SZTYZ v Minister for Immigration - [2016] FCCA 1443

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTYZ v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1443

MIGRATION – Application to review decision of Administrative Appeals Tribunal (previously Refugee Review Tribunal) – whether the Tribunal constructively failed to exercise jurisdiction or failed to comply with s.425(1) of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 425

Cases cited:
Appellant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1; [2005] HCA 29
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
Januzi v Secretary of State for the Home Department [2006] 2 AC 426
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45
Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106
Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496
MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541; [2012] FCAFC 99
Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667; [2011] HCA 23
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51; [2007] HCA 41

Applicant:

SZTYZ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 549 of 2014

Judgment of:

Judge Barnes

Hearing date:

6 August 2015

Delivered at:

Sydney

Delivered on:

17 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Chia

Solicitors for the Applicant:

Milestone Legal

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

DLA Piper

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 549 of 2014

SZTYZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 10 February 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant is a citizen of Pakistan from Mingora, the capital of the Swat District in Khyber Pakhtunkhwa Province, formerly the North West Frontier Province. He arrived in Australia in September 2011 and applied for protection in February 2012.
In essence, the Applicant claimed to fear returning to Pakistan because the Taliban (which he had opposed in the past) would kill him.
Relevantly, from 2002 to 2011 the Applicant worked as a welder and fitter on board ships. He returned to Pakistan between voyages. He left Pakistan for the last time in June 2011. He deserted his ship in Australia in September 2011.
The Applicant claimed that the Taliban were hostile towards him because he had educated and supported his wife and sisters who worked in nursing and social work. He claimed that he had opposed the Taliban, that they had threatened to kill him and that they had threatened his wife and sisters so that they would stop working. He also claimed that he had handed his nephew (who was in the Taliban) to the Pakistani army.
The Applicant claimed that the Taliban had arrested him, detained and tortured him, that they had killed people brutally in front of him, but that he had managed to escape after five days. He claimed to fear the same might happen to him if he returned to Pakistan.
In his protection visa application the Applicant stated that he would provide detailed information in a statutory declaration. There is no evidence before the court of any such statutory declaration, although the Applicant provided supporting documentation about his employment. After he subsequently obtained a migration agent, the Applicant, through the agent, provided the Department with a translation of a supporting letter said to be from the Office of the Union Council, Shahdara, Nawakalay, Mingora, Swat dated 25 March 2012 stating that the Applicant’s wife had been a nurse at the hospital, but that the Taliban wanted to kill her and her husband because the Taliban were “totally against female services” and “considered female Nurse Services as unislamic act (sic)”. The letter also stated that in December 2008 the Taliban had threatened “them” to leave the country or face the consequences and that the family had left Swat for another place. It claimed that the Taliban Assembly had decided (and still intended) to kill the Applicant and his wife and that there was an imminent danger of Taliban resurgence in the area.
The Applicant’s adviser also informed the Department by letter of 13 June 2012 that the Applicant claimed his wife had informed him that she had recently received a telephone call from members of the Taliban asking for him. It was also claimed that the Applicant’s nephew had been released by the Taliban (sic) in about early April 2012. The Applicant was also said to claim that the Taliban had ruined his business because they believed he was hostile to them due to the fact his wife and sisters were nurses (which the Taliban did not approve of) and because he tried to stop his nephew from working with the Taliban.
The Applicant attended a departmental interview on 25 June 2012 at which he provided further documents and elaborated on his claims. The documents provided included evidence in relation to the wife’s residence, education and nursing qualifications and an untranslated document under the name of the Minister for Environment for the North West Frontier Province, dated 3 February 2009 (sic) bearing an English language annotation which stated that:
Due to law and order situation in Swat, I strongly recommend that [the Applicant’s wife] may please be transferred to Mansehra on that basis.
In his decision the delegate recorded that at interview the Applicant claimed that he had expressed his opposition to the Taliban while at sea and also on return to his home city of Mingora which was a “strong centre” for the Taliban. He claimed that in 2008 (while he was at sea) the Taliban had announced his name and that of his wife and sister over their radio. He claimed that when he next returned to Pakistan his family had left Swat and gone to Mansehra. He claimed he complained to one of the Taliban commanders about their action targeting poor common people.
The Applicant also claimed that in 2009 he had argued with his nephew about the nephew’s involvement with the Taliban and that he was then “arrested” by the Taliban and held in custody for five days but was able to escape when the army was in the area. He claimed that after he returned to his ship his family told him not to return to Pakistan due to the conditions. However he returned in 2011, found his nephew in Peshawar and handed him over to the army. The nephew was released in 2012 and was no longer aligned with the Taliban.
The Applicant explained that his wife and three children were currently living in Swat, but that his wife did not work there because of the Taliban presence. He claimed that from April 2008 to February 2009 (while he was at sea) his family had lived in Mansehra to avoid the Taliban.
The Applicant was recorded as claiming that his wife had last worked at a hospital in Mingora for a month in April 2011, but that she left after she received a threat.
The delegate refused the application.

