SZUJT v Minister for Immigration
[2016] FCCA 453
•7 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUJT v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 453 |
| Catchwords: MIGRATION – Application for review of Tribunal’s decision – whether Tribunal breached s.424 or s.424A of the Migration Act 1958 (Cth) – whether Tribunal erred in its consideration of relocation – whether Tribunal failed to give reasons – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424, 424A, 430, 476 |
| SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 SZSQG v Minister for Immigration & Anor [2013] FCCA 612 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 Randhawa v Minister for Immigration, Local Government [1994] FCA 1253; (1994) 52 FCR 437 SZOJV & Ors v Minister for Immigration & Anor (No.2) [2012] FMCA 29 SZOJV & Ors v Minister for Immigration [2012] FCA 459 W404/01A OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255 MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 SZTOO v Minister for Immigration & Anor [2015] FCCA 1631 SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration v Singh [2014] FCAFC 1; (2014) 308 ALR 280 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 |
| Applicant: | SZUJT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1425 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 3 November 2015 |
| Date of Last Submission: | 3 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr S J Prince by direct access |
| Solicitor for the Respondents: | Ms S Burnett of Clayton Utz |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 27 May 2014 and amended on 3 November 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1425 of 2014
| SZUJT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 27 May 2014 and amended on 3 November 2015 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 25 April 2014 which affirmed the decision of the Minister’s delegate’s not to grant the applicant a Protection (Class XA) visa.
Background
Before the Court in evidence is the bundle of relevant documents filed, and tendered, by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents. I note also before the Court is a bundle of documents tendered by the applicant and headed “Auspak International” (“AE1”). This was provisionally admitted.
The applicant is a citizen of Pakistan (CB 7). He arrived in Australia on a “Short Term Business Visa” on 21 April 2011. He applied for a protection visa on 8 June 2011 (CB 1 to CB 217, including accompanying documents). He was assisted in his application by a registered migration agent. Relevant to the application before the Court, included in these statements was a letter from a “Mr Syed Shuail Razvi” identified as the “CEO Auspak International Pakistan” (CB 74).
The applicant provided a “statement” outlining his claims for the protection visa to the Minister’s department, with his application (CB 213 to CB 217). Essentially, he claimed to fear harm due to his Hazara ethnicity, his Shia religion, his “being part of a very high level/profile Hazara family”, his occupation as an “education consultant”, and “due to [him] being a famous Shia poet” (CB 213).
The applicant had previously applied for a protection visa in Australia in 2000. He was granted a temporary protection visa at that time. He subsequently admitted that he had made a “false declaration” that he was from Afghanistan to remain in Australia. However, in his statement he claimed that he “did not wish to lie but [he] was certain [he] would be killed” if he returned to Pakistan. Therefore, he “accepted” what the “people smuggler” had told him. That is, to say he was from Afghanistan (CB 213). He claimed that he returned to Lahore in Pakistan in 2003 as his first wife “said she would divorce [him] if [he] did not return”, because she did not understand why he could not “bring her to Australia” (CB 213).
He claimed that he fled Pakistan on the first occasion because he believed he would be killed by Sunni extremists, and particularly because he was a member of a “high profile” Hazara family. He also claimed that he felt he could return because “there was a lull in the activity of the Sunni extremists”, therefore he was “less at risk” (CB 213).
The applicant claimed that at the end of 2005, after his return to Pakistan, he divorced his wife, left Lahore, and he started work as a “Director/Franchise” of “Auspak international”, which he claimed was “the leading education consultant” in Pakistan (CB 214). He also claimed that he started a business in Dubai in 2008/2009, because the “situation started to get worse” in Pakistan at this time, given that the Sunni extremist groups had risen in power (CB 215). He felt that he was targeted because of his profession and his ethnicity.
The applicant claimed that he closed his business in Dubai and returned to Pakistan in 2010 (CB 215). In December 2010, he received a “telephone threat” and was told that he had been “sending Muslim students to non Muslim countries”, and “turning these Muslim students into non Muslims” (CB 215). He claimed that he also feared harm as he “was aware of many Hazara Shia’s who had received similar threats and had been killed”. He stated that he “discussed” his fears with the “CEO of Auspak International, Mr Syed Sohail Rizvi” (CB 215). He claimed that he was “advised” to close down his office in Quetta, Pakistan, as soon as possible. Further, he claimed that he reported the threat to the police, and he was told that “everyone faces this threat” and that there was “nothing” that they could do protect him.
The applicant claimed that after this he moved to Karachi in Pakistan, and found that the “situation was the same” (CB 215). He claimed that he “participated in religious occasions” and “was well known as poet” in both Quetta and Karachi (CB 215). He claimed that he “was scared that Sunni extremists” would follow and kill him, because of this.
The Delegate
The delegate refused the grant of the protection visa on 12 November 2012. The delegate accepted that the applicant faced harm in Quetta, however found that he could relocate within Pakistan (CB 255 to CB 281, and in particular CB 276 to CB 277).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 29 November 2012 (CB 282 to CB 288). He was again assisted in this application by a registered migration agent. He attended a hearing before the Tribunal on 7 March 2014. His representative had also provided further documents to the Tribunal on 17 February 2014, including written submissions, a further statement from the applicant, and various documents seeking to support the applicant’s claims, including statements from third parties (CB 302 to CB 448).
The Tribunal wrote to the applicant on 20 March 2014 inviting him to comment on, or respond to, certain information. In particular, that there was information that showed he had continued to work as an education consultant until his departure from Pakistan to Australia in April 2011, and country information in relation to Shias in Lahore and document fraud in Pakistan (CB 450 to CB 452). Further, that country information indicated that the name of the CEO of Auspak International was “Mr Syed Sohail Rizvi” not “Mr Syed Shuail Razvi”, as named in the letter provided with his application (CB 451 and see CB 74).
The applicant’s representative provided documents in response on 3 April 2014 (CB 457 to CB 477), including written submissions and a further statement from the applicant. On 10 April 2014, the applicant’s representative provided further documents to the Tribunal (CB 478 to CB 492).
The Tribunal affirmed the delegate’s decision on 25 April 2014 (CB 495 to CB 523). The Tribunal had “much difficulty” with the applicant’s claims of past harm, in particular the threat he received in December 2010. The Tribunal had “doubts” that the applicant worked for “Auspak International” ([10] at CB 497):
“The Tribunal has much difficulty accepting this story. Firstly, whilst the Tribunal accepts that the applicant has worked as the CEO of Offshore Education Consultants, the Tribunal doubts that the applicant ever worked for Auspak given that the letter in support of the applicant’s employment has been signed by a ‘Shuail Razvi’ when independent evidence indicates that the CEO of Auspak is Sohail Rizvi. The Tribunal doubts that the CEO would be incorrectly named on correspondence as the applicant and a subsequent letter allegedly from Suhail Rizvi have claimed. In reaching this conclusion, the Tribunal is also mindful that DFAT has indicated that document fraud is common in Pakistan.”
