SZVSK v Minister for Immigration
[2017] FCCA 1169
•2 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVSK v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1169 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal erroneously determined applicant retracted fundamental element of the applicant’s claims – whether the Tribunal made jurisdictional error by so finding – jurisdictional error found. |
| Legislation: Tribunals Amalgamation Act 2015 (Cth), Schedule 9, Item 15AG |
| Cases cited: Bondelmonte v Bondelmonte [2017] FCA 8 |
| Applicant: | SZVSK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3274 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 May 2016 |
| Date of Last Submission: | 12 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr Glavac |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The decision of the Refugee Review Tribunal made on 28 October 2014 affirming the decision of the delegate of the first respondent made on 25 March 2014 not to grant the applicant a Protection (Class XA) visa (Protection visa) is quashed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 25 March 2014 not to grant the applicant a Protection visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3274 of 2014
| SZVSK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of the Islamic Republic of Pakistan, seeks judicial review of a decision of the second respondent (Tribunal) that affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant claims the Tribunal incorrectly found the applicant withdrew one of his claims for a Protection visa and, therefore, did not consider the claim the applicant in fact had made.
Claims for Protection
The applicant stated the facts on which he relied in a statutory declaration that formed part of his application for a Protection visa. According to that statutory declaration:[1]
[1] CB75-79
a)The applicant was born in L village in the Swat Valley.
b)The applicant’s father was a member, and ultimately the secretary, of the L Peace Council. The applicant’s father was also a member of the Awami National Party (ANP).[2]
[2] CB75, [8]
c)From 1994 to 1997 the L Peace Council, together with other peace councils and police in the Swat Valley, campaigned effectively against the Taliban’s attempt to introduce an extreme form of Sharia law into the area.[3]
[3] CB75-76, [9]-[16]
d)In 2001 the L Peace Council opposed the Taliban’s fresh recruitment campaign in the Swat Valley.[4] As a result, the L Peace Council gained a reputation in the Swat Valley for defying the Taliban. The L Peace Council was condemned in mosques in Migora, and each of the members of the L Peace Council received anonymous threatening letters.[5]
[4] CB76, [17]-[20]
[5] CBCB79, [21]
e)In November 2007, when travelling by bus from Islamabad to L village (the applicant was then attending university in Islamabad), the applicant and eight other persons were taken by the Taliban and held hostage until they were released five days later.[6]
[6] CB76-77, [27]-[32]
f)One day after the Taliban released the applicant, the L Peace Council resolved it should find out more about “the status of the Taliban insurgence in the area”. The applicant, together with his cousin, scouted the Shangla area “to see if the Taliban had moved in”.[7]
[7] CB77, [33], [36]
g)The Taliban leader came to L village to hold a meeting with the L Peace Council to gain support for the Taliban. The L Peace Council refused to give support and told the Taliban not to invade L village.[8]
[8] CB77, [37]
h)In January 2009 the applicant’s father “died as a result of being tortured by the Taliban”.[9] Among the applicant’s father’s papers a letter addressed to him from the Taliban was found stating the L Peace Council was anti-Islamic, and the Taliban would kill him unless he renounced the L Peace Council and joined the Taliban.[10]
[9] CB77, [40]
[10] CB77, [41]
i)In October 2009, when the applicant was at a pharmacy in A town, the Taliban detonated a car bomb that killed his uncle.[11] After the applicant returned to Islamabad, the applicant was informed by telephone that two prominent members of the L Peace Council had been assassinated.[12]
[11] CB77, [44]
[12] CB77, [45]
j)In 2010 the military operations in the Swat Valley ceased but the Taliban, who were reported to have retreated to hideouts in the nearby mountains, employed a new tactic of target killing members of peace councils and the ANP, and government employees. The Taliban also terrorised the people of the Swat Valley by carrying out suicide bombings, and by capturing and beheading publicly “any person whom they suspected of spying or informing against them”.[13]