Tribunal Review

The Applicant sought review by the Tribunal. His representative provided a detailed written submission addressing issues arising from the delegate’s decision, country information and further supporting documentation. The Applicant attended a Tribunal hearing on 22 July 2013. He had the assistance of an Urdu interpreter. A transcript of the hearing is in evidence before the court as an annexure to the affidavit of Gail Margaret Hargraves sworn on 17 July 2014.
The Applicant’s adviser claimed that the Applicant feared persecution in Pakistan (in particular that he would be seriously physically harmed or killed) because of an imputed political opinion of opposition to the Taliban which would be imputed because he had allowed his wife and sisters to be educated, because they were in employment and because of his role in the arrest of his nephew, a Taliban sympathiser. He also claimed to meet the complementary protection criterion.
The submission included a claim that after a threatening phone call from the Taliban while the Applicant’s wife was working as a nurse’s assistant at a government hospital, the wife had stopped working at the hospital out of a fear of retribution. The Applicant was also said to believe that his actions in reporting the Taliban to the police had increased their animosity to his family.
In its reasons for decision the Tribunal set out the Applicant’s claims in some detail, including as elaborated on at the Tribunal hearing and in the representative’s submissions. It set out its discussion of issues of concern with the Applicant.
The Tribunal accepted that the Applicant came from Mingora in Swat, that he was opposed to the Taliban and that his wife was a nurse who had worked at a particular hospital in Mingora. It also accepted that, as indicated in one of the documents he had provided to the Department, the Applicant’s wife had sought and was granted a transfer to Mansehra due to the law and order situation in Swat in February 2009.
The Tribunal accepted that the Taliban was opposed to girls’ education and to the employment of women outside the home and that while the Taliban was briefly in control of the Swat Valley it had enforced these views.
However it found that even if, as the Applicant claimed, the Taliban had issued a threat against him and his wife in 2008 (saying that they were on their list and that they would kill them) it was relevant that the Applicant himself had returned to Swat on two occasions since that time (in 2009 and 2011) and that his wife and children had continued living in Mingora after he last left Pakistan in June 2011.
The Tribunal accepted that, as the Applicant claimed, when he returned to Swat in 2009 he had a physical altercation with his 16 year old nephew who had joined the Taliban and that the Applicant was subsequently taken into custody by the Taliban, but that he escaped when the Taliban fled at the time of the May 2009 government offensive. However the Tribunal considered it relevant that the Applicant had returned to Swat in 2011.
The Tribunal also accepted that, as the Applicant had consistently claimed, on his last return to Pakistan he had handed his nephew over to the army. The Tribunal addressed the claim at the Tribunal hearing that the Taliban wrongly thought that the Applicant had also reported to the army about them or where they resided, or what they did, but considered it relevant that the Applicant “obviously considered that it was safe for him to return to Swat in 2011 and that his wife and children have continued living there”.
The Tribunal also addressed the Applicant’s claim that a day or two after he handed his nephew to the army, he had received a telephone call from the Taliban referring to their earlier instruction to stop sending his wife to work and to the fact he had handed over “one of their important persons” to the army. The Tribunal had regard to the fact that the Applicant said that his nephew had since been freed by the army.
It observed that while the Applicant also said that he feared that four or five other boys who were missing, it was not clear why he feared these boys. Insofar as the Applicant explained that they had dug mines in the street outside his house in Mingora, the Tribunal found this difficult to accept given his evidence that his wife and children continued to live there. It also found difficult to accept the Applicant’s suggestion that his wife and children were effectively under house arrest, that his wife had given up working and that his children could not continue their education because they would not go outside the house. The Tribunal found that the Applicant’s own evidence suggested that when his family had considered they were in danger they had left Mingora and gone elsewhere, for example to Mansehra, and also that the evidence available suggested that since the army had taken control of the area, people had been able to go to school.
The Tribunal did not accept the adviser’s submission that the Applicant’s actions in reporting the Taliban to the police (allegedly in 2009) had increased the Taliban’s animosity towards his family as the Applicant had told the Tribunal that there had been no police in the area in 2009. The Tribunal did not accept that because the Applicant handed his nephew to the army in 2011, the Taliban regarded him as having given information about them to the army. It had regard to the fact that the Applicant had not suggested that there was any accusation of this nature in the telephone call he claimed he had received a day or two after he handed his nephew to the army.
The Tribunal considered the adviser’s submission about the security situation in the Swat Valley and fears of a Taliban comeback once the army withdrew from the area, but found that the evidence cited did not suggest that the army was withdrawing from the area. While it accepted that there were fears of a Taliban comeback, it did not accept there was a real chance that the security situation in Pakistan, specifically in Swat, would deteriorate in the reasonably foreseeable future. Despite a 2013 bomb attack in Mingora, it was of the view that there was no more than a remote chance that the Applicant would be affected by terrorist bombings if he returned to his home in Mingora now or in the reasonably foreseeable future. The Tribunal was also of the view that the Applicant’s claim at the hearing that he feared that his nephew might “blast” the whole family was fanciful or far-fetched.
The Tribunal continued at [29]:
[The Applicant] has referred to targeted killings, and as I indicated to him I accept that targeted killings continue to occur in Swat. His representatives have referred in this context to the shooting of Malala Yousafzai in Swat in October 2012, and I accept that the Taliban have targeted people who have spoken out against extremism ... However, as I put to him, I have difficulty in accepting that there is a real chance that he will be a victim of a targeted killing if he returns to his home in Swat, nor [sic] or in the reasonable foreseeable future. I accept that he is opposed to the Taliban, but he is clearly not on his evidence a prominent opponent, or someone who has campaigned against the Taliban. Even if, as he has claimed, the Taliban issued a threat against him and his wife in 2008, saying that they were on their list and that they would kill them, they have not by his account attempted to make good on this threat. He was taken by the Taliban in 2009 but escaped, as referred to above he obviously considered it safe for him to return to Swat in 2011, and his wife and children have continued living there. Even if, as [the Applicant] has claimed, he has attracted the enmity of the Taliban for the reasons he has given, and they have made threats against him and his family, I do not accept on the evidence before me therefore that there is a real chance that he will be persecuted for reasons of his real or imputed political opinion opposed to the Taliban if he returns to his home in Mingora now or in the reasonably foreseeable future.
The Tribunal considered the adviser’s submission that the Applicant also feared he would be seriously physically harmed or killed by militant Sunni groups in Pakistan. It noted that the Applicant was a Sunni Muslim and had not himself made such claims. It expressed the view that this part of the adviser’s submission was misconceived, as were the adviser’s references to attacks on Shia Muslims. It accepted that the Applicant was a Sunni Muslim and did not accept on the evidence before it that there was a real chance he would be persecuted by militant Sunni groups if he returned to his home in Mingora now or in the reasonably foreseeable future.
Insofar as the Applicant referred to the circumstances in which he deserted his ship as supporting his claimed fear for his life if he returned to Pakistan, the Tribunal reiterated that for the reasons given it did not accept that he had a well-founded fear of persecution for one or more of the Convention reasons if he returned to Pakistan now or in the reasonably foreseeable future.
The Tribunal considered the complementary protection criterion. It found, having regard to its findings of fact, that it did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s removal from Australia to Pakistan there was a real risk he would be killed or otherwise suffer significant harm at the hands of his nephew, the Taliban or other Sunni militant or terrorist groups active in that country. It was not satisfied that he met the complementary protection criterion.
The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed on 7 March 2014. He now relies on a further amended application filed on 6 August 2015. There are three grounds in the further amended application (referred to for convenience as the application).