Further, also with reference to the concern it expressed in its letter dated 20 March 2014, the Tribunal had ([11] at CB 497 to CB 498):
“…difficulty accepting that the applicant closed down the Auspak operation in Quetta in December 2010 because he feared for his safety and the safety of his staff, yet the documentation on file clearly suggests that the applicant’s own offshore education consultancy continued out of the same address after that date. Indeed, that documentation suggests that the applicant was still signing documentation for Offshore Education Consultants and using the Ali Plaza Alamdar Road Quetta address as late as March 2011. This documentation includes an Appointment of Agent contract between Offshore Education Consultants and Austwide Institute of Training signed by the applicant on 6th February 2011, a letter dated 10 February 2011 addressed to the applicant from CQ University inviting him to visit their campus and an email from the applicant dated 11 March 2011 to the Minister for Immigration. When asked about his employment at hearing, the applicant initially stated he operated Auspak International in Quetta and his own offshore education consultants up until December 2010. When it was put to him that there was correspondence that suggested Offshore Education Consultants was still opearting after December 2010, he stated that his office was still open after December 2010 but the Auspak office was closed and that whilst his office was still open, he had told his staff they needed to close down the business as soon as physically possible but as there was still some outstanding business, they could not do it until then. Whilst the Tribunal has considered this, the applicant initially stated Offshore Education was closed in December 2010 when this is clearly not the case. In addition, the documentation after December 2010 including the appointment of agent contract signed on 6 February 2011 and the email of 11 March 2011 in which the applicant states that his ‘is the only registered firm who promotes study in Australia in Quetta’ does not suggest to the Tribunal that Offshore Education Consultants was simply handling outstanding business and winding down but rather, it suggests that the business was continuing to run on a ‘business as usual basis’. Whilst the Tribunal has considered the applicant’s latest statement that he had been in consultation with Austwide Institute of Training for around 5 months and did not tell them he had been threatened before he signed the contract because he thought this could be a chance to save his life as they had said they would invite him to Australia, he did not state this when the date of the appointment of agent contract was put to him at hearing. Put simply, there is no hint in this documentation or in any of the other documentation mentioned that the business is being wound down or that he as CEO was located at another address in Karachi. These documents do not suggest to the Tribunal that the applicant left the office prior to his departure for Australia in April 2011.”
Therefore, the Tribunal did not believe that the applicant had been threatened in December 2010, and was “not satisfied that he [had] been individually targeted in the past” ([12] at CB 498).
With reference to the country information before it from the Department of Trade and Foreign Affairs (“DFAT”) about sectarian violence in Quetta, the Tribunal found, as had the delegate, that there was a “real chance that the applicant could face serious harm on account of his Shia religion and Hazara ethnicity” if he were to return to Quetta ([15] at CB 499).
However, it found that the applicant could reasonably relocate within Pakistan. The Tribunal considered the applicant’s claim that he was from a “high profile Hazara family”, but was sceptical of this claim. It referred to his previous conduct in assuming a false Afghani identity, and was of the impression that the applicant “simply assumes identities and relationships in order to obtain what he wants” ([18] at CB 500). It considered that even if it were wrong in this finding, that the applicant had returned to Pakistan in 2003, and faced no harm in the eight years that he remained there.
In considering the applicant’s ability to relocate within Pakistan, the Tribunal noted “the importance of having regard to the totality of the applicant’s circumstances” ([21] at CB 500), and the need to look at these cumulatively. It found that the applicant would be able to “live and work” in Lahore as he had done previously, and that he would be able to “participate freely in his religious and ethnic community and in their religious and social activities” ([23] at CB 501).
It considered the applicant’s claim, made at the hearing, that he could not relocate to Lahore because his first wife’s family would be “after him”. The Tribunal found that the applicant had not “provided sufficient reasons to assume his first wife’s family [were] still after him” and that he had not previously suggested they were after him following his divorce ([23] at CB 501).
Therefore, the Tribunal found that “on the basis of the evidence before it that it would be reasonable, in the sense of practicable, for the applicant to relocate to Lahore” ([24] at CB 501).
It considered the representative’s claims, made with reference to the documents outlining the applicant’s medical and mental health issues, that the applicant would suffer harm if he returned to Pakistan because he had been seeking “counselling and medical treatment” in Australia. The Tribunal found that the applicant could seek the treatment he needed in Lahore ([27] at CB 502).
It concluded ([29] at CB 502):
“Taking into account the cumulative effect of all these circumstances, for the reasons given above the Tribunal does not accept that there is a real chance that the applicant will be seriously physically abused, killed, or subjected to a level of discrimination which will threaten his capacity to subsist or otherwise be persecuted for reasons of his race (Hazara), his religion (Shia), or because he is a Shia Poet or because he is or was a former sportsman,or because he was or is a businessman or education consultant or because of his relationship to any high profile people in Pakistan or because he has been a Hazara leader himself or because of any other particular social group for the purposes of the Refugees Convention if he returns to Pakistan and settles in Lahore now or in the reasonably foreseeable future. The Tribunal does not accept, therefore, that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan and settles in Lahore now or in the reasonably foreseeable future.”
The Tribunal also separately considered whether the applicant would face “significant harm” on return to Pakistan under the complementary protection criterion at s.36(2)(aa) (and see s.36(2A)) of the Act. With reference to its “findings of fact” made earlier in its decision, the Tribunal did not accept that he would face such harm ([31] at CB 502).
Application Before the Court
The application before the Court, as amended on 3 November 2015, contains the following grounds:
“1. The Tribunal failed to apply the correct test under s36 (2)(aa) of the Migration Act 1955 (‘the Act’) by conflating findings concerning s36 (2)(a) into the consideration of s36 (2)(aa) at [31] of the decision.
2. The Tribunal failed to correctly apply s36 (2)(a) of the Migration Act by applying the wrong test as to whether Australia owed protection obligations to the applicant under the Refugee Convention. In particular, although the Tribunal found there would be a well founded fear of persecution for the applicant returning to Pakistan, it misapplied the law as to the reasonableness of relocation within Pakistan by confining the test of reasonableness of re-location to one of whether there would be a well founded fear of persecution in a particular part of the country.
3. The Tribunal misconstrued the relocation test for the purposes of assessing Australia's protection obligations under the Refugee Convention by failing to address or give consideration to whether the applicant could transit safely to Lahore.
4. The Tribunal misunderstood the real chance test and failed to apply Chan in that it required evidence of the applicant having been ‘targeted’ for harm.
5. The Tribunal failed to take into account material provided to it in accordance with s424 of the Act by rejecting a document corroborative of the applicants claims authored in Australia on the basis of country information about document fraud in relation to documents created in Pakistan.
6. The Tribunal’s rejection of the claims (at [10]) based on the letters from AusPak was irrational and illogical and based on a false premise, namely that ‘independent evidence indicates the CEO of Auspak is ‘Sohail Rizyi’’ in circumstances where no such ‘independent evidence’ is identified and where the name of the CEO of AusPak is in fact ‘Suhail Rizvi’ (as correctly identified in the letter dated 17 March 2014.