k)The applicant returned to L village where he secured the position of a science teacher at a local school. The Taliban continued to terrorise local people, and it had also begun “a similar campaign of suicide bombings and target killings in Islamabad”.[14]
l)The applicant wished to return to Islamabad to continue with his studies but, because of the “Taliban’s continuing terror campaign”, the applicant did not consider it safe to return there.[15] “Consequently” the applicant came to Australia on 7 December 2011 holding a student visa,[16]
m)In August 2012 the applicant returned to L village to visit his family. The applicant’s brother showed him a letter that was delivered to the applicant’s family home two or three months after the applicant had left for Australia. The letter, which was addressed to the applicant and his brother, was from the Taliban stating that “the punishment for spies is the death penalty, [and] that we would receive our punishment soon, because we cannot escape from the Taliban”.[17]
n)It had become known in L village that the applicant had been to Australia and was working part-time as a security officer. This had given rise to rumours the applicant was affiliated with the police in Australia and was involved in spying.[18]
o)The villagers accused the applicant of having renounced Islam and the applicant received a letter from the commander of the Taliban stating the Taliban intended to make an example of the applicant because he renounced Islam.[19]
p)In October 2012, when returning with four of his friends from his family’s farm to L village, “three men who appeared to be Taliban” began to follow the applicant and his friends. The applicant and his friends “ran and evaded them”. The applicant reported the matter to the police checkpoint in the village, but the applicant was ignored.[20]
q)The applicant concluded he was in “significant danger”, and he left for Islamabad two days later. When in Islamabad, the applicant stayed with two of his friends, and he departed for Australia on 9 October 2012.[21]
r)Four days after he arrived in Australia, one of his friends informed the applicant that three or four men whom the applicant’s friend did not know had come to his friend’s apartment looking for the applicant, and they wanted to know where the applicant was, and when he would be returning.[22]
s)Even though the applicant’s brother is not involved in the L Peace Council, the Taliban has also threatened him “because of his work with trying to make things better in Pakistan”. The applicant’s brother received telephone calls threatening to kill him.[23]
[13] CB78, [47]
[14] CB78, [49]
[15] CB78, [50]
[16] CB78, [51]
[17] CB78, [52]
[18] CB78, [53]
[19] CB78, [55]
[20] CB78, [56]
[21] CB78, [57]
[22] CB78, [57]
[23] CB79, [61]
The applicant concluded his statutory declaration as follows:[24]
I believe that, if I were to return to Swat, Islamabad, or any other place in Pakistan, my life would be in danger because the Taliban is intent on capturing and executing me, as stated in the letter I received from them during my last visit to Pakistan. I believe that the Taliban has a widespread network of informers throughout Pakistan, and would discover my whereabouts if I were to return . . . .
[24] CB79, [62]
In a submission made to the Tribunal, the applicant’s representative stated four reasons the applicant feared the Taliban would harm him if he were to return to Pakistan: (i) the applicant’s father’s involvement with the ANP and the L Peace Council; (ii) the applicant’s own work on behalf of the L Peace Council; (iii) the applicant’s work as a science teacher in Pakistan; and (iv) the applicant’s connection with Australia, including his work as a security guard.[25]
[25] CB179-180, [5]
Tribunal’s reasons
The Tribunal did not accept critical aspects of the applicant’s claims to be truthful.[26] The Tribunal found the applicant often failed to answer direct questions, and provided long and confusing answers to straightforward questions.[27] The Tribunal, therefore, rejected all of the applicant’s claims. Relevant to the ground on which the applicant challenges the Tribunal’s decision is the Tribunal’s reasons for rejecting the applicant’s claims of fear based on the applicant’s father’s involvement with the ANP and the L Peace Council.