Ground 1

The first ground is that the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction in considering the Refugees’ Convention criterion. The particulars to this ground are as follows:
The applicant, a citizen of Pakistan, claimed inter alia to fear persecution because he had supported his sisters and his wife obtaining an education and working as nurses and social workers, thereby giving rise to the imputed political opinion of being opposed to the Taliban. The applicant said that the Taliban had in the past threatened him and his wife and that he had made the “mistake” of challenging Maulana Fazlullah, the leader of the Taliban in Swat Valley, in relation to why women could not work. The applicant also claimed that they had taken steps to avoid harm, which had included his wife ceasing to work and he and his family temporarily leaving Swat.
The Tribunal, relying upon “country information”, accepted at [29] of its Statement of Decision and Reasons that the Taliban continued to carry out targeted killings in Swat against “those who have spoken out against extremism” but reasoned that the applicant would not be targeted because he had not been “a prominent opponent or someone who [had] campaigned against the Taliban”.
The Tribunal did not consider whether the applicant had in the past modified his conduct so as to avoid serious harm due to a well-founded fear of persecution.
Further or in the alternative, in finding that the applicant “obviously considered it safe” because he returned to Swat in 2009 and 2011 and his family continued to live there, the Tribunal implicitly held that the applicant could have relocated to another area of Pakistan without considering whether relocation was reasonable in all of his circumstances.
It was submitted that the Tribunal fell into error of the kind identified by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 and that such error was revealed in paragraph 29 of the Tribunal decision set out at [27] above.