7. Further, to the extent that any such ‘independent evidence’ referred to at [10] existed, it was not put to the applicant for comment in breach of s424A of the Migration Act, to the contrary it was put to the applicant (at [57]) that the website of Auspak indicated that the CEO was ‘Suhail Rizvi’.,
8. Tribunal failed to give reasons for its decision in accordance with s430 of the Act in that it provided an document entitled Attachment 1 Claims and Evidence which did not form part of the signed Statement of Reasons for the purpose of s430 and the Signed Statement of Reasons was correspondingly deficient.”
Consideration
Ground one asserts that the Tribunal failed to apply the correct test under s.36(2)(aa) of the Act by “conflating” findings made in the consideration of s.36(2)(a) into the consideration of s.36(2)(aa) of the Act. No particulars are provided.
The applicant’s ground directs attention to the Tribunal’s decision record at [31] (at CB 502 to CB 503):
“Having regard to my findings of fact above, the Tribunal does not accept 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 he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept 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 he will suffer significant harm as defined in subsection 36(2A) of the Act.”
In his submissions, the applicant focussed on the words “having regard to my findings of fact above”.
His argument was as follows. Section 36(2)(a) and s.36(2)(aa) of the Act dealing with the Refugee Convention and complementary protection matters are separate statutory bases for the grant of a protection visa. However, the Tribunal did not provide a separate analysis for each of those criteria.
More particularly, there was no disaggregation of how the Tribunal’s factual findings led to the conclusion that there was no foreseeable risk. That is, at [29] (at CB 502), the Tribunal set out its conclusion, and the “cumulative effect” of its findings of fact in relation to the Refugee Convention criterion. These findings were not disaggregated for the purpose of complementary protection. Therefore, the applicant submitted, the Tribunal imported into the complementary protection test a qualifying factor of reasons relevant to the Refugee Convention test.
It is to be remembered that the Tribunal found that the applicant, as a Shi’a of Hazara ethnicity, would suffer serious harm if he were to return to Pakistan. Therefore, what the Tribunal concluded at [29] (at CB 502) was the “cumulative effect” of its findings of fact in relation to relocation within Pakistan.
I cannot see on the evidence before the Court, that the applicant made separate claims to protection as a refugee to those claims to protection under the complementary protection criterion.
In this light also, it is of note that the applicant, when invited to comment on the question of relocation to Lahore in Pakistan, did not provide separate reasons as against each criterion as to why he could not reasonably relocate (see [9] at CB 460 to [16] at CB 461).
I note and relevantly apply what was said in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [37]:
“…The issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context…”
In this circumstance, I cannot see error in the Tribunal’s reliance on factual findings arising from a common set of factual assertions. Nor in, then concluding that in light of the accumulation of those findings, the applicant could reasonably relocate to Lahore, and that this finding provided disposition of the application for the protection visa as against each of the criteria at s.36(2) of the Act.
Before the Court, the applicant did not otherwise dispute that the Tribunal was entitled to refer to earlier expressed findings of fact when it came to consider the criterion at s.36(2)(a) of the Act (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55] – [56] and SZSQG v Minister for Immigration & Anor [2013] FCCA 612 at [84] – [93]).
In these circumstances, it is a misrepresentation of the task before the Tribunal to assert that it failed to properly and separately address the two criteria at s.36(2) of the Act. The Tribunal’s decision record reveals it understood the two separate tests involved. It made findings of fact arising from the circumstances presented, and it then applied those findings to the two separate criteria, as expressed at [29] and [31] (at CB 502 to CB 503). In all, this aspect of ground one is not made out. The applicant’s submissions also raised matters specifically relevant to the issue of relocation. Although it was not made entirely clear, these appeared to be directed to both ground one and ground two. It is convenient, therefore, to deal with those aspects relating specifically to relocation in ground one with ground two.
Ground two asserts that the Tribunal failed to correctly apply s.36(2)(a) of the Act. The particular to the ground explains that the Tribunal misapplied the law as to the reasonableness of relocation within Pakistan, and that it did so by confining the test of reasonableness of relocation to one of whether there would be a well-founded fear of persecution in a particular part of the country.
The applicant’s submissions before the Court on this ground ranged over a number of matters. It must be said that they had little merit in explaining or advancing the ground, or even in some circumstances apparent relevance to the ground.
The applicant took issue with what he said was the Tribunal’s finding that the applicant had “fabricated” an Afghan identity to remain in Australia. The applicant submitted that the situation was “a little bit more complicated and less pejorative than that”. The reason advanced was, in essence that the applicant had explained to the Tribunal that he had been convinced by a people smuggler to say he was from Afghanistan and that he would not be granted protection if he said he was from Pakistan.
As stated above, in his application for the protection visa in June 2011 the applicant set out in a statement made in May 2011, that he had made a “false declaration” and “false statements” in a “previous application” for a protection visa (see CB 213, as part of the statement at CB 213 to CB 217).
The reference to this matter in the Tribunal’s analysis is relevantly contained at [18] (at CB 499 to CB 500). As set out above, the Tribunal had already found that, even taking that matter into account, there was a real chance the applicant would face serious harm if he were to return to Quetta ([15] at CB 499). The Tribunal then proceeded to consider the question of whether the situation for Shi’a and Hazara people was different in other parts of Pakistan ([16] at CB 499).
In this context, the Tribunal considered the applicant’s objections to relocation within Pakistan. One of those objections was that he came from a high profile Hazara family. The Tribunal had doubts about this. As part of the consideration of this matter the Tribunal considered the specific circumstances of certain persons to whom the applicant said he was related. The Tribunal said it had “difficulty accepting that he is related to these people given that he has previously assumed the identity of an Afghan national in order to gain residence in Australia” ([18] at CB 499 to CB 500).
What is immediately clear is that the words the applicant seeks to impugn (see [40] above), were the words used by the Minister in his written submissions to describe the Tribunal’s relevant finding. The Tribunal did not use such a “strong” word or, as the applicant sought to characterise it before the Court, a “pejorative” word as “fabrication”. It noted that he had “assumed” an Afghan identity in the past in order to secure residence in Australia.
The Tribunal’s finding that he had assumed an Afghan identity was reasonable and entirely open to it in light of the applicant’s written statement to it. The Tribunal’s evaluation of the applicant’s statement and its relevance to its finding about whether he was related to certain “high profile” persons was nothing more than the Tribunal’s evaluation of the evidence before it. Its finding reasonably arose from the applicant’s statement.
It is to be remembered that the complaint in ground one focusses also on s.36(2)(aa) of the Act. Specifically, that in making its finding at [31] (at CB 502 to CB 503) as against this criterion, the Tribunal “conflated” its findings as against s.36(2)(a) into s.36(2)(aa) of the Act. In context, this was its findings in relation to relocation. Ground two of the application directs attention to s.36(2)(a) of the Act, and the Tribunal’s analysis of whether it would be reasonable for the applicant to relocate within Pakistan.