[26] CB206, [58]
[27] CB206, [60]
The Tribunal found the applicant had retracted “the basis of his fear at the hands of the Taliban because of his father’s involvement in the peace council and ANP”,[28] and that “the replacement theory he has put forward as to why he would be of interest to the Taliban” to be unconvincing.[29] The Tribunal found the applicant had retracted the basis of this claimed fear by confirming, on more than one occasion, that he did not fear harm because of his father’s activities; and the applicant so confirmed in response to the Tribunal’s questions “as to why his other family members appeared to have been able to reside undisturbed in the village”.[30] The replacement theory the Tribunal found the applicant advanced for fearing harm at the hands of the Taliban was that the applicant “would culturally inherit the animosity the Taliban had for his father and inherit his father’s political allegiances”.[31]
[28] CB206, [62]
[29] CB206, [61]
[30] CB206, [62]
[31] CB207, [66]
The Tribunal did not accept that: (i) the applicant was targeted for harm by the Taliban because of his father’s activities with the ANP and the L Peace Council; [32](ii) the applicant “holds a genuine fear in this regard”;[33] or (iii) the Taliban would target the applicant as a consequence of any animosity the Taliban may have had for his father.[34] The Tribunal did not accept the applicant genuinely feels obliged to inherit his father’s political allegiances. The applicant’s evidence to the Tribunal to this effect contradicted the evidence the applicant gave to the delegate that he has no interest in politics.[35]
[32] CB207, [65]
[33] CB207, [65]
[34] CB207, [67]
[35] CB207, [67]
The Tribunal also found that the “alternative rationale as to why” the applicant fears harm from the Taliban did not resolve the Tribunal’s concerns why the applicant would have chosen to leave the relative security of Islamabad to return to live in the Swat Valley.[36] The Tribunal found the alternative rationale implausible because the applicant’s father’s activities took place long before the applicant’s departure for Australia, yet the applicant resided in the Swat Valley “for a significant period in between”.[37]
[36] CB207, [68]
[37] CB207, [69]
The Tribunal did not accept the applicant received the threatening letters he claimed were sent to his family home after he departed for Australia. The Tribunal did not accept the letters are genuine. The Tribunal found it was not plausible that the Taliban would follow or specifically threaten the applicant on his return to Pakistan “having never done so previously”.[38] Nor did the Tribunal find it plausible that the applicant’s brother would have received the letters yet not tell the applicant about them before the applicant returned to L village.[39]
[38] CB207, [70
[39] CB208, [70]
Ground of application and parties’ submissions
The applicant relies only on the second of the two grounds of application, which is as follows:
The Tribunal failed to exercise its power by making findings which were contrary to the evidence part of the applicant’s claim and the Tribunal has failed to consider an integer of the applicant’s claim, based upon a misapprehension of the evidence from the applicant before the Tribunal.
Particulars
(a)In finding the applicant no longer feared harm on account of the applicant’s father’s activities (para 63 and 64 of the decision) the Member misunderstood the applicant’s evidence to the contrary effect and failed to make accurate findings in what the Member conceded was an important part of the applicant’s claim.
The applicant submits that at no time did the applicant retract the basis of his fears or confirm that he did not fear harm on account of his father’s activities.[40] The applicant further submits that, by incorrectly concluding the applicant had retracted this part of his claims, the Tribunal failed to address the totality of the applicant’s claims, and failed to address the applicant’s case as it was actually put to the Tribunal.[41]
[40] Outline of submissions for the Applicant, [8]
[41] Outline of submissions for the Applicant, [14], [15]
The Minister, on the other hand, submits as follows:
a)At the hearing the applicant advanced two bases for fearing harm from the Taliban. The first is the activities in which the applicant’s father participated when a member of the L Peace Council and the ANP (Father’s Activities). The second was the applicant inherited his father’s activities and responsibilities and, in the eyes of the Taliban, now represents the ANP and L Peace Council on behalf of his family.[42]
b)The applicant “did effectively retract the basis of his fears by his comments to the Tribunal”.[43] The Minister relied on the applicant’s having stated on a number of occasions during the hearing that neither he nor his family were targeted by the Taliban while in Pakistan.[44]
c)The Tribunal “was alert to, understood and considered each integer of the applicant’s claims”, including the “the novel claim raised at the hearing that he would be taken to have “inherited” his father’s activities”.[45]
[42] First Respondent’s Outline of Submissions, [18]
[43] First Respondent’s Outline of Submissions, [20]
[44] First Respondent’s Outline of Submissions, [20], [21]
[45] First Respondent’s Outline of Submissions, [22]
The principal question that arises, therefore, is whether it was reasonably open to the Tribunal to conclude the applicant had retracted his reliance on the Father’s Activities as a basis for claiming fear of harm from the Taliban. To be in a position to determine that question, it will be necessary to set out in some detail the written claims the applicant made based on the Father’s Activities, and the evidence the applicant gave at the hearing before the Tribunal
The applicant’s written claim based on Father’s Activities
The first occasion on which the applicant made a claim based on the Father’s Activities is in the statutory declaration that accompanied his application for a Protection visa. In short, the statutory declaration asserted: (i) the applicant’s father was a member of the L Peace Council and the ANP; (ii) the L Peace Council took active steps to prevent the Taliban from establishing a presence in the Shangla District; and (iii) the applicant’s father died as a result of torture inflicted on him by the Taliban.