The Applicant pointed to the fact that in Appellant S395/2002 the Tribunal had considered a claim by the appellants to be homosexual men from Bangladesh and to fear persecution by reason of membership of that particular social group. While the Tribunal had accepted that it was not possible to live openly as a homosexual in Bangladesh, it had found that the appellants had “clearly conducted themselves in a discreet manner” and that there was “no reason to suppose that they would not continue to do so if they returned home now” (see Appellant S395/2002 at [30] per McHugh and Kirby JJ).
Reliance was placed on the view of McHugh J and Kirby J at [43] that:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
Similarly, Gummow and Hayne JJ stated at [80]-[82]:
If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
… to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection ... No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
It was contended that while the Tribunal had accepted that the Applicant was opposed to the Taliban, it had not accepted that there was a real chance he would be harmed in the future because he had not been a prominent opponent or someone who has campaigned against the Taliban, because even if the Taliban made an alleged threat to kill him in 2008 it had not attempted to do so and because he had obviously considered it safe to return to Swat in 2011, and that the Tribunal had therefore proceeded on the basis that because the Applicant had not been persecuted in the past he would not be persecuted in the future.
However it was pointed out that the Tribunal had accepted that the Applicant’s wife had ceased working as a nurse after receiving threats and that she had previously left Swat to go to Mansehra and that the Applicant had also claimed (and the Tribunal did not dispute) that due to threats that had been made, his family had told him not to return to Swat and that he had instead gone to Karachi and that during his last voyage his family had told him it was not safe to return to Pakistan before he jumped ship in Adelaide.
The Applicant submitted that by “directing” his wife to cease work and by removing himself and his family from Mingora in the past, he had acted to suppress his own religious and/or political views and freedoms. It was submitted that in assuming that the Applicant’s future conduct would be the same as his past conduct, the Tribunal was in effect reasoning in the same way that the Tribunal in Appellant S395/2002 had reasoned, namely that he had conducted himself in a discreet manner in the past and that there was no reason to suppose that he would not continue to do so if he returned home.
It was submitted that in proceeding in this manner the Tribunal had asked itself the wrong question because it reasoned that if the Applicant had not been the victim or acted in a way that would have made him the likely victim of targeted attacks in the past, he would not be the victim of targeted attacks in the future, without considering whether he had, due to a well-founded fear of harm, modified his conduct in the past so as to avoid being the victim of a targeted attack.
Counsel for the Applicant clarified that it was submitted that the threats made in 2008 were made to both the husband and the wife and that it could be inferred that when the wife stopped working that was a joint decision of the husband and wife and amounted to a past modification of his conduct, although the wife implemented the modification of conduct (both initially and after another threat in 2011 when she had briefly started working again). It was contended that the Applicant’s claim was that the initial threat was due to the fact that he supported his wife working and that in this sense the threat was made against him. On this basis it was submitted that while the modifying conduct was implemented by the Applicant’s wife that did not necessarily mean that it was the conduct of the wife alone.
The Applicant submitted that the Tribunal had erred in failing to consider that the Applicant had modified his conduct in the past so as to avoid serious harm and in then assuming that as the Applicant had not been harmed in the past he did not have a well-founded fear of persecution in the future. It was contended that it was implicit in the Tribunal’s reasoning that what had happened in the past, including such modification of conduct, would happen in the future.
The Applicant submitted that the present case was not akin to Appellant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1; [2005] HCA 29 in which the High Court had held that there was no error of the kind identified in Appellant S395/2002. In that case the Tribunal had accepted that the appellant was a Christian from Iran, but had concluded that he would not choose to broadcast his practice of Christianity generally or to proselytise conspicuously in Iran and had found that he was not constrained in the practice of his faith and nor would he be so constrained in Iran “due to a perception that to behave more openly or aggressively would leave him at risk of persecution” (see NABD at [156]). The Applicant pointed out that in NABD Hayne and Heydon JJ had been of the view (at [168]) that at no point in its reasoning had the Tribunal in NABD “diverted from inquiring about whether the fears which the appellant had were well-founded. It did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran” and based on the material before it (including about what the appellant had done while in detention) had concluded that if the appellant were to practise his faith in Iran in the way he chose there was not a real risk he would be persecuted.
In contrast, it was submitted that in this case the Tribunal did not ask how the Applicant would conduct himself if he were to return to Pakistan, but that it had only sought to determine whether he would be the likely victim of a targeted attack by reference to past events in his home town of Mingora.
The Applicant also submitted that contrary to the position in this case, it was apparent that in NABD the High Court had understood that the Tribunal had concluded that there would be no abrogation of a right or freedom protected by the Refugees’ Convention (cf SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [29] and [32], and compare SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51; [2007] HCA 41 at [15]-[16], discussed in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45).
The Applicant submitted that it was apparent that the Tribunal in this case had not made any finding as to how in fact the Applicant would conduct himself in the future, consistent with the fact that it did not ask any questions at the hearing about what the Applicant would actually do if he returned to Pakistan. It was contended that the Tribunal was concerned only with the Applicant’s past “movements” and that that was so notwithstanding that as a ship deserter the Applicant’s future conduct would necessarily differ from that of the past.
In addition, it was said to be implicit in the Tribunal’s reasoning that the Applicant “obviously considered it safe” because he had returned to Swat in 2009 and 2011 and his wife and children continued to live there, that the Tribunal believed that the Applicant had a viable internal relocation alternative, but that the Tribunal had failed to consider whether relocation was reasonable in all the circumstances.