Taking each of these in turn. In relation to ground one before the Court, and as set out above, the applicant did not satisfactorily point to any part of his claims where it can be said he made separate and distinct claims in relation to s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal considered the matter of relocation under the heading of “Could the applicant live elsewhere in Pakistan?” (CB 499). At [29] (at CB 502) and [32] (at CB 503), the Tribunal applied the findings made at [18] (at CB 499) to [28] (at CB 502) concerning relocation to the consideration of the criterion at s.36(2)(a) of the Act. It found he could return to Pakistan and reasonably and practicably settle in Lahore. At [30] (at CB 502) to [31] (at CB 503), the Tribunal found it would be reasonable for the applicant to relocate to Lahore to avoid significant harm and applied this finding to the criterion at s.36(2)(aa) of the Act.
As referred to above, the applicant drew attention to the words “[h]aving regard to my findings of fact above” (at [31] at CB 502 to CB 503), to argue that the Tribunal was referring to its findings concerning the Refugees Convention and, therefore, conflated the two tests at ss.36(2)(a) and (aa) of the Act.
On a fair reading of the Tribunal’s decision record the Tribunal’s reference to “findings of fact above” was clearly said in relation to its analysis and findings in relation to the question of whether the applicant could live elsewhere in Pakistan. As the Minister submits, the Tribunal is entitled to refer and rely on earlier expressed findings when assessing claims against the criterion at s.36(2)(aa) of the Act (see above).
On the question of relocation itself, as it applies to both ss.36(2)(a) and (aa) of the Act, the applicant’s complaint to the Court, as ultimately explained, appeared to have a number of elements.
There is no doubt that the relevant test is one of reasonableness. That is, whether it would be reasonable, in the sense of practicable, for an applicant to relocate within the country of claimed persecution and thereby avoid harm (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (“SZATV”) and Randhawa v Minister for Immigration, Local Government [1994] FCA 1253; (1994) 52 FCR 437 (“Randhawa”)).
Ground two appears to also complain that the Tribunal erred by confining the test of the reasonableness of relocation to one of location within Pakistan. That is, whether there would be a well‑founded fear of persecution in one part of that country.
As a preliminary matter, I should note that in his submissions before the Court, the applicant pointed to the Minister’s submissions and the reference there to “safe haven” in the context of relocation (see the Minister’s submissions at [23]). I agree with the applicant that that concept, as understood in the wider context of international protection, is not relevant to the test the Tribunal was required to apply in the context of relocation and the Refugees Convention.
While it may be that this was a shorthand reference in the Minister’s submissions to the Tribunal’s focus on Lahore as a “safe location” for the applicant, it is again a matter confined to those submissions. I cannot see that the Tribunal misunderstood the relevant test in this regard, or applied the concept of a “safe haven” to its consideration of reasonableness of the applicant’s move elsewhere in Pakistan.
In any event, it is not necessarily the case that the Tribunal must identify a specific location to which an applicant may relocate (see SZOJV & Ors v Minister for Immigration & Anor (No.2) [2012] FMCA 29 at [64] – [70] upheld on appeal in SZOJV & Ors v Minister for Immigration [2012] FCA 459, see also W404/01A OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255). The critical element is that the Tribunal consider the reasonableness of relocation either to a specific location or locations.
In the current case the Tribunal found that the applicant would face serious and significant harm if he were to return to Quetta, from where he had come to Australia. In this context, the Tribunal considered whether he could live “elsewhere in Pakistan” ([18] at CB 499 to [19] at CB 500). The Tribunal then focussed on Lahore, as a specific location, because as it told the applicant at the hearing ([20] at CB 500):
“…the question of relocation has been at the heart of the Tribunal's deliberations. In the Tribunal’s mind, Lahore has been the obvious place to consider given that the applicant has lived and worked there for two years after he came back from Australia to Pakistan in March 2003. As discussed at hearing, it is also the city that several Hazaras have relocated to because of safety and economic opportunities and the Tribunal also notes that in the applicant’s most recent statement dated 31 March 2014, he has even been in touch with two Hazaras who are living in Lahore.”
While the ground appears to assert error in this context there was no satisfactory explanation given as to how or why this revealed jurisdictional error. Rather, the submissions before the Court focussed on some matters that went to the question of the reasonableness of relocation to Lahore. For example, the situation of the applicant’s children and family. Before the Court, the applicant referred to the Tribunal’s account of the hearing and the applicant’s reported statement that “his children could not speak Urdu and only Farsi” ([62] at CB 514 to CB 515). Further, the Tribunal’s finding that “the applicant’s current wife and children can also join him in Lahore” ([27] at CB 502).
In his submissions, the applicant referred to MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 (“MZYPW”), a case involving relocation within Afghanistan and specifically whether the decision maker in that case dealt with the issue of the ability of the relevant children to speak the language used at the place of relocation.
I understood the purpose of the applicant’s reference to MZYPW to be to illustrate that, similarly in the current case, the Tribunal did not address, or more particularly did not give any explanation for the finding, that the children could relocate to Lahore.
It was clear from his submissions to the Court that the applicant based this part of his submissions on the proposition that MZYPW provided specific direction on the application of the concept of reasonableness in all matters of this type. However, as was made clear in MZYPW (and Randhawa and SZATV), what is reasonable in any particular set of circumstances depends on those circumstances. It is to the circumstances of this case as before the Tribunal, from which the consideration of the disposition of the applicant’s ground must derive.
What emerges from the circumstances presented is that the applicant, and his representative before the Tribunal, raised a number of matters going to the question of the reasonableness and the practicality of relocation. The applicant has not put a transcript of the hearing before the Tribunal before the Court. The Tribunal’s account, which is the only relevant evidence on this point, is as follows ([62] at CB 514 to CB 515 and [67] at CB 515):
“[62] The Tribunal indicated it was aware of the Hazara situation in Quetta but was wondering if he could relocate. He stated he could not because of his high family profile. He stated he had lived previously in Lahore and had had a conflict with his former wife and her brother had threatened him. He said he did not know any other Hazaras who lived there and that many of the Taliban were from there and supported by the government of Punjab. The Tribunal stated he had lived in Lahore for two years and had found information that said Hazaras in Lahore were a smaller community but that there was information that several Hazara artists had gone there because of safety and economic opportunities and that they didn’t have a problem and that many people did not know who Hazaras were. The Tribunal also put to him that there was a report that said prominent Hazara had been assassinated in Lahore however when the Tribunal looked for details it could only find one report of a prominent Hazara being assassinated or targeted in Lahore (Dr Ghulam Raza Jafari) and it may be difficult to draw conclusions from that. He stated there were only a few Hazara living in Lahore and he would still be targeted because he was high profile. The Tribunal put to him that nothing had happened to him since 2003 except one telephone call. He stated if he was in Quetta during the recent bomb blast he would have been killed. He stated they came and blew themselves up. He stated in Lahore a prominent person like him would be targeted. He stated his children could not speak Urdu and only spoke Farsi.
…
[67] The adviser said he had not found any information on Hazaras in Lahore. He stated there might be a minute community there and the Tribunal had said that there was information that said prominent Hazaras had been assassinated in Lahore. The Tribunal put to him that when the research unit delved into the issue it only one incident of a prominent Hazara had been found. The adviser questioned how many Hazara’s were in Lahore and said that the Tribunal must advise the witnesses.”