The next occasion on which the applicant articulated a claim based on the Father’s Activities is the applicant’s representative submission to the delegate dated 11 March 2014.[46] The submission claimed the applicant has been targeted since at least 2007 “on account of his opposition to [Taliban] values, evidenced by the work undertaken on behalf of the” L Peace Council.[47] The submission further stated the applicant was kidnapped in 2007 by the Taliban, the applicant’s father was killed by the Taliban in 2009, the applicant’s uncle was killed in a bomb blast, and two members of the L Peace Council had been shot and killed. The submission then described the applicant’s fear as follows:[48]
He fears that if he returns to Pakistan, he will suffer serious harm including abduction, physical assault or death at the hands of the TTP and other militant insurgents on account of his imputed political opinion, namely for the circumstances of his father’s involvement with the Awami National Party (ANP) and the [L] Peace Council; and [the applicant’s] own work undertaken on behalf of the [L] [P]eace [C]ouncil”.
[46] CB107-117
[47] CB107
[48] CB108
The third occasion on which the applicant made a claim based on the Father’s Activities is in the submission the applicant’s representative prepared and submitted to the Tribunal. That submission claimed the applicant fears harm from the Taliban because of four matters, the first of which is “his father’s involvement with the [ANP] and the” L Peace Council, and the second of which is the applicant’s “own work undertake[n] on behalf of the” L Peace Council.[49]
[49] CB179-180
The applicant’s evidence at the hearing
The first occasion before the Tribunal on which the applicant had an opportunity to discuss his claim based on the Father’s Activities arose when the Tribunal directed the applicant’s attention to the delegate’s observation that it was unusual that, after the applicant’s father’s death, the applicant’s family remained in the village and did not suffer any further harm from the Taliban.[50] The applicant answered that, after his father’s death, “my family wasn’t involved in the things, like, my mother wasn’t in the peace council”.[51]
[50] T.14.15. The transcript of the hearing before the Tribunal is annexed to the affidavit of W David made on 20 May 2015.
[51] T14.30
The Tribunal then put to the applicant: “You weren’t involved in the peace council either, on your claims”.[52] The applicant asked what did the Tribunal “mean by the question”, and further asked: “So do you have any point in the mind, so that’s why you are asking these questions?”[53] The Tribunal said it did have a point in mind. After repeating the concern the delegate had, the Tribunal continued:[54]
Now, you’ve responded to that by saying, well, your mother wasn’t involved in the peace council, nor was your brother, and I’ve just observed that when your father died nor were you. So why do you say that you’re being targeted by the Taliban?
[52] T14.35
[53] T14.45
[54] T15.10
The applicant responded that the Taliban did not target him, he “wasn’t, you know, in their visions”. In response to the applicant’s question whether that came only later, the applicant said “I have been targeted, you know, like, I’ve been spotted very, very recently”.[55]
[55] T15.15
The Tribunal said it might have misunderstood the applicant’s claim. The Tribunal said it thought the applicant’s claim was that he was being targeted by the Taliban in part because of the Father’s Activities. The Tribunal asked: “Is that not correct? Is that why you fear that the Taliban are targeting you?”[56] The applicant responded:[57]
Yeah, I have to explain this one. Because of my association with the, with the, you know, because of my .. (not transcribable).. father’s membership ..(not transcribable).. peace council, I’m raising this point.