It was pointed out that the Applicant’s adviser had made specific submissions on the issue of internal relocation to which the Tribunal did not refer. The Applicant submitted that the Tribunal had failed to address the question of whether relocation was reasonable, either in its reasons or at the hearing and that in proceeding on the assumption that the Applicant had the option to relocate (without considering whether relocation was reasonable in the circumstances) the Tribunal had made an error of the kind found by the High Court in Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667; [2011] HCA 23 and also in SZSCA at [31]-[33] per French CJ, Hayne, Kiefel and Keane JJ in which the High Court had characterised such an error as a failure to consider the particular circumstances of the applicant and therefore a failure to correctly identify or address the relevant question. The suggested error was also said to be comparable to the error identified by the Full Court of the Federal Court in MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541; [2012] FCAFC 99 at [19] per Flick and Jagot JJ and at [38] per Yates J.
Counsel for the Applicant contended that this asserted error was not separate, but related to the asserted error in paragraph 29 of the Tribunal reasons, insofar as both errors were said to involve the Tribunal assuming that the Applicant chose to conduct himself in a certain way unaffected by the fear of harm. It was submitted that to ask a wrong question in respect of internal relocation was to ask the wrong question in respect of whether the Applicant had a well-founded fear of harm (see Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at [440] per Lord Bingham followed in SZATV). The Applicant submitted that just as the absence of past harm did not necessarily mean an absence of a well-founded fear of future harm, the fact that the Applicant had not relocated and his family remained in Swat also did not necessarily mean that the Applicant did not have a well-founded fear of harm.
This ground is not made out. As the First Respondent submitted, the decision of the Tribunal in this case does not raise an issue to which Appellant S395/2002 or the line of authority following that case is of relevance. As stated in SZSCA at [15]-[18], the principle in Appellant S395/2002 concerned a situation in which the Tribunal had focused on an assumption about how persecution might be avoided by an applicant in the future, instead of assessing whether the applicant’s fear of persecution was well-founded. In other words, Appellant S395/2002 involved circumstances in which the Tribunal in effect required an applicant to alter his or her behaviour in some way in the future.
However in this case the Tribunal clearly found that there was not a real chance that the Applicant would face a well-founded fear of harm if he returned to his home area in Mingora, which was no longer under Taliban control. It did not ask whether the Applicant could avoid persecution in the future or make any assumption about how persecution by the Taliban might be avoided by the Applicant changing his behaviour in any way. Moreover, given the Tribunal’s findings about circumstances in Mingora, the fact that the Applicant’s wife may be said to have changed her behaviour in the past (in the sense of ceasing work for a period) does not raise an issue of the sort considered in Appellant S395/2002 (even if this could also be seen as the past behaviour of the Applicant).
As the First Respondent contended, in this case the Tribunal did not require or proceed on the basis that the Applicant would or could avoid persecution by the Taliban on return to his home area in Pakistan by altering his behaviour (whether directly or in association with his wife). Whatever view is taken about the application of the principle in Appellant S395/2002 in light of SZSCA, the Tribunal’s reasoning in this case did not involve any matter that transgressed any principle from Appellant S395/2002.
The issue that was the subject of consideration in Appellant S395/2002 would have arisen if the Tribunal had made some assumption about future activity or future behaviour. However the mere fact that someone (whether it be the Applicant or his wife) had altered his or her behaviour in the past allegedly to avoid harm, does not in itself mean that error is established on the basis of the principles deriving from Appellant S395/2002. The Tribunal did not treat what had occurred in the past as determinative of the future. Rather, it had regard to past events (including the Applicant’s claims about threats and also his return to Mingora on two subsequent occasions) as a guide to what would happen in the future as an integral part of the process of making a determination concerning the chance of something occurring in the future.
As the High Court pointed out in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22 at [18], it was open to the Tribunal to have regard to the past as a guide to what would occur in the future, given that in many cases:
… determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.
However, as the First Respondent submitted, the Tribunal did not have to make a finding about whether the Applicant had a well-founded fear of harm in the past, as opposed to at the date of its decision (Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496 at [35]-[36]). It properly considered that issue in light of its conclusions about past events, the Applicant’s return to and his family’s residence in Mingora and the current situation in his home area. It also had regard to the fact that he was not a prominent opponent or campaigner against the Taliban in rejecting his claim to have a well-founded fear of being a victim of the targeted killings that continued to occur in Swat.
Further, and contrary to what appeared to be suggested in the Applicant’s submissions, the Tribunal was not obliged to make specific findings about the consequences of the Applicant possibly being unable to resume work as a seaman. This was no part of the Applicant’s claims (see Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 at [32]-[33] and [42]-[43]). More generally the Applicant has not identified any clearly articulated claim that was not considered by the Tribunal.
As to the contention (in the last particular to ground 1) in relation to relocation, the Tribunal noted that the Applicant’s wife and children had moved from Mingora in the past, but also had regard to the fact that they had subsequently returned to Mingora. While the Tribunal acknowledged that the delegate had found not only that the Applicant did not have a well-founded fear of harm in Mingora, but also that there was no reason why the Applicant could not relocate if he wished to do so, the Tribunal neither made, nor did it have to make, any relocation finding in this instance. This was because the Tribunal considered that if the Applicant returned to his home area (which was plainly Mingora) he would not have a well-founded fear of harm there. In such circumstances no issue as to relocation arose. Hence it was unnecessary for the Tribunal to address the Applicant’s adviser’s submissions about internal relocation. It did not fall into an error of the nature contended for by the Applicant. It did not make an assumption that the Applicant had the option to relocate.
Insofar as the Applicant’s contention was that relocation principles were relevant in relation to the Tribunal’s findings about what had occurred in the past (in particular in 2009 and 2011), as the First Respondent pointed out, what is in issue is the Tribunal’s consideration of whether the Applicant had a well-founded fear of harm in the reasonably foreseeable future. While the events of the past may inform any conclusion in that respect, the mere fact that the Applicant and/or his family may be said to have relocated in the past did not give rise to any obligation on the Tribunal to consider the reasonableness of relocation in the future (given that it had concluded that there was no well-founded fear of persecution in the Applicant’s home area) or to investigate whether any past relocation was reasonable or unreasonable.
This ground is not made out on any basis contended for by the Applicant.