The issue of relocation was raised by the applicant prior to the Tribunal hearing. In his written statement dated 25 May 2011, submitted at the time of the making of the protection application (CB 213 to CB 217), the applicant stated that he had attempted to relocate within Pakistan (to Karachi), to avoid harm in Quetta (see in particular at [10] – [11] at CB 215 to CB 216 and [15] at CB 217). There is no reference there to any language difficulties for his children in the context of his family relocating.
The applicant also submitted a statement to the Tribunal dated 13 November 2013 (CB 346 to CB 348). The issue of relocation was again raised, and specific references were made to his wife and children (see [4] at CB 346 to CB 347 and [6] at CB 347). No reference is made to any language difficulties for the children.
The first mention, therefore, of language difficulties for the applicant’s children in the context of relocation (indeed, in any context) is the applicant’s reported statement at the hearing that his children do not speak Urdu.
Following the hearing, the Tribunal wrote to the applicant by letter dated 20 March 2014 inviting his comments on certain information (CB 449 to CB 454). That information related to Hazaras and Shi’as living in Lahore (CB 451.8 to CB 454).
The representative responded on the applicant’s behalf (CB 462 to CB 471). In relation to the specific matter of relocation to Lahore, two matters were put forward as to why relocation to Lahore was “not a viable option” (CB 464.6). None of these matters made any reference to any linguistic difficulties for the applicant’s children.
The question raised by this part of the applicant’s ground is not necessarily whether the Tribunal misstated the correct test for relocation, but whether the Tribunal failed to properly apply the test in its dealing with the circumstances of the children in its consideration of the reasonableness of relocation.
The Minister’s submissions before the Court were of no assistance on this point. Before the Court, the Minister said he relied on his written submissions. Those submissions are, relevantly, in the following terms ([24] of the Minister’s submissions):
“The Tribunal understood and applied the correct test as is evident by its statement at [24] of the DR where the Tribunal states ‘The Tribunal concludes on the basis of the evidence before it that it would be reasonable, in the sense of practicable, for the applicant to relocate to Lahore to avoid the persecution which he fears in Quetta’. The following findings and considerations of the Tribunal support this conclusion, the Tribunal:
(a) found that after the applicant's willing return to Pakistan in 2003, in the subsequent 8 years, nothing happened to him and concluded that he was not individually targeted;
(b) noted that relocation to Lahore was the obvious place to consider in the applicant's circumstances, given he had lived and worked there for 2 years after he came back from Australia to Pakistan in March 2003;
(c) noted that several Hazaras had relocated to Lahore because of safety and economic opportunities;
(d) found only one report of a prominent Hazara being assassinated or targeted in Lahore and that the reasons for the killing were not straightforward. The Tribunal did not consider that this death meant that there was a sufficient basis to say that prominent Hazaras are being assassinated or persecuted in Lahore;
(e) noted that no further reports of Hazaras being targeted or discriminated against in Lahore had been found notwithstanding the applicant's voluminous submissions;
(f) considered the situation for Shia in Lahore and concluded that, notwithstanding there was a divergence of views, there was insufficient evidence to provide a sufficient basis to conclude that Shia are being targeted in Lahore. The Tribunal also noted that Lahore was a large and diverse city and that there were plenty of opportunities for qualified and educated people to pursue a career;
(g) found that if the applicant were to relocate to Lahore, he would be able to live and work there as he had done in the past;
(h) found that the applicant would be able to participate freely in his religious and ethnic community and in their religious and social activities if he desired to do so.”
Plainly, while the Minister correctly notes the matters which the Tribunal considered in relation to relocation, there is no reference whatsoever to the applicant’s family, let alone the linguistic situation of his children.
In MZYPW, the applicant had claimed that he and his family spoke a particular dialect used in Pakistan, which, if the family were to go to Afghanistan, would identify them (“mark them out”), see MZYPW at [35]) and thereby cause difficulties for them.
It is clear that the Court on appeal in MZYPW found that the decision maker did not address, or engage with, the matter of the difficulties that would be caused by the consequences of having a different dialect in considering the reasonableness of relocation (MZYPW at [25] per Flick and Jagot JJ and [38] per Yates J). At [19] and [25] of MZYPW, Flick and Jagot JJ, relevantly stated:
“[19] …
(ii) a failure to consider the difficulties associated with the manner in which the children spoke Hazaragi, namely with a noticeable dialect which would identify them as having been living in Pakistan…
…
[25] By failing to consider the Appellant’s lack of family support if he were to relocate to Kabul and the difficulties that would arise from his children’s Pakistani Hazaragi dialect, the Independent Merits Reviewer fell into jurisdictional error. The Federal Magistrate committed appellable error by not reaching this conclusion.”
I respectfully understand that in MZYPW the applicant had articulated that a barrier to his family going to Afghanistan (in the sense of reasonableness) was that the dialect spoken by the family would expose them to danger. The decision maker considered the issue of dialect (see MZYPW at [36] per Yates J), but did not “take into account the specific issue of dialect that had been raised by the appellant” (MZYPW at [38] per Yates J).
In the current case, in his submissions before the Court, the applicant referenced only what is set out at [62] of the Tribunal’s decision record as the source of the “language” issue (at CB 514 to CB 515). As set out above, that simply reports the applicant’s statement, albeit in the context of relocation to Lahore, that his children could not speak Urdu, only Farsi.
It is important to note that in the current case there was nothing further from the applicant to the Tribunal to explain why the fact that his children spoke Farsi was a matter that would cause difficulty for him and his family if they were to go to Lahore. On the evidence, the applicant’s children (from his second marriage) were about 7 and 8 years old at the time of the Tribunal hearing. There is no evidence before the Court that the applicant provided any explanation or claim to the Tribunal as to the effect of any language difficulty on the reasonableness of relocation.
By contrast, in MZYPW the applicant had made clear that the objection to relocation that he was putting was that the difference in the dialect spoken would identify them, and “mark” them out, and would thereby be a barrier to relocation.
It is of note that in MZYPW, the Full Federal Court had specific regard to the decision maker’s decision record where the applicant’s claim before the decision maker included (MZYPW at [33] per Yates J):
“…He said that he, his wife and his children would be killed and one of the biggest issues is language…”
In the current case, the importance or significance of the issue of language remained unexplained before the Tribunal. It is not for the Court now to speculate as to the relevance, or significance, or consequence, of the applicant’s reported statement.
In this case the Tribunal presented a coherent and comprehensive analysis of the relocation issue. In the circumstances, given the bare and unexplained reference to the childrens’ language, the Tribunal’s finding that his current wife and children could join him in Lahore, made in the context of the totality of what had been put to the Tribunal on the objections to relocation, was sufficient to deal with those objections.
In these circumstances jurisdictional error does not arise from that aspect of ground two, nor from that part of ground one focussing on relocation specifically (see further below in relation to ground four).
In ground three, the applicant complains that the Tribunal misconstrued the relocation test (in relation to the Refugees Convention) by failing to give consideration as to whether the applicant could safely transit to Lahore.