[56] T15.20
[57] T15.22
The Tribunal must have considered this not to be an answer to its question because the Tribunal said it was asking the applicant questions about his own fears and his own background, and it was not necessary for the applicant to refer back to his statement. The Tribunal said it was “just trying to clarify the connection between [the applicant’s] father’s activities and [the applicant’s] fear of being harmed by the Taliban”. The Tribunal then asked: “So do you fear that you were being targeted by the Taliban because of your father’s activities back in the early 2000s?” The applicant responded by asking “Like, in now and in the past ..(not transcribable).. before coming to Australia or when I”.[58] The Tribunal interrupted the applicant, and the following exchange occurred (emphasis added):[59]
[58] T15.30
[59] T15.40
Q. I’m talking about the future. You say that if you go back to Pakistan, you fear being harmed by the Taliban. I have to decide if your fear is well-founded. Part of the reason that you’ve put forward for explaining why the Taliban might target you is because of your father’s activities. Something about your claims that is not consistent with that is that when your father was assassinated by the Taliban, the rest of your family stayed exactly where they were and didn’t leave. That’s the concern of the delegate and that’s a concern I’m also raising.
A. WITNESS: Okay. So I need to take time on this one.
Q. Please do.
A. WITNESS: What was the question, sorry?
The Tribunal then addressed the applicant’s representative and asked whether it would assist to have a break because the Tribunal member was “struggling to make progress”. There was then a short adjournment.
When the hearing resumed, the Tribunal asked the applicant whether he had anything he would like to say about the concern the Tribunal had just raised, namely, that the applicant’s family “continued to remain in the village after” the applicant’s father’s death “and that that may not be consistent with your family or you being targeted for harm by the Taliban as a result of [the applicant’s] father’s activities”.[60] The following exchange then occurred:[61]
A. WITNESS: Okay. Can you tell me the past [sic] part of the question so I can go with that one first?
Q. Is there anything else you would like to say about the following issue? As noted by the delegate –
A. WITNESS: .. (Not transcribable).. before I was, I didn’t get your question properly before, so which I, like .. (not transcribable)..
Q. Mr [applicant], this will be the last time that I repeat this question. . . .
[60] T16.20
[61] T16.25
The Tribunal again repeated the question, to which the applicant gave an answer.[62] Although not entirely clear, it appears that at least part of the answer the applicant gave is that the applicant’s family was not targeted because they “were not involved . . . in the activities”,[63] and it would have been difficult for the family to move.[64]
[62] T16.55
[63] T17.5
[64] T17.15
The Tribunal asked whether the applicant wished to make any comment about the delegate’s concern that the applicant’s decision to return to L village to take up the position of science teacher was inconsistent with the applicant’s claim to have a genuine fear of being harmed by the Taliban as a result of his father’s activities.[65] The applicant said he was not a target “at that time”.[66] The Tribunal then asked for the applicant’s comment about the delegate’s concern that, after the applicant’s father’s death, the applicant did not take any steps to leave Pakistan, and that this may not be consistent with the applicant’s genuinely holding a fear to have been targeted by the Taliban at that time. The applicant stated that “[a]t that time, I wasn’t targeted”.[67]
[65] T17.30
[66] T17.35
[67] T18.10
The Tribunal then asked whether it had a “fundamental misunderstanding” of the applicant’s claims, and stated twice what it understood was the applicant’s claim. The transcript then records the following:[68]
[68] T18.15-T18.35
Q. My understanding is that the reason or part of the reason why you fear that you are being targeted by the Taliban is because your father was a member of the peace council and was a member of the ANP. In fact, you say your father was killed by the Taliban for that reason. Now, my understanding was that that is why you think you will be targeted by the Taliban if you return to Pakistan. Am I wrong about that? Is that not why you fear harm?
A. WITNESS: You know, my father’s case is different. You know, what I did, you know, for the peace council, that’s different. Before, you know, my father was targeted, I wasn’t targeted. Everything used to be happen, you know, and everything was related to him. I wasn’t, you know, new to the ..(not transcribable)..
Q. . . . . My understanding was that one of the reasons why you fear being targeted by the Taliban is because of your father’s activities on the peace council and the ANP. From what you’ve just said, my understanding is now you don’t think that’s why you would be targeted, there’s some other reason. We can talk about that.
A. WITNESS: You mean why I am targeted?
Q. Yes.
A. WITNESS: Why I targeted?
After the applicant’s representative confirmed the Tribunal did not have a fundamental misunderstanding of the case, the Tribunal decided to go “completely free”, and asked (emphasis added): “Why do you think the Taliban would target you, Mr [applicant] if not for your father’s activities?”[69] The applicant answered as follows (emphasis added):[70]
Thanks very much for making it simpler. So ..(not transcribable).. the role my father’s, you know, my father was in the ANP and peace council. So now the problem is that I do work for the peace councils, you know, and they are thinking, like, social work and things like that. And they can’t sit with the males, so it’s a different world for us. So now they’re thinking that I will take over my father’s, you know ..(not transcribable).. and everything. Like, you know, I’m representing my family now. I’m the presentator [sic] of my family so that’s why they are targeting me.