Ground 2

Ground 2 takes similar issue with the Tribunal’s consideration of the complementary protection criterion. It is that in finding it did not have substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Pakistan there was a real risk the Applicant would suffer significant harm the Tribunal had asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
This ground relies on the particulars to ground 1. It is asserted that in making its complementary protection finding the Tribunal had asked itself the same question it had asked in relation to the Refugees’ Convention finding and that therefore it had not asked whether there was a “real risk” the Applicant would suffer significant harm if he moved to Pakistan.

Counsel for the Applicant acknowledged that in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 the Full Court of the Federal Court held that the standard of proof for whether there was “real risk” of harm for the purposes of the complementary protection test in s.36(2)(aa) of the Migration Act 1958 (Cth) was the same as that for whether there was a “real chance” of harm for the purposes of the Refugees’ Convention criterion (at [246] per Lander and Gordon JJ and also see Besanko and Jagot JJ at [297] and Flick J at [342]).
However it was submitted that in this case the Tribunal had simply reasoned that having regard to its earlier findings of fact it was not satisfied that the Applicant met the criteria for complementary protection. Issue was taken with the fact that the Tribunal did not consider any other facts as material to its finding in that respect. It was submitted that if the Tribunal had considered other facts it would have been required by s.430(1)(c) of the Act to set out its findings in respect of such factual issues in its statement of reasons. On this basis it was said to follow that the failure of the Tribunal to consider whether the Applicant had modified his conduct in the past due to a well-founded fear of harm was also a failure to ask itself the correct question in determining whether there was a “real risk” the Applicant would suffer significant harm as a consequence of being removed to Pakistan.
It was also submitted that it followed that in assuming that the Applicant could relocate within Pakistan without considering whether internal relocation was reasonable in all the circumstances, the Tribunal had failed to ask the correct question in determining whether there was a “real risk” that he would suffer significant harm. Hence it was suggested that the Tribunal had failed to take into account all of the circumstances of the Applicant (see Januzi and SZATV) and that it did not ask itself the right question as required in s.36(2B)(a) of the Act.
However, as the First Respondent submitted, this ground is based on the same misapprehension as to the application of the principles considered in Appellant S395/2002, as was discussed in relation to ground 1. In circumstances where the Tribunal had found that the Applicant could return to his home village where he did not face a real chance of serious harm constituting persecution it was open to it to conclude on the basis of its findings of fact (including about the Applicant’s safety in his home area) that it did not accept that there was a real risk (see SZQRS) that he would be killed or that he would otherwise suffer significant harm at the hands of his nephew, the Taliban or other Sunni militant or terrorist groups as he claimed. In these circumstances the Tribunal did not fall into an error of the nature considered in Appellant 395/2002. It did not assume that as the Applicant had modified his conduct in the past to avoid harm from the Taliban he would do so in the future. It did not need to consider relocation in relation to the complementary protection criterion in light of its conclusion that there were not substantial reasons for believing that the Applicant had a real risk of suffering significant harm in his home area.