No satisfactory explanation of this ground was provided to the Court. The issue before the Tribunal was whether the applicant could reasonably and practicably relocate to Lahore. As set out above, the Tribunal dealt with the objections put by the applicant to relocation in the circumstances presented. As the Minister submitted, the Tribunal accepted various difficulties involved in life in Pakistan, but found that the applicant could safely relocate to, and live and work in, Lahore as he had done for two years after returning to Pakistan from Australia in March 2003.
The use of the word “transit” in the ground remained unexplained. The applicant made no claim that he was unable to relocate to Lahore because he could not travel there. This Court has often been presented with matters involving Hazaras from Afghanistan claiming a fear of harm on return. Frequently such claims include transit difficulties that may present to Hazaras who may seek to return to Hazara controlled areas in Afghanistan through Kabul. However, this does not apply to the applicant in the current case. He is a Pakistani national returning to Pakistan. Ground three does not reveal jurisdictional error.
Ground four asserts that the Tribunal misunderstood the real chance test and failed to apply Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) in that it required evidence that the applicant had been “targeted” for harm. Before the Court, the applicant submitted that this also had relevance to ground two. Ground four seeks to assert error in the understanding and application of the real chance test, and ground two also asserts error in the application of the test in the context of the consideration of relocation to Lahore.
The complaint in relation to ground four, and in part ground two, was explained with reference to [22] of the Tribunal’s decision record (CB 500 to CB 501). In particular ([22] at CB 501):
“…The Tribunal has also considered the situation for Shia in Lahore. Whilst there appears to be a divergence of views, with the Immigration and Review Board of Canada (IRB), publishing a Response to Information Request in January 2014 stating that the editorial team of the South Asia Studies Project of MEMRI, states that the situation for Shia Muslims in Lahore and Multan is ‘extremely serious’ (MEMRI 17 Dec. 2013) and that there have been ‘numerous killings’ of Shia in these cities but the representative of the HRCP, while corroborating that there have been targeted killings against Shia in Lahore and Multan, expressed the opinion that the problem is not ‘severe’ for Shia in these cities (HRCP 13 Dec. 2013), the Tribunal does not consider that a statement that numerous killings of Shia which is vague and inconclusive is a sufficient bases to conclude that Shia are being targeted in Lahore.”
Further, the applicant directed attention to [15] of the Tribunal’s decision record (at CB 499):
“The Tribunal has concluded that there is a real chance that the applicant could face serious harm on account of his Shia religion and his Hazara ethnicity if he were to return to Quetta in the reasonably foreseeable future. This is despite the fact that the Tribunal has found that it does not accept the applicant has been specifically targeted in the past.”
I understood the complaint to be that the Tribunal imported into, or understood, the real chance test to require, that there must be some particular targeting of the applicant before the test would be satisfied. Beyond making that assertion, the applicant made no reference to relevant law to explain his grounds.
In Chan Yee Kin (see also Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”)), the High Court found that a fear of being persecuted is well-founded if there is a “real chance” of the person being persecuted (see in particular Chan Yee Kin at 389 per Mason CJ, at 106 – 107 per Toohey J, at 396 – 398 per Dawson J and at 128 – 129 per McHugh J). The concept of a “real chance” “…clearly conveys the notion of a substantial, as distinct from a remote chance of persecution occurring…” (at 389 per Mason CJ).
It can be understood, therefore, that the applicant’s complaint, although not clarified or expressed as such, was that instead of focussing on the real chance of persecution occurring if the applicant were to go to Lahore, the Tribunal required that there be evidence that he be specifically targeted before being able to find that the real chance test was satisfied.
The assessment of whether there is a real chance of persecution, that is the application of the real chance test, requires the Tribunal to make findings of fact arising from the applicant’s claims. This will often require an evaluation of country information, and the evaluation of the applicant’s claims in light of findings about relevant country information, concerning the situation in the relevant country.
Past events can be a guide to the determination of what would likely occur in the future (see Guo at 574). As was made clear in Guo, this involves an assessment of these events. However, the real chance test is focussed on the reasonably foreseeable future if the applicant were to return to his home country or a part of that country. The claims to fear harm must be assessed with that focus (see SZTOO v Minister for Immigration & Anor [2015] FCCA 1631 at [27]).
I do not agree with the applicant that, on a fair reading, the Tribunal, at [22] (at CB 500 to CB 501), made any finding or expressed any expectation that the applicant was required to provide evidence of “targeting”.
In written submissions prior to the Tribunal hearing, the applicant through his representative made the following claims and submissions:
1)Based on available country information it was not reasonable for the applicant to relocate to another part of Pakistan because as an Hazara Shi’a he would be ([8] at CB 303):
“…targeted and denied effective protection from the agents’s of persecution throughout Pakistan and that there is no place in Pakistan for Hazara Shia’s to relocate to…”
2)In the same submissions (at [34] at CB 315):
“Target Killing of Hazara Professionals/Prominent Hazara’s/Hazara Traders-businessmen
[34] Country information supports my clients claims that Hazara professionals, prominent Hazara’s and Hazara traders-businessmen are targeted by Sunni extremists.”
3)At [55] (at CB 324):
“Further, due to my client’s membership of one of the most prominent and well known Hazara families in Pakistan, he would be at great risk of being specifically targeted and tracked down in all parts of Pakistan.”
4)At [60] (at CB 325):
“Country information shows that Shia’s are denied effective protection throughout Pakistan due to thier Shia religion, meaning that the quality of internal protection fails to meet the basic norms of civil; political and socio-economic rights and shows that internal safety of Shia’s is illusory. Country information shows that Hazara Shia’s are being targeted and denied effective protection from the agents’s of persecution throughout Pakistan and that there is no place in Pakistan for Hazara Shia’s to relocate to. Country information shows that Hazara Shia pilgrims trying to leave Quetta are being specivfically targted by Sunni extremists meaning that is there was another part of Pakistan where protection was available, it would not be safe or practical for my client to try and access that part of the country.”
[Errors in the original.]
At the hearing with the applicant, the Tribunal raised the question of relocation, and then, specifically, relocation to Lahore ([62] at CB 514). It is tolerably clear that the Tribunal sought to explore the applicant’s claims concerning the targeting of Hazaras. In this context, the Tribunal referred to country information concerning this matter, and the applicant’s own circumstances. In response to the applicant’s claims, the Tribunal stated that it could “only find one report of a prominent Hazara being assassinated or targeted in Lahore” ([62] at CB 514).
Following the hearing the Tribunal wrote to the applicant and, amongst other things, brought to his attention country information concerning Hazaras and Shias in Lahore in the context of relocation (see CB 451 to CB 453). Given the applicant’s initial submissions to it, and what occurred at the hearing, the Tribunal’s reference was plainly put in the context of addressing an aspect of the applicant’s claims concerning the reasonableness of relocation.
The applicant, through his representative, responded on 3 April 2014 ([10] at CB 465):
“Due to my client’s membership of one of the most prominent and well known Hazara families in Pakistan, he would be at great risk of being specifically targeted and tracked down in Lahore.”
When properly and fairly read, and in context, the Tribunal cannot be said to have imposed any expectation that the applicant must show he would be targeted. Rather, the Tribunal addressed an aspect of his claim as put by the applicant. Grounds two and four are without merit in this regard.