[69] T18.50
[70] T19.5
The Tribunal asked whether the Taliban is targeting the applicant “because of the activities of [the applicant’s] father representing [the applicant’s] family”, noting it was still “very confused about what the actual basis of [the applicant’s] fear is”.[71] The applicant referred to his acting as a scout. The Tribunal again said it was confused about why the applicant claimed the Taliban wanted to harm him, and repeated what it understood the applicant had said: namely, that the Tribunal knew he had acted as a scout for the L Peace Council.[72] After further questions, the Tribunal again attempted to state what it understood were the reasons why the applicant claimed he feared harm by the Taliban:[73]
Q. But it’s not your father’s work on the peace council and not your father’s connection with the ANP?
A. INTERPRETER: So he’s saying according to, like Pashtun culture, if your dad has something, like, the sons [sic] carries on. He’s using inherited word but like taking over. So he’s saying my brother is sick and they know that my brother is sick and he can’t do much, so it’s me who is intelligent, educated and coming to Australia is like a big thing back there. So they’re thinking that if I return, I will take over my dad’s responsibilities, so I will be their target next. So it runs down, like, generation, so whoever killed my dad, his kids know me and I know, like, there’s connections, that kind of connection and they are brainwashed by their parents. So it goes generation to generations.
[71] T19.10
[72] T20.15
[73] T21.35
Towards the end of the applicant’s evidence, after the Tribunal informed the applicant that his “credibility is in issue in these proceedings”, and invited the applicant to “provide any further comment or response to anything that we’ve discussed in the course of the hearing today”, the applicant said (errors in original):[74]
So I wasn’t, you know, targeted because of my father’s association with the ANP and peace council but the target as regarding to my father death so, like, I’m, on the behalf of my father, like, I will represent ANP and peace council on behalf of my father and take his mission power. And I’m the representator on behalf of my family, so that’s why I’m target ..(not transcribable).. Why didn’t he accept ..(not transcribable).. my father by ..(not transcribable) . . .
[74] T25.40
This detailed review of the evidence the applicant gave at the hearing before the Tribunal reveals the following. There is no question that one of the reasons for which the applicant claimed he feared harm from the Taliban was the Father’s Activities and the Tribunal correctly understood the applicant to have made that claim. The transcript reveals, however, that the Tribunal asked the applicant a number of times to explain why he claimed the Father’s Activities caused the applicant to fear harm from the Taliban. The Tribunal initially asked that question in the context of the delegate’s view that the applicant’s family having remained in L village after the death of the applicant’s father was inconsistent with the claim that the applicant feared harm because of the Father’s Activities. It is apparent the applicant had difficulty explaining why he claimed he feared harm from the Taliban because of the Father’s Activities, given that the applicant’s family had remained in L village after the applicant’s father’s death at the hands of the Taliban.
After the Tribunal expressed it had difficulties understanding what the applicant was claiming, the Tribunal indicated to the applicant that, from what the applicant had said, the Tribunal now understood that the applicant was claiming there was “some other reason”, other than the Father’s Activities, why he claimed the applicant feared harm from the Taliban; and the Tribunal then asked why the applicant claimed he feared the Taliban would target him “if not for your father’s activities”.[75] The applicant responded by thanking the Tribunal for “making it simpler”, and then saying that he would be harmed because the Taliban expected the applicant, as the representative of his family, to take over the role the applicant’s father performed when he was a member of the L Peace Council and the ANP.[76] The applicant repeated the substance of this answer two more times during the hearing.[77] The Tribunal characterised the applicant’s evidence as a claim that he feared he would be targeted by the Taliban because “he would culturally inherit the animosity the Taliban had for his father and inherit his father’s political allegiances”.[78]
[75] T18.50. In the Outline of submissions for the Applicant, [10], the applicant suggests the Tribunal may have misheard something the applicant had said. There is nothing to support that suggestion.