Ground 3

The third ground is that the Tribunal failed to comply with s.425 of the Act. The particulars to this ground are as follows:
The Tribunal considered it relevant that the applicant considered it safe to return to Swat in 2009 and 2011.
The Tribunal did not invite the applicant to give evidence and present arguments on the issue of why he returned to Swat when he claimed to have a well-founded fear of harm.
In written submissions the Applicant referred to the consideration of procedural fairness requirements in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 at [31] in which the Full Court of the Federal Court suggested that where an entitlement to procedural fairness in relation to the exercise of statutory powers arose, it extended to “require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it was made” and to “advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material”, but that otherwise the decision-maker was not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
The Applicant contended that in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 the High Court had applied what the Full Court said in Alphaone in the context of s.425 of the Act, in finding that s.425 required the Tribunal to specifically identify the issues that were dispositive of the review and to invite the Applicant to give evidence and make submissions on such issues. It was pointed out that the Court had stated (at [47]) that:
… where … there are specific aspects of an applicant's account that the tribunal considers may be important to the decision that may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
It was submitted that in this case, while there may have been good reason for the Applicant to return to Swat in 2009 and 2011, at the hearing the Tribunal had erred in failing to ask the Applicant why he had returned to Swat if he feared the Taliban. It was also pointed out that the Tribunal had not put this issue to the Applicant in a letter pursuant to s.424A of the Act. It was asserted that the Tribunal had never put to the Applicant that he must have thought it safe in Swat if he returned there in 2009 and 2011.
The Applicant acknowledged that during the hearing (transcript, page 19) the Tribunal had indicated to him that it accepted that there were targeted killings in Pakistan, but that it had difficulty accepting there was a real chance or real risk that he would be a victim of such a targeted killing. However it was contended that the Tribunal had nonetheless erred in failing to put to the Applicant the potential adverse conclusion referred to in ground 3. This was said not to be a matter obviously open on the known material having regard to the delegate's decision (cf SZBEL at [35]). It was pointed out that the delegate had not disputed that the Applicant had a subjective fear of harm and had accepted that threats had been made in the past. The delegate had found that while the Swat Valley was still a relatively dangerous and volatile place, conditions had improved, that the military could secure the Applicant’s security and that the evidence pointed to the authorities being willing and able to provide effective protection for the local populace. The delegate had also found that if there was a resurgence of the Taliban in the Swat Valley the Applicant could relocate to another part of the country where he would not be at risk of harm from the Taliban.
It was submitted that the Tribunal had taken a different approach and that it erred in failing to raise with the Applicant the issue of why he had returned to Swat if he feared the Taliban. It was submitted that this issue was central to the Tribunal's reasoning and contended that it was not sufficient for the Tribunal to simply get the Applicant to affirm the details he had previously provided, but that it had to put to the Applicant its potential adverse conclusion that it was of the view that he had obviously considered it safe to return to Swat in 2009 to 2011. Hence it was submitted that the Tribunal had erred in failing to invite the Applicant to give evidence and present arguments on why he had returned to Swat when he claimed to have a well-founded fear of harm there.
The First Respondent conceded that the Tribunal had not explicitly put to the Applicant the possible conclusion that, because he had been back to his home town of Mingora several times and his family had returned to live in Mingora, that was a basis on which to find his fear was not well-founded. However the First Respondent pointed out that at the hearing the Tribunal had raised with the Applicant on a number of occasions the issue of why he feared harm in Swat, as well as his return to Swat in 2009 and 2011. It was contended that the Applicant’s past return on two occasions to an area where he claimed to fear harm was of obvious relevance and that it could not be said that the Tribunal's conclusions in this respect were not obviously open on the known material (see Alphaone). The First Respondent submitted that the Tribunal had sufficiently put the issue of his past returns to Swat to the Applicant in the hearing and that it was implicit that both the Applicant and the Tribunal member understood the obvious relevance of such returns.
It was also pointed out that it was for the Applicant to provide whatever evidence or argument he wished to put in response to the issue the Tribunal had raised about his returns to Swat in 2009 and 2011 (see Abebe at [187]) and that the Tribunal was not otherwise required to expose its thought-processes or preliminary views for the Applicant's comment (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9]).