As to [15] (at CB 499), the applicant had claimed to have been specifically targeted in the past because he was, amongst other things, ([7] at CB 496):
“…a high profile Hazara family, he has worked as an education agent, he is a Shia poet/religious reciter, and he is or was a famous swimmer. He has also stated that he is a business man, a Hazara leader and has protested in front of the Pakistan Embassy and that the Pakistan authorities and terrorists will know because of the international media.”
At [15] (at CB 499), the Tribunal expressed its concluding finding in relation to this claim. To the extent that ground two relied on this matter, it too is without merit. In all, grounds two and four are not made out.
Ground five asserts that the Tribunal failed to take into account information provided to it in accordance with s.424 of the Act. The ground explains that the Tribunal’s failure is said to have occurred when it rejected a document corroborative of the applicant’s claims on the basis of country information about document fraud Pakistan.
Before the Court, the document was identified by the applicant as a letter given in support of his claim to have worked as an education agent for “Auspak International” in Quetta. The applicant’s claim was that in December 2010 he was threatened for sending students to non-Muslim countries. Before the Court, the applicant directed attention to a copy of a letter from Auspak (at CB 472). The applicant also tendered a document headed “Auspak International” downloaded from the internet. As stated above, this was provisionally admitted into evidence (“AE1” ‑ pending the establishment of relevance).
The applicant directed attention to [10] of the Tribunal’s decision record (at CB 497, see [14] above). The applicant’s argument before the Court turned on two matters. First, the correct spelling of the letter writer’s name. Second, that the country information relied on by the Tribunal related to document fraud by Pakistanis in Pakistan, not by persons in Australia.
As set out above, at [10] of its decision record, the Tribunal referred to the name of the signatory to the letter as “Shuail Razvi”, and to independent evidence that the CEO of Auspak is “Sohail Rizvi”. The letter contained in the evidence before the Court (at CB 472) has the signatory of the letter as “Suhail Rizvi” (see [14] above).
In the Tribunal’s account of the hearing, the Tribunal reports the following:
1)At [63] (at CB 515):
“The Tribunal then spoke to the adviser. The Tribunal put to him that it needed to work out whether it thought the applicant was telling the truth. The Tribunal indicated it had to work out whether he was from a high-profile family or whether he had made it up. The Tribunal put to him it was wondering why he could not tell the Tribunal when his uncle stopped being the Minister for Education and had not been able to initially state what happened to his uncle in 2006. The Tribunal also put to him that New Zealand authorities had stated he declared he was a relative of someone who subsequently said he was not their relative. The Tribunal put to him that he had assumed the identity of an Afghan and come to Australia, obtained a protection visa and had stayed in Australia for a number of years under that name. The Tribunal indicated that it had information that suggested that the CEO of Auspak spelt his name differently which may lead the Tribunal to conclude that there was fraud in the application.”
[Emphasis added.]
2)At [57] (at CB 514):
“The Tribunal asked who was the CEO of Auspak. He stated Shual Razvi. The Tribunal put to him that it had looked at the website for Auspak that indicated that the CEO of Auspak was Mr Suhail Rizvi. He stated he did not know and maybe it was a spelling error.”
[Emphasis added.]
[This latter spelling is consistent with the document tendered by the applicant to the Court.]
In short, the applicant’s complaint was that the Tribunal did not take into account corroborative evidence because it rejected the letter from Auspak International because it found the letter contained a misspelling of the author’s name, and because of information concerning the prevalence of document fraud in Pakistan.
The applicant’s position in relation to the first matter was that the letter (at CB 472) contained the “correct” spelling of the name of the CEO of Auspak International and the Tribunal was in error in finding otherwise. Further, the “independent evidence” to which the Tribunal referred (at [10] at CB 497) was wrong in referrng to the CEO as “Sohail Rizvi” (emphasis added) when the applicant’s evidence, put provisionally before the Court, shows that the correct spelling is “Suhail Rizvi” (emphasis added).
Grounds six and seven arise also from the same complaint as in ground five. The errors asserted are first, in ground five, that the information in the letter (at CB 472) was given pursuant to s.424 of the Act and should have been properly considered. Second, in ground six, the asserted error is that the Tribunal’s finding based on the letter in rejecting the applicant’s claims was irrational and illogical. Third, ground seven asserts a breach of s.424A of the Act because the “independent evidence” relied on by the Tribunal was not put to the applicant for comment.
It is to be noted that at [10] (at CB 497) the Tribunal referred to two letters from Auspak International submitted by the applicant. The first of these letters is reproduced at CB 74. This letter is signed by “Syed Shuail Razvi”, said to be CEO of “Auspak International Pakistan”. The letterhead contains an address in Lahore, Pakistan.
That letter was provided by the applicant at the time of the making of the application for the protection visa, and in support of his claim to have worked for Auspak International in Quetta. It is dated 12 May 2011.
In its letter of 20 March 2014, the Tribunal wrote to the applicant seeking his comments on, or response to, various pieces of information. This included (CB 451):
“Promotional material from Auspak International indicates that the CEO of Auspak International is Mr Syed Sohail Rizvi and not Mr Syed Shuail Razvi as cited in the letter dated 12 May 2011 stating that you were the director for Auspak International Quetta branch since 2005.”
The applicant responded to this through his representative. Relevantly, by letter dated 3 April 2014 (CB 458 to CB 486, including annexures). In the applicant’s statement, annexed to the response, the applicant states as follows ([8] at CB 460):
“In relation to the letter from Syed Sohail Rizvi, I have provided another letter from him explaining that he made a typing error. He has provided another letter which I have attached to this statement from Syed Sohail Rizvi. You will note on his letter attached, the address he uses is slightly different to that listed in the website. The reason for this is that his office is on the corner of Elizabeth and Flinders St. He has provided his mobile phone and office contact number and has urged that should the Tribunal have any doubts about me being Director of Auspak International Quetta since 2005 that the Tribunal contact him and he will confirm this.”
The letter provided, advises that (at CB 472):
“Previous letter had typographical error in my name which has been rectified.”
That “rectification” took place with the name “Suhail Rizvi” appearing in the signature block to that letter.
Before the Court, the applicant submitted that the amended grounds, that is grounds five, six and seven, of the application sought to “crystallise” the “SZRHL point”. The reference was to SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093.
In that case, the Court, per Logan J, was presented with circumstances where the Tribunal had come to an adverse conclusion on the credibility of the applicant before it, however, this was based on a central factual error. The Court stated (SZRHL at [34] – [36]):
“[34] As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37], ‘the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise’. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a ‘false case’ laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
[35] One way of characterising the Tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the Tribunal’s decision and, in this Court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not ‘within the range of possible acceptable outcomes’ (Li at [105]).
[36] Another way of characterising the jurisdictional error, as the discussion in SZLGP reveals, is that it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a ‘false case’ in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn formed part of the reasoning that led to a conclusion that the first appellant was not credible.”