[76] T19.5
[77] T21.40
[78] CB207, [66]
Considered in the context of the evidence the applicant gave, the Tribunal found that the applicant’s reliance on his being the representative of his family constituted a different basis for claiming to fear harm from the Taliban than his reliance on the Father’s Activities. The Tribunal considered the applicant’s relying on his being the representative of the family as a “retraction” of the applicant’s relying on the Father’s Activities alone as the basis on which the applicant relied. In other words, the Tribunal found the applicant had withdrawn the Father’s Activities as the basis of his claim to fear harm from the Taliban, and replaced that basis with the claim the applicant feared the Taliban because he was a representative of the family.
Did the applicant “retract” a basis of his claim?
There is no dispute between the parties that the Tribunal concluded the applicant retracted his reliance on the Father’s Activities as a basis for claiming he feared harm from the Taliban. The question is whether it was reasonably open to the Tribunal to so conclude. In my opinion, it was not reasonably open to the Tribunal to so conclude.
The applicant’s claim that he feared harm from the Taliban because he was the representative of the family was not an independent claim. It presupposed the applicant’s claim of fear of the Taliban based on the Father’s Activities. The applicant relied on his being the representative of the family both as a reason for claiming he feared harm from the Taliban because of the Father’s Activities, and as an answer to the Tribunal’s putting to the applicant the delegate’s concern that the applicant’s fear of the Taliban based on the Father’s Activities was inconsistent with the applicant’s family having remained in L village after the applicant’s father was killed.
It is true, as the Minister submits, that on a number of occasions the applicant said the Taliban threatened neither him nor his family when the applicant was in Pakistan. And it is also true that the applicant’s and his family’s not having been threatened by the Taliban after the applicant’s father’s death was a matter on which it was reasonably open to the Tribunal to rely for not accepting the applicant’s claim that he feared harm from the Taliban on the basis of the Father’s Activities. But the applicant’s having stated on a number of occasions that he and his family were not harmed by the Taliban cannot reasonably be read as a retraction by the applicant of his claim of fear of harm from the Taliban based on the Father’s Activities. A finding that an applicant has retracted a claim is a far more powerful reason for not accepting an applicant’s claim than evidence that may reasonably be considered to be inconsistent with a claim the applicant maintains.
Jurisdictional error?
Having concluded it was not reasonably open to the Tribunal to find the applicant had retracted his reliance on the Father’s Activities as a basis of his claimed fear of harm, the next question is whether the Tribunal made any jurisdictional error.
The Tribunal did address each integer of the applicant’s claims. In particular, the Tribunal addressed the applicant’s claims both on the basis of the applicant’s relying on the Father’s Activities, and on the basis of the applicant’s relying on his being the representative of the family. That the Tribunal addressed these integers of the applicant’s claims, however, does not necessarily immunise the Tribunal’s decision from a finding of jurisdictional error.
I have concluded that, for reasons that were not reasonably open to it, the Tribunal found the applicant had retracted his claim of fear of harm from the Taliban based on the Father’s Activities. From that conclusion it must follow the Tribunal did not “consider” that claim, in the sense of giving that claim “proper, genuine and realistic consideration”.[79] It could not have done so because the Tribunal found the applicant retracted his claim of harm based on the Father’s Activities. The Tribunal could not have done so even though the Tribunal did in terms find it was not satisfied the applicant feared harm from the Taliban because of the Father’s Activities. At most, the Tribunal’s conclusion it was not satisfied the applicant had a well-founded fear of harm based on the Father’s Activities must have been based, or at least substantially based, on the Tribunal’s finding that the applicant had retracted that claim.
[79] Bondelmonte v Bondelmonte [2017] FCA 8, [43]
Conclusion and disposition
For reasons that were not reasonably open to it the Tribunal found the applicant had retracted what the Tribunal considered to be a fundamental element of the applicant’s claims. Having so found, the Tribunal did not consider that claim in the sense of giving proper, genuine and realistic consideration to that claim. For that reason, the Tribunal made a jurisdictional error.
I propose, therefore, to order that the Tribunal’s decision be quashed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that the applicant’s application for review be considered by the Administrative Appeals Tribunal according to law.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 2 June 2017
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