As the First Respondent submitted, the delegate found that the Applicant did not have a well-founded fear of harm in Mingora (in the Swat Valley) having regard to evidence about the current security situation and the control of the area by Pakistani authorities, albeit it also considered relocation as an alternative even if there was a resurgence of the Taliban in the future. The Tribunal found that the Applicant did not have a well-founded fear of harm in Mingora.
It is apparent from the transcript of the Tribunal hearing that the Applicant was asked on several occasions about his past returns to Mingora (including at pages 14 and 16 of the transcript). The relevance of such returns was made clear. For example, at transcript page 16 (after obtaining confirmation of the Applicant’s evidence about his return to Pakistan in 2011 and to Swat where his wife and children were living), the Tribunal explained:
TRIBUNAL MEMBER: What I am trying to look at [Mr Applicant] is what it is you actually fear if you go back to Swat. You said that this death threat against you was made back in 2008.
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   And since then you have been back in Swat - back to Swat on two occasions.
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   On one occasion, you claimed you were captured by the Taliban and escaped.
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   And that was in 2009?
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   But then in 2011, you went back to Swat again.
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   And that is when you claim you handed your nephew over to the army.
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   So why do you fear returning to Swat now?
At that point the Applicant claimed that since that time some people had been killed in Swat. The Tribunal member continued:
TRIBUNAL MEMBER:   Well, [Mr Applicant], I accept that as you say there are targeted killings going on, but it is difficult to accept that there is a real chance, that there is a real risk that you will be the victim of targeted killing.
After further discussion in relation to the Applicant's claims about his nephew and his fears of four or five boys in his area (page 18 of the transcript) the Tribunal (having again confirmed that the family returned to the village in 2011) stated:
TRIBUNAL MEMBER:   But, [Mr Applicant], what I am looking at is the risk to you if you go back to your home in Swat. Now, from what you have told me today, your wife and children are living there, your nephew is back home.
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   And I am looking at the risk to you if you go back home.
APPLICANT (Through interpreter):   Because those Taliban who are missing, I fear those from those are the ones.
TRIBUNAL MEMBER:   I have difficulty in accepting that there is a real risk that anything is going to happen to you from those Taliban or any other Taliban if you go back there.
APPLICANT (Through interpreter):   When I even think of returning home I get scared, every time I speak to them they say.
TRIBUNAL MEMBER:   But you said your original death threat, the one in 2008, was against you and your family.
APPLICANT (Through interpreter):   Yes.
TRIBUNAL MEMBER:   Your family is back there. They have been living there.
APPLICANT (Through interpreter):   They are living there but they are living with fear and they have fear that anything can happen at any time. My children, they can't go for their education because they can't go outside the house, and the reason they don't want to go out is because they don't want any harm to me. My wife received a call in November 2012 that, “If you don't join your job, your job or your employment will be finished.” And then at that time, also there was [not clear on CD] issue was also there, so they advised her that it is better for her to stay at home and not go out. At the moment, my wife and children, it is like they are under house arrest, and what sort of life is this?
TRIBUNAL MEMBER:   It is difficult to accept, [Mr Applicant], because as is reflected in the press reports to which your representatives have referred, since the army took control, people are able to go to school, for example.
APPLICANT (Through interpreter):   At that time, innocent people were being killed and now people are being targeted.
TRIBUNAL MEMBER:   As I have said, [Mr Applicant], I accept that there are targeted killings, but it is difficult for me to accept that there is a real chance or a real risk that you will be the victim of one of those targeted killings.
While the Tribunal did not explicitly put to the Applicant the possible conclusion that because he had returned to his home town several times and his family had returned to live there, there was a basis on which to find that his fear was not well-founded, it did raise with the Applicant his past returns to Swat and the fact that his family lived there in the context of asking why he feared returning there now (and its difficulty in accepting that there was a real chance or real risk that he would be the victim of a targeted killing in Swat).
The fact that the Applicant had returned to an area in which he claimed to fear harm on two occasions in the past and the fact that his wife and children were presently living there, were of obvious relevance to the Tribunal’s consideration of whether the Applicant had a well-founded fear of harm in his home area. The Tribunal was not obliged to put its thought processes to the Applicant for comment. It sufficiently raised with him the fact of his past returns to Swat and, in that context, the issue of why he feared harm in Swat were he to return in the future.
This ground is not made out.
As none of the grounds relied on by the Applicant has been established, the application must be dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate:

Date: 17 June 2016