Ultimately, the Court explained (SZRHL at [37]):
“Recalling the Full Court’s observation in VAAD at [39], that ‘[a]n assessment of credibility is not necessarily linear’, it is not, in my view, open to conclude that the appellants have not, as a result of the error made by the Tribunal, been deprived of the possibility of a successful outcome on the merits of their protection visa applications. It is the existence of such a possibility which is both necessary and sufficient to warrant the granting of relief on judicial review: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.”
There are two answers to the applicant’s arguments. First, on the facts presented there was no relevant errant fact finding made by the Tribunal. Whatever may have been said at the hearing, and whatever the reference to independent information at the hearing in relation to the “correct” name of the CEO of Auspak International (see [57] at CB 514 and [63] at CB 515), the relevant findings of the Tribunal are at [10] (at CB 497).
Those findings were that (in context) the first letter was signed by “Shuail Razvi”. On the evidence it was (CB 74). The Tribunal’s reference to the second letter (irrespective of the spelling of the name of the CEO on it) was not to note the difference in that spelling to the spelling which the Tribunal considered to be the “correct” spelling.
Rather, on a fair reading, the reference to the second letter was made for the purpose of noting and identifying that there was a second letter. The reference to the second letter was to further note the contents of that letter in confirming that the name had been incorrectly spelt in the first letter. That is made clear with the reference to the words “as the applicant and a subsequent letter allegedly from Suhail Rizvi have claimed”.
That is, the Tribunal’s relevant finding, which was reasonably open to it on what was before it, and which it had discussed with the applicant at the hearing, was an expression of doubt that the name of the “CEO would be incorrectly named on correspondence”. That is, in the first letter. Whatever the “correct spelling” of the name of the CEO was, it was not “Shuail Razvi” as appeared on the first letter.
Second, and in any event, as the Minister submits, and bearing in mind what was stated, and found, in SZRHL, in the current case it cannot be said that the matter of the spelling of the CEO’s name was determinative of the relevant conclusion as to the applicant’s credibility.
One aspect of the applicant’s claim to fear harm was that he had been employed by Auspak International in Quetta. During this employment he sent Muslim students to non-Muslim countries. He had been threatened as a result of this.
It is important to note that the Tribunal’s analysis at [10] (at CB 497), on which the applicant focussed in his submissions before the Court, made reference to “doubts” that the applicant had worked for Auspak International. That is, the references to the spelling of the name of the CEO of Auspak International gave rise to “doubts” by the Tribunal.
As was made clear by the Tribunal at [12] (at CB 498), despite those doubts, it did consider the applicant’s claim to have worked for Auspak International in Quetta and gave him the benefit of the doubt in this regard. The relevant finding by the Tribunal was that he had not received threatening phone calls, or had to close down the business. The Tribunal gave reasons for this and made findings reasonably open to it ([11] at CB 497 and [12] at CB 498).
The key finding in this analysis was expressed by the Tribunal at [12] (at CB 498) “[t]his means that the Tribunal is not satisfied that he has been individually targeted in the past”. I note also the analysis of other parts of the applicant’s claim to have been targeted in the past ([26] at CB 502 and the reference to “businessmen and education consultant”). None of the findings rely on the correct or incorrect spelling of the name of the CEO of Auspak International.
The applicant also complains that the information relating to document fraud, to which the Tribunal referred, relates only to Pakistan, and not Australia. The applicant sought to rely on the document he tendered to the Court to argue that Auspak International had an office in Melbourne, Australia.
That may be the case, when read fairly, the Tribunal’s reference to “document fraud” (at [10] at CB 497), clearly related to the first letter from Auspak International, however, the same cannot be said about the second letter. In any event, as is clear on the face of both letters, both made reference on their letterhead to the “Head Office” of Auspak International in Lahore, Pakistan. The first letter, while identifying in its letter head the company name as “Auspak International”, had as part of the signature block “Auspak International Pakistan”. This is sufficient for the Tribunal to reasonably have treated both letters as coming within the information from DFAT concerning document fraud in Pakistan.
In all, grounds five, six and seven are not made out. The Tribunal did not fail to take into account the applicant’s second letter in the manner understood by relevant authorities (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1).
Nor was the Tribunal’s decision in relation to the applicant’s claim that he had been specifically targeted illogical or irrational or unreasonable, with reference to ground six (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration v Singh [2014] FCAFC 1; (2014) 308 ALR 280, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1). The only evidence before the Court of what occurred at the hearing is what the Tribunal has reported in its decision record. These references reveal that the applicant was put on notice both as to the Tribunal’s concern as to his claim to have been specifically targeted and the matter of the two letters. Given that the Tribunal found, by giving the applicant the benefit of the doubt, that he had worked for Auspak International in Quetta in Pakistan, it cannot be said that the information concerning the CEO of the company obtained from DFAT was information that the Tribunal considered would be a part of the reason for affirming the delegate’s decision such as to enliven s.424A(1) of the Act, with reference to ground seven.
Ground eight asserts that the Tribunal failed to give reasons in accordance with s.430 of the Act. This is explained by stating that the Tribunal provided a document headed “Attachment 1 Claims and Evidence”, which did not form part of the statement of reasons for the purposes of s.430 of the Act.
Section 430 of the Act was, at the relevant time, in the following terms:
“(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
(2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.
(3) Where the Tribunal has prepared the written statement, the Tribunal must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.”
The argument, therefore, was that s.430 of the Act requires the Tribunal on making its decision to make a written statement that sets out the matters referred to at s.430(1)(a) to (d) of the Act. Therefore, as the attachment was not part of the written statement of decision, the Tribunal had not complied with s.430 of the Act.
At best, the applicant’s explanation before the Court, in support of the proposition that the attachment was not a part of the written statement was that it was “copied and pasted”, was “slipshod”, and had been “thrown together”. Further, it was submitted that the findings and conclusions on the claims advanced by the applicant were “detached” from the ultimate conclusions by the Tribunal.
Before the Court, the applicant’s counsel also made clear that the ground was “more like the cry of the pedant wailing against a decline in standards”, and that the point of the ground was a “novel” one.
Whatever the anguish felt by the applicant and his counsel in this regard, it does not reveal jurisdictional error. I agree with the Minister that the Tribunal plainly complied with each of the matters set out at s.430(1) of the Act. There is no requirement, and nor did the applicant point to any, that the statement must be presented or set out in any particular format.
Nor does the applicant’s subjective view of the presentation of the written statement form the basis to argue jurisdictional error. Further, the “disconnect”, which the applicant asserts, is simply not apparent on any fair reading of the entirety of the document prepared by the Tribunal in explanation of its decision.
In any event, the Minister relied on what was said by Justice Rares in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [85]:
“This does not permit s 430(1) to be construed as a requirement that goes to jurisdiction in the sense that the decision will be invalid because a written statement has not been prepared. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 424 [70] McHugh J explained that (unlike the wording of s 25D of the Acts Interpretation Act) the opening words of s 430(1) presuppose that the decision has been made and the subsection then imposes requirements to be fulfilled by the tribunal subsequently. So much must be the case where the tribunal makes a decision orally.”
This remained unchallenged by the applicant before the Court. Ground eight does not reveal jurisdictional error.
Conclusion
None of the grounds as pleaded and as explained before the Court reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 7 March 2016
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