial of procedural fairness, by reason of any interpretation difficulties (Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 and SZRMQ v Minister for Immigration and Border Protection & Anor [2013] FCAFC 142). No arguable case is raised.

23. Grounds twelve to fifteen and the additional “renumbered” ground twelve, relate to the meaning of the term “refugee”. The apparent complaint at ground 15 that the Tribunal limited its consideration of the applicant’s claims to meet the definition of a refugee to the likelihood of “torture” or “incarceration” is not made out on the evidence before the Court. No legal error is otherwise asserted. No arguable case is raised.

24. Renumbered ground thirteen simply asks the Court to set aside the Tribunal’s decision, essentially a restatement of the relief the applicant seeks.

25. In all, none of the grounds of the application raise an arguable case for the relief sought.

Consideration: Complaints Before the Court

1. As stated above, at the hearing before the Court the applicant said he wanted to raise “one point”. This was that a man (“guy”) was kidnapped in Pakistan and was held for 3 to 4 months, but the Tribunal “mentioned” that it was for seven months.

2. The difficulty for the applicant is that he did not refer to any part of the Tribunal’s decision record to make good this assertion. Nor is there any reference in that record to anyone being kidnapped and held for 4 to 5 or 7 months.

3. The only “kidnapping” references relate to the applicant’s claimed abduction, or what could happen to him on return to Pakistan. First, the applicant claim to have been abducted and held by the gunda overnight in relation to the “doping” of the horse. The Tribunal accepted this had occurred ([28] at CB 263 to CB 264 and [37] at CB 265).

4. Second, the applicant’s representative submitted at the hearing that ([56] at CB 268):

   “…the applicant may also be at risk of kidnapping because he will be perceived as wealthy on returning to Pakistan after spending time in a western country.  No further evidence or information to support this claim was provided…”

5. The Tribunal addressed that claim also at [56] (at CB 268):

   “…The Tribunal is not satisfied based on the lack of information before it, including absence of evidence given by applicant about this claim, that having a profile of having spent time in a Western country and being perceived as wealthy is likely of itself to bring an individual to the attention of the criminal elements and/or Taliban in Pakistan to a degree that would attract harm, so that the chance of suffering harm at the hands of the criminal elements and/or Taliban in Pakistan on the basis of having lived and worked in a Western country is remote.”

6. The Tribunal’s conclusion at [56] (at CB 268) was reasonably open to it on what was before it. No arguable case is raised.

7. Given that the applicant was unrepresented before the Court, I did raise with the Minister whether any arguable case is raised by the Tribunal’s analysis at [45] (at CB 266):

   “The Tribunal has considered the applicant’s claim that he would have to return to work in the horse racing industry if returned to Pakistan, as it is the only work he knows and is familiar.  The applicant gave evidence that he was previously employed in sales when living in Pakistan and has been employed as a stable hand and in security while in Australia. The Tribunal does not accept that the only form of work available to the applicant is in the horse racing industry in Pakistan or that it is the only form of work he knows.  The applicant has demonstrated that he is willing to develop new skills and work outside the horse racing industry by working in security and has experience working in sales.  The Tribunal finds that there are other forms of employment available to the applicant apart from the horseracing industry if he chooses.”

8. The question is whether there is an arguable case that the Tribunal expected the applicant to modify his behaviour (employment) if he were to return to Pakistan such as to avoid harm (S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112). This part of the analysis did not involve any consideration of relocation. That is, this is not an issue of the applicant being expected to relocate and change employment to avoid harm (Minister for Immigration and Border Protection v SZSCA [2014] HCA 45). I was persuaded by the Minister’s submission that no arguable case is raised here. Paragraph 45 (at CB 266 and above at [67]) should be read, fairly and holistically, with [46] (at CB 266):

   “A considerable period has passed since the claimed incident.  In that time according to independent country information Pappu’s influence has waned and his political connections changed and lessened.  The independent country information is that corruption within the horse racing industry is rife and that it continues.  The Tribunal does not accept that the applicant would continue to be of interest to the criminal gang for any reason.  The Tribunal finds that if they were genuinely interested in him they would have located him in the time he was in hiding prior to his departure for Australia.  As discussed above, the Tribunal does not accept that the applicant continues to be of interest to the gunda for any reason.  Therefore, the Tribunal does not accept that should the applicant return to work in the horse racing industry in Pakistan, he will come to the adverse attention of the gunda because of his previous actions.”

9. First, I accept that on a fair reading at [45] (at CB 266), the Tribunal addressed the applicant’s claim that he would have to return to horse racing employment if he were to return to Pakistan. At [45] (at CB 266), the Tribunal found there were other forms of employment available to him “if he chooses”. That is, it remained at the applicant’s election. The Tribunal made no finding that he should be compelled to not return to the horse racing industry to avoid harm.

10. Second, even if some error could be argued as arising from that paragraph and the Tribunal’s consideration, [46] (at CB 266) provides the answer to the question posed above. That is, the Tribunal found that even if the applicant returned to the horse racing industry in Pakistan he would not come to the adverse attention of the “gunda”. The Tribunal gave reasons for this. Its finding was reasonably open to it on the material that was before it. In all, no arguable case is raised from [45] – [46] (at CB 266).

Conclusion

1. The grounds of the application to the Court, and the complaint made by the applicant before the Court, do not raise an arguable case for the relief sought. Further, and notwithstanding r.44.13 of the FCC Rules, I cannot otherwise see any jurisdictional error on the part of the Tribunal or that any such argument arises from the material before the Court. It is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 10 December 